Yes, a Florida Court Just Ruled That HIV is NOT an ADA Disability

By Eric B. Meyer

Yesterday, the EEOC issued two new publications on the rights of HIV-positive individuals in the workplace.

As EEOC Chair Jenny Yang underscored,

Individuals with HIV infection should know that the ADA protects their rights in the workplace, including the right to reasonable accommodations.”

The implication here is that HIV is a disability under the Americans with Disabilities Act. Indeed, the ADA regulations note that it should be “easily concluded” that HIV substantially limits one or more major life activities. Further, the Department of Justice, Civil Rights Division recognizes that HIV is an ADA disability.

Florida court feels it needs more proof

Well, tell all that to a federal court in Florida.

In this recent opinion (in Rodriguez v. HSBC Bank USA), the court concluded that,

Article Continues Below

While the hurdle necessary to establish that HIV is a disability per the ADA may be low, it is a hurdle nonetheless. Leaping it requires some proof.”

Thus, where a plaintiff claims ADA discrimination based on HIV status, the plaintiff still must show how the HIV substantially limited one or more major life activities. Otherwise, the plaintiff cannot prove that he has an actual disability. (In this particular case, the plaintiff presented no such evidence. Indeed, he testified at deposition that his HIV status “never” affected his ability to perform the functions of his job).

Employer takeaways

Yeah, but …

  1. This case is an exception to the rule. Most plaintiffs will be able to clear the low bar of demonstrating how HIV substantially limits a major life activity.
  2. And even if HIV isn’t an actual ADA disability, it may still be an ADA disability. Huh? Well, if an employee with HIV is “regarded as” disabled and the employer discriminates against the employee on that basis, that would violate the ADA, too.
  3. If an employee with HIV requests a reasonable accommodation, don’t waste any psychic energy on debating whether that employee is actually disabled. Instead, shift your attention to engaging in an interactive dialogue with the employee to determine what reasonable accommodation(s) will allow the employee to perform the essential functions of the job.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

Topics

2 Comments on “Yes, a Florida Court Just Ruled That HIV is NOT an ADA Disability

  1. Good points made here. Definitely disagree with Florida court as HIV is a condition that attacks the body’s immune system and substantially limits the body’s immune function. Due to the unfortunate prejudice and stereotyping that individuals with HIV face, as you mention the EEOC recently reinforced the focus should be on reducing discrimination and providing reasonable accommodations. Beth Zoller, XpertHR Legal Editor.

  2. There’s a difference between HIV and AIDS, a point that I hope the law, this court and you folks in the HR business understand. The two conditions are commonly confused. HIV is the infection that can progress to AIDS, the disease that has many more potential impacts on the body and its ability to continue normal functions. Progress with medicine has drastically reduced disability by AIDS and it is routine to find those with the disease and their medical team treating it as a chronic condition like Diabetes. That said, there are many side effects from these treatments that would require some accommodation — not to mention the impact AIDS (not HIV) can manifest in a person’s body. Perhaps all this is not news to this audience, but it would be helpful to your employees and potential hires to demonstrate that you know the difference and have a plan in place for staff who may be great performers while dealing with HIV but who may need some accommodation should progression to AIDS cause issues.

Leave a Comment

Your email address will not be published. Required fields are marked *