SHOULD YOU TELL YOUR EMPLOYER THAT YOU'RE HIV+?

Ron Boyter
Atlanta Legal Aid Society
AIDS Legal Project
October 1, 2003

You Have the Right to Remain Silent

[Ring, ring]

"Hello, Legal Project."

"Yes, I need to speak with someone about my job."

"OK, I am one of the attorneys here, how can I help you?"

"Well, about a month ago, I told my supervisor that I am HIV positive. It seemed like the right thing to do at the time. I was tired of hiding. She seemed to handle it fine. She was very sympathetic and told me that she would help in any way she could. Her reaction made me glad I told her. It was such a relief to let someone know. But within a week, all of that changed."

"What do you mean 'all of that changed'?"

"Well, it just seemed that my coworkers weren't as friendly with me as they were before. I seemed to be out of the gossip circle overnight and people that had always included me in going out for smoke breaks suddenly stopped asking me along. No one really talks to me now; I feel like an outsider. I have also noticed that people have been spraying areas where I have been with disinfectant. I approached my supervisor about this and she said that I was just being paranoid, and assured me that she had not told anyone that did not need to know. Then, just two days later, the department manager asked me into his office. He told me that my performance was down and he wondered if I was having any health problems. He also told me that I was taking too many smoke breaks, and that I needed to pay more attention to my work. I did not know what to say. I have been taking fewer smoke breaks now than I used to because no one wants to smoke with me. I was really mad and scared. Then, on Friday, I received a notice with my pay stub that I was going to be laid off. I know that they are trying to get rid of me because I'm positive."

"First of all, why did you inform your supervisor that you were positive? Were you having problems or taking more time off?"

"No, I just thought that someone at work needed to know, you know, in case of an accident or something. And besides, my supervisor and I had gotten pretty close. She always talked to me about her problems and stuff and I wanted to be able to talk about my life with her. I thought I could trust her."

Unfortunately, phone calls like this one are not rare in our office. I often speak with people who have disclosed their HIV status to their employer only to discover that discrimination is alive and well here in the "city that is too busy to hate." I am not suggesting that everyone who discloses this information at work suffers some form of adverse employment action; unfortunately, in my position I seldom hear the good news stories.

It seems that people disclose their HIV status for many varied reasons. The purpose of this article is to discuss some of the law that exists pertaining to the need to disclose this information, and when it could be relevant to work. I understand that there are many groups that advocate the importance of disclosing a person's status. Many people believe that keeping the information hidden can cause stress that is unhealthy. Others believe that letting coworkers and friends know is a way of putting a face on the pandemic, and thus taking a step toward widespread acceptance. While I do not disagree with either of these suggestions, I want people to be able to make an informed decision about disclosure in the workplace and not to disclose out of a perceived duty to their employer.

Generally, one does not have a duty to disclose their status to their employer. While no case that I could find directly dealt with the issue of a duty to disclose to one's employer, there are several cases that allow us to understand why there is no duty to disclose to one's employer. The only case that I found that dealt with a duty to disclose one's HIV status was out of the Appellate Court of Illinois.

The case was Doe v. Noe, was decided in 1997, and the facts were as follows: Doe had undergone two different but related surgeries performed by Noe. Subsequent to the surgeries, Noe died from an AIDS related illness. Doe then sued Noe's estate, the hospital, and the doctor that had assisted Noe in the performance of the surgeries. Doe alleged that Noe had a duty to disclose his status to her while getting her "informed consent" to the surgeries, and since he had not, her consent was not informed and thus the surgeries were a battery. She also brought actions for both intentional and negligent emotional distress.

The Court determined that because of the unique nature of the doctor patient relationship, and the fact that doctors were supposed to get a patient's informed consent after discussing the possible consequences of the surgery, that Noe did have a duty to disclose. The court reasoned that since there was a risk of transmission of HIV during the surgeries, the doctor was under a duty to disclose that risk to the patient, even though such a disclosure would be forcing him to disclose his own status. Interestingly, though, the court ruled that the hospital had neither a duty to know of the surgeon's status, nor a duty to disclose this to the patient, since the duty came solely out of the doctor's duty to disclose possible risks in order to obtain an informed consent from the patient.

As you can see, this is a very narrow and limited decision. The court only found a duty to disclose because the law already imposed a duty of disclosure on the doctor. The court simply found that a risk existed, and since the doctor had a duty to disclose risks, that his status fell within those parameters. It is important to note that the court did not find a similar duty imposed on the hospital. It also found that the hospital had no duty to know of its surgeons HIV status.

While the previous case is the only case that dealt with disclosure, several courts have reached conclusions regarding when HIV prevents one from performing her job and thus prevents her from being "otherwise qualified" under the Americans with Disabilities Act (ADA), the most significant federal statute that protects people living with HIV/ AIDS from discrimination. While these do not impose a duty to disclose one's status, they do identify circumstances in which an employer may investigate whether an employee poses a direct threat to himself or others due to the nature of her job. 

First of all, to bring a claim of discrimination under the ADA one must show the following: 1) that one is a person with a disability, 2) that one is otherwise qualified for the job or position, 3) that one suffered an adverse employment action in a term or condition of employment, and 4) that the adverse employment action was because of one's disability.

But under the ADA, if one poses a direct threat to oneself or others, which cannot be overcome by a reasonable accommodation, then one is not "otherwise qualified" for the job or position, and thus an employee cannot bring an action against his employer due to an adverse employment action.

In determining whether one "poses a direct threat," the courts ask four questions: 1) How is the disease transmitted or what is the nature of the risk?, 2) How long will the carrier be infectious or what is the duration of the risk?, 3) What is the potential harm to third parties or what is the severity of the risk?, and 4) What is the probability that the disease will be transmitted and cause harm to others? All of the cases I found that discuss HIV have been determined by the fourth question or the likelihood of transmission.
For instance, the 6th Circuit, in Estate of Mauro v. Borgess Medical Center ruled that the ADA was not violated when a hospital laid off a surgical technician because he was HIV positive. The court found that the position of surgical technician required that one participate in what the CDC refers to as "Exposure-prone invasive procedures" which are characterized by the simultaneous presence of one hand or fingers and a sharp instrument in a "poorly visualized or highly confined anatomical site." Since there was no way to accommodate the surgical technician without relieving him from performing the essential functions of his job, the court held that no violation had occurred since he was not otherwise qualified for the job. The same result was reached in the 5th Circuit in Doe v. University of Maryland Medical System Corporation and by the 4th Circuit in Bradley v. University of Texas M.D. Anderson Cancer Center and Kere in the 11th Circuit in Waddell v. Valley Forge Dental.

Two other cases of importance where the court found no violation of the ADA deal with the refusal to be tested. The 6th Circuit, in EEOC v. Prevo's Family Marketplace, Inc., found that no violation of the ADA had occurred when a grocery laid off an employee who had disclosed that he was HIV positive until he would agree to be tested to determine whether he posed a direct threat to fellow employees. The court reasoned that the employer had right to determine, using modern medical technology, whether the employee would pose a direct threat if he cut himself while working with the produce. The issue of testing came up because once the his employer told him that he could not work with the produce until the determination was made, the employee began denying that he was positive and refused to submit to a test to determine whether he posed a direct threat.

Similar to the above case, in Doe by Lavery v. Attorney General of the United States, out of the 9th Circuit, the FBI refused to allow a physician to perform routine exams on its agents because the physician would not provide any information related to his illness and the likelihood of transmission. The court found that while there was no likelihood of transmission, the doctor's absolute refusal to provide information to the FBI so that they could make a determination of whether the doctor posed a direct threat rendered him not otherwise qualified for the position.

In both of the above cases, the court did not rule on whether the two individuals posed a direct threat, they only address the right of an employer to be able to make a determination as an employee's possible direct threat to others. I am confident that both of these courts would have determined that no direct threat existed in either of these cases had they been required to address that issue.

In cases where the courts have addressed the issue of a direct threat caused by HIV, every court has found that none exists outside the above cases that deal with exposure-prone invasive procedures. In Doe v. District of Columbia, an HIV-positive policeman sued for reinstatement after being fired because of his HIV status. The city argued that the officer would be a direct threat if he was injured and if he was required to perform mouth to mouth resuscitation. The court found that the officer did not pose a direct threat stating that the risk of transmission on the job, even a policeman's job, was remote and that the types of transmission that the city was citing were only theoretical in nature.

The same conclusion was reached by a district court here in Georgia in a case involving an HIV positive school teacher. In Doe v. DeKalb Board of Education, a teacher brought an action under the ADA when he was removed from his classroom of children with severe emotional and behavioral problems and placed in a classroom with children with less severe disabilities. The School Board argued that since the students with severe problems had a tendency to bite, they were at risk. The court determined, based on the current medical data, that transmission from biting had never occurred and that the risk was theoretical at best. Courts in other parts of the country have reached the same conclusion in cases involving other school teachers and even a cruise director.

The United States Supreme Court recently decided that direct threat provision of the ADA can also apply to the disabled individual.  The court ruled that an employer could refuse employment to an employee with respiratory disease because the job itself posed a threat to the employee's own health.

It seems that the courts have paid attention to the medical evidence that exists and have refused to allow prejudice and paranoid beliefs to justify the discrimination against people living with HIV/AIDS in the workplace. As the cases above demonstrate, one does not have a duty to disclose to their employer. An employer can only request information that is necessary and job related. In some limited cases an employer may be able to make inquiries to determine whether a direct threat exists. If your employer begins that process I would suggest that you consult an attorney immediately to assist you through the process and to protect your rights.

Remember: The law often changes. Each case is different.  This flyer gives you general information. It is not meant to give you specific legal advice.  Talk to a lawyer if you have questions.

Ron Boyter
Atlanta Legal Aid Society
AIDS Legal Project
October 1, 2003