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Firing Of Kansas Man Living With HIV Shows We Have a Long Way to Go to End HIV Discrimination

Employment is an essential part of leading an independent, self-directed life. One’s overall well-being and financial health can be more stable with a paying job.

When Armando Gutierrez, a 31-year-old employee from The Big Biscuit in Overland Park, Kansas told his boss he was HIV-positive, he never expected to be fired from his job. According to a complaint filed with the U.S. District Court for the District of Kansas, Gutierrez had been working as a server at The Big Biscuit for a year when he was diagnosed with HIV in December 2018. The suit claims Gutierrez lost his job shortly after he disclosed his status with a manager in hopes his employer would sign a form that would help him get medical assistance from a Kansas state program for people with HIV.

Upon learning of Gutierrez’s medical condition, management allegedly changed Gutierrez’s schedule despite an agreement made when he was hired about a year earlier that he couldn’t work Sundays because of “family commitments.” When he expressed his concerns around the schedule change, the plaintiff claims he was promptly fired. Frustrated by this injustice, Gutierrez filed a lawsuit in federal court arguing he had been discriminated against in violation of the Americans with Disabilities Act (ADA)—a federal law passed in 1990 that prohibits discrimination against anyone based on disability.

Under the ADA Amendments Act of 2008, HIV meets the definition of a disability under federal and state laws because people with HIV/AIDS can demonstrate that they are disabled simply by showing that their unmedicated HIV/AIDS substantially limits the functions of their immune system. That means an individual living with HIV is protected from discrimination related to employment, housing, government services, and access to public areas. However, despite legal protections, HIV stigma and discrimination persist and continue to permeate the daily lives of people with HIV.

Although much progress has been made in the past few decades when it comes to fighting employment discrimination against people with HIV/AIDS, unfortunately, incidents like Gutierrez’s case still occur. In fact, the Equal Employment Opportunity Commission (EEOC), which handles reports of workplace discrimination, said it received 195 claims of discrimination last year against employers for firing workers because they had the virus. And in most cases, even when faced with discrimination, a person living with HIV is not likely to file a complaint. The multi-layered bureaucratic process along with the cumbersome process of filing a complaint across different government offices, the cost of legal fees, and the risk of being prosecuted and criminalized because of their HIV status just discourages many individuals from pursuing legal action.

These incidents clearly demonstrate that there remains a great deal of stigma around HIV: the product of lack of education around the disease fueled by a culture of fear. A 2012 survey by the Kaiser Family Foundation reported that one in five Americans said they would be uncomfortable working with someone who is HIV-positive or has AIDS, 26% would be uncomfortable if their child’s teacher was HIV-positive, and 44% would be uncomfortable if their food was prepared by someone with HIV. It is worth noting that someone can’t get HIV by eating food handled by someone with HIV, according to the US Centers for Disease Control and Prevention (CDC). “Even if the food contained small amounts of HIV-infected blood or semen, exposure to the air, heat from cooking, and stomach acid would destroy the virus,” says the CDC.

Despite the science, many people living with HIV, particularly those who are socially, racially, and economically excluded, are continuously targeted and continue to be ostracized and discriminated because of their HIV status. It is illegal and unfair to fire someone based on their HIV status. By placing those who are aware of their HIV-positive status at increased risk of being fired or prosecuted, these practices contradict human rights protections and create additional barriers to testing, treatment, and disclosure of HIV status. Beyond what the statutes say formally, in practice, successfully using the law to remedy and challenge discrimination remains a challenge for many people living with HIV/AIDS or members of other groups facing discrimination, given historic systemic problems.

In the face of these challenges, AIDS United is committed and will continue to advocate for a protective legal environment and the removal of punitive policies, practices, stigma and discrimination that impede effective public health responses to HIV.

More resources on HIV, employment discrimination, and the law, can be found by visiting the links below:
The Center for HIV Law and Policy

Posted By: AIDS United, Policy Department - Friday, November 15, 2019

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