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The rights of HIV+ people in the workplace

Posted Nov 09 2010 1:15pm

The following is a guest post from Chris Dixon, who agreed to cover a recent workshop on HIV privacy and discrimination in the workplace, conducted by the Hispanic Black Gay Coalition (HBGC) and Gay and Lesbian Advocates and Defenders (GLAD). AIDS Action Committee co-sponsored the event. Chris, a college student, is a CSR/Banker and HBGC’s Community Service Coordinator. Feel free to contact him at cadprince89@gmail.com .

“Don’t ever underestimate the power of homophobia that is in the work place and what and what your job will do to get rid of you.” –Workshop Participant

After that bold statement, it became very clear how important it was for people affected by HIV/AIDS to know their rights and the legal protections in place when it comes to the workplace.

On Saturday, October 23, the Hispanic Black Gay Coalition’s Vice Chair Nephtali Rosado and Ben Klein, the AIDS Law Project Director at GLAD, led a workshop on HIV, privacy and discrimination in the workplace at GLAD’s downtown Boston offices. The presenters kicked off this powerful workshop by sharing their personal stories and stressing the importance of people living with HIV knowing the laws in place that protect them from workplace discrimination.

To start, Mr. Klein asked the crowd, “Is it legal for the interviewer to ask your age?” A rousing NO followed from the participants. Mr. Klein then asked, “Is it legal to be asked about your HIV status?” Some said no, some yes, and some were clearly uncertain.

To address the confusion, Mr. Klein took us through the details of the main laws protecting HIV-positive people in the workplace – the Massachuetts General Law c. 151B, Section 4 (16) and the Americans with Disabilities Act (ADA). Protections include the right to refuse an employer’s request that you take an HIV test; the right to not be asked about medical history, receiving disability benefits, and things of that nature; and the right to be protected from discrimination if you’re not HIV-positive, but are just assumed to be or are someone who “associates” with HIV-positive people, like a family member. (For detailed information, check out GLAD’s publication, “Legal Protections for People Living with HIV in the Workplace,” or call their Legal Infoline at 800-455-GLAD.)

The participants in the workshop took turns standing up and telling their horrifying stories of homophobia and discrimination at the hands of employers. Many also said they were unaware of their rights when going through these ordeals.

One participant stood up and told his story of being fired after his boss found out that he is HIV positive. The employee had worked in an executive-level position at his company for nineteen years. He went on to share how his company implemented rules to isolate him in an attempt to distance him and to find a legal way to fire him.

“My job went the distance and tried to find any loop hole to fire me.”

Mr. Klein took this man’s story as a moment to show how important it is to know your rights in the workplace and the laws set up to protect you from discrimination. He gave us other examples of unlawful discrimination, such as:

  • An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers or clients.
  • An employer cannot refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
  • An employer cannot refuse to hire a person because it will increase health or worker’s compensation insurance premiums.

Mr. Klein stressed that many workers are “at will” employees, meaning they can be fired “without cause,” but if it can be proved that discrimination was the basis for the decision to fire, that makes it illegal. He gave examples of ways to assess whether or not you’re being fired for work-related reasons or for discrimination. For instance, if your boss says you’re being fired for lateness, think about how other employees who have also been late to work are treated. Are they treated differently than you are? It also helps to be aware of what policies are in place in the employee handbook. Were correct procedures followed?

The last thing covered was the privacy of employee medical information. According to the Massachusetts General Law c. 214, Section 1B, “a person shall have a right against unreasonable, substantial interference with his privacy.” This statute was constructed to prohibit disclosure of facts about an individual of a highly personal or intimate nature. During the workshop there was a common consensus that you shouldn’t disclose your status if it isn’t necessary for a business reason. Nor should you lie on any paper, because it can you used against you.

In closing the panel shared the fact that a person has a constitutional right to privacy when it comes to their HIV status. Courts have based this on the Due Process Clause of the U.S. Constitution, which creates a “privacy interest” in avoiding disclosure of certain types of personal, intimate information.

I’m very glad I participated in this workshop, and now have a chance to share my experience and knowledge with you. I urge people to look deeper into each law and gain a fuller understanding of the protections we do have.

Above all, know your rights. I learned so much Saturday afternoon. And from people’s unique stories it broke my heart to know that people are being mistreated and abused in the workplace. We have to come together to broaden the communities understanding of the laws in place to protect people with HIV/AIDS. Because these laws are in place to protect us above all else.

Read the GLAD publication I mentioned earlier. It greatly details all the laws in place for people affected by HIV/AIDS in the workplace. If you have a legal issue, you can also call AIDS Action Committee’s Legal Intake Line at 617.450.1317 or email their staff attorneys at legalservices@aac.org . Attorneys at both organizations can help.

Know the rights in place to protect you.

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