Sunday, April 17, 2016

Discrimination Against People With HIV Is Illegal. Here's What to Do if It Happens to You

March 24, 2016
Ronda B. Goldfein
Ronda B. Goldfein
A body of federal, state and local laws, regulations and ordinances exist to protect people with HIV and AIDS from discrimination.
Sadly, despite all the progress that has occurred, we still need those tools to make sure people with HIV and AIDS are treated fairly at work, in school, while getting health care and in hundreds of other daily interactions.
We see it all the time at the AIDS Law Project of Pennsylvania. For 28 years, we have represented people with HIV and AIDS free of charge.
We have taken on doctors, health clubs, hospitals, bus companies, landlords, dentists, assisted living centers, barbers, rehabilitation centers and a host of government agencies and employers on behalf of clients who were wronged.
To illustrate the breadth of discrimination people with HIV and AIDS face, the AIDS Law Project recently did an analysis of 10 years of our cases involving public accommodations and employment. The survey revealed that health care is overwhelmingly the service most likely to be illegally denied to people with HIV and AIDS. Of all our public accommodations cases, 76% are health care denials.

AIDS Law Project of Pennsylvania Public Accommodations Discriminations Cases, 2005-2015, Type of Service Denied

Here's what you need to know about laws protecting you against HIV-related discrimination:

  • Federal, state and local laws prohibit discrimination against people with HIV and AIDS in all workplace settings, state and municipal services, commercial facilities, transportation, telecommunications and public accommodation, which are defined as public and private entities that provide services to the general public.
  • The U.S. Supreme Court has interpreted federal law as protecting people with HIV -- including those who may be asymptomatic -- because the virus limits certain major life activities.
  • The law also prohibits discriminating against a person with HIV or AIDS because an employer fears it will lose customers, or because co-workers are afraid of working with a person with HIV.
  • It is also illegal to discriminate against someone who associates with a person with HIV or AIDS.
At the federal level, the main anti-discrimination laws are the Americans With Disabilities Act (ADA) and the Federal Rehabilitation Act.
  • The ADA prohibits disability-based discrimination in employment, state and municipal services, public accommodations, commercial facilities, transportation, and telecommunications.
  • The Federal Rehabilitation Act prohibits disability-based discrimination by federal employers or contractors or by programs receiving federal funding.
Many states also have laws that prohibit discrimination. Although they often parallel the federal ADA, there are differences from state to state.
The ADA, for example, covers entities with 15 or more employees. The size of the entities covered under state laws ranges from one employee to 20. The type of discrimination prohibited also varies widely.
The National Conference of State Legislatures has published a state-by-state list of anti-discrimination employment laws and another list of public accommodations laws.
Take these steps to launch a discrimination complaint:

1. Do a Self-Assessment

This is an essential step and in some ways is the most difficult. Lots of behavior can be reprehensible and hurtful, but not illegal.
Take for example, a young, gay man who decided to make the trek to his family's home for Thanksgiving. It was a festive occasion and the family put out its best dinnerware for everyone but the young man.
Fearful of AIDS, he was served on a paper plate with plastic utensils that could be thrown away.
Ignorant? Yes. Hurtful? Absolutely. But because it transpired in a private home, it is not illegal discrimination.
Take the same scenario and move it to a restaurant or a company or school cafeteria and it would absolutely be illegal.
Stigma is the strong disapproval directed toward people with HIV for no reason other than they have the virus. Discrimination is a specific incident that occurs when that stigma is acted upon. It must be more than something that hurts your feelings. To be the victim of discrimination, you must have lost or been denied something. You must have been treated differently from other people in the same circumstances.
Stigma can be devastating for an individual and, on a broader level, bad for public health care policy. Among other things, it discourages testing, a key component of the fight against HIV and AIDS.
But some of those battles need to be fought with education or political action, not in the courts.

2. Act Quickly

Don't delay. Discrimination laws have a statute of limitations associated with them, that is, a time limit by which you must file your complaint.
Miss that deadline and you could well have lost your chance to seek justice.
This is particularly important in employment discrimination cases.
Federal employment discrimination cases start with filing a complaint with the Equal Employment Opportunity Commission. Although several factors can influence the statute of limitations, the basic guideline to follow is 180 days.
Many states have similar agencies, generically referred to as State Fair Employment Agencies. Contact information for the state agencies, which go by various names, is available on the EEOC website.

3. Call a Lawyer

Don't go it alone. Laws and regulations can be complex, as can be the processes to pursue a complaint, whether through the courts or an administrative agency.
It can be almost impossible for an average person to navigate the system. That's where lawyers and other legal assistance come in. Having a trained professional on your side can make the difference between winning a claim and having it dismissed on technical or other grounds.
The AIDS Coordination Project of the American Bar Association has published an extensive list of legal resources for people with HIV and AIDS.
You could also call a local HIV/AIDS organization or a LGBT group in your area. If you live in Pennsylvania or southern New Jersey, get in touch with us.
With all this in mind, do not agree to anything in writing before you have received legal advice. You may agree to things that could damage your case or accept a settlement well below what you otherwise could get.

4. Document Your Experience

You will need to be able to prove that you experienced discrimination and that it was because of HIV or AIDS.
Keep all documents, whether on paper or electronic, such as emails. Keep notes on meetings and other interactions you have with people involved in the situation.
That being said, there is one important caveat.
It's great if you keep a diary of your situation, but dangerous if you mix the facts with a more personal take on your experience, such as inappropriate or untoward comments about bosses and coworkers. If you want to use the diary to establish your case, you could be required to disclose the entire document.
A little discretion goes a long way.
Finally, if you have been the target of discrimination, remember that you are not alone. There are laws to protect you, and people and organizations prepared to help.
Ronda B. Goldfein is executive director of the AIDS Law Project of Pennsylvania
Mark Spencer is the communications consultant for the AIDS Law Project of Pennsylvania and a freelance writer.

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In addition to this information you can click the "law and policy" tab above for additional legal resources for each state in the US. For international legal representation please contact me directly.