The EEOC Weighs in on HIV-Positive Workers

Wyatt Tarrant & Combs LLP, Lexology

The Equal Employment Opportunity Commission (EEOC) has long considered HIV infection to be a disability within the scope of the Americans with Disabilities Act (ADA). From 1997 to 2014, the EEOC received in excess of 4,000 charges alleging ADA violations based on HIV status. In 2014, the EEOC resolved 197 charges and obtained over $800,000 for individuals who filed charges based on HIV status. The EEOC has also filed several lawsuits over the past few years against employers based on claims alleging failure to hire, discrimination and failure to accommodate individuals with HIV.

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HIV and the workplace: an update for employers

Lexology.com
Ogletree Deakins
Denise Cotter Villani and Dallan F. Flake
USA

Employers need to educate themselves about their potential obligations to HIV-infected employees in the workplace. The need for employers and their supervisors and managers to understand the relationship between the Americans with Disabilities Act (ADA) and HIV-infected employees is highlighted by the recent settlement between the Equal Employment Opportunity Commission (EEOC) and L&R Express Food Mart Inc., which runs a chain of convenience stores.
A Recent Case Study
The EEOC sued L&R on behalf of an employee who claimed that L&R fired him after discovering he was HIV-infected allegedly because the company feared sales would suffer if customers learned about the employee's medical condition. The settlement, which was announced in January, requires the company to pay $19,000 in damages to the employee and to designate and train, to the EEOC's specifications, an "Equal Opportunity Officer." The Equal Opportunity Officer will be responsible for implementing policies and procedures to ensure ADA com-pliance and for training all L&R supervisors and managers on the anti-discrimination provisions of the ADA and other discrimination laws. As part of the settlement, L&R must submit annual compliance reports to the EEOC.
Employee Rights
In the past, conflicting court opinions created confusion for employers about the rights of HIV-infected employees in the workplace. But recent decisions, often relying on the 2009 amendments to the Americans with Disabilities Act (ADA Amendments Act) and the Department of Justice's most recent publication on HIV in the Workplace called Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS (DOJ Guidance), have clarified the standards that HIV-infected employees must meet to prove they are disabled. Relying on these publications, courts are increasingly finding that HIV-infected employees qualify as disabled for ADA purposes. Moreover, courts now routinely hold that HIV-infected employees have a constitutionally protected right to privacy regarding their HIV status.

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