March 24, 2016
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Ronda B. Goldfein
Ronda B. Goldfein is executive director of the AIDS Law Project of Pennsylvania
Mark Spencer is the communications consultant for the AIDS Law Project of Pennsylvania and a freelance writer.
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A body of federal, state and local laws, regulations and ordinances
exist to protect people with HIV and AIDS from discrimination.
Sadly, despite all the progress that has occurred, we still need
those tools to make sure people with HIV and AIDS are treated fairly at
work, in school, while getting health care and in hundreds of other
daily interactions.
We see it all the time at the AIDS Law Project of Pennsylvania. For
28 years, we have represented people with HIV and AIDS free of charge.
We have taken on doctors, health clubs, hospitals, bus companies,
landlords, dentists, assisted living centers, barbers, rehabilitation
centers and a host of government agencies and employers on behalf of
clients who were wronged.
To illustrate the breadth of discrimination people with HIV and AIDS face, the AIDS Law Project recently did an analysis of 10 years of our cases involving public accommodations and employment.
The survey revealed that health care is overwhelmingly the service most
likely to be illegally denied to people with HIV and AIDS. Of all our
public accommodations cases, 76% are health care denials.
Here's what you need to know about laws protecting you against HIV-related discrimination:
- Federal, state and local laws prohibit discrimination against people with HIV and AIDS in all workplace settings, state and municipal services, commercial facilities, transportation, telecommunications and public accommodation, which are defined as public and private entities that provide services to the general public.
- The U.S. Supreme Court has interpreted federal law as protecting people with HIV -- including those who may be asymptomatic -- because the virus limits certain major life activities.
- The law also prohibits discriminating against a person with HIV or AIDS because an employer fears it will lose customers, or because co-workers are afraid of working with a person with HIV.
- It is also illegal to discriminate against someone who associates with a person with HIV or AIDS.
At the federal level, the main anti-discrimination laws are the
Americans With Disabilities Act (ADA) and the Federal Rehabilitation
Act.
- The ADA prohibits disability-based discrimination in employment, state and municipal services, public accommodations, commercial facilities, transportation, and telecommunications.
- The Federal Rehabilitation Act prohibits disability-based discrimination by federal employers or contractors or by programs receiving federal funding.
Many states also have laws that prohibit discrimination.
Although they often parallel the federal ADA, there are differences from
state to state.
The ADA, for example, covers entities with 15 or more employees. The
size of the entities covered under state laws ranges from one employee
to 20. The type of discrimination prohibited also varies widely.
The National Conference of State Legislatures has published a state-by-state list of anti-discrimination employment laws and another list of public accommodations laws.
Take these steps to launch a discrimination complaint:
1. Do a Self-Assessment
This is an essential step and in some ways is the most difficult.
Lots of behavior can be reprehensible and hurtful, but not illegal.
Take for example, a young, gay man who decided to make the trek to
his family's home for Thanksgiving. It was a festive occasion and the
family put out its best dinnerware for everyone but the young man.
Fearful of AIDS, he was served on a paper plate with plastic utensils that could be thrown away.
Ignorant? Yes. Hurtful? Absolutely. But because it transpired in a private home, it is not illegal discrimination.
Take the same scenario and move it to a restaurant or a company or school cafeteria and it would absolutely be illegal.
Stigma is the strong disapproval directed toward people with HIV for
no reason other than they have the virus. Discrimination is a specific
incident that occurs when that stigma is acted upon. It must be more
than something that hurts your feelings. To be the victim of
discrimination, you must have lost or been denied something. You must
have been treated differently from other people in the same
circumstances.
Stigma can be devastating for an individual and, on a broader level,
bad for public health care policy. Among other things, it discourages
testing, a key component of the fight against HIV and AIDS.
But some of those battles need to be fought with education or political action, not in the courts.
2. Act Quickly
Don't delay. Discrimination laws have a statute of limitations
associated with them, that is, a time limit by which you must file your
complaint.
Miss that deadline and you could well have lost your chance to seek justice.
This is particularly important in employment discrimination cases.
Federal employment discrimination cases start with filing a complaint with the Equal Employment Opportunity Commission. Although several factors can influence the statute of limitations, the basic guideline to follow is 180 days.
Many states have similar agencies, generically referred to as State
Fair Employment Agencies. Contact information for the state agencies,
which go by various names, is available on the EEOC website.
3. Call a Lawyer
Don't go it alone. Laws and regulations can be complex, as can be the
processes to pursue a complaint, whether through the courts or an
administrative agency.
It can be almost impossible for an average person to navigate the
system. That's where lawyers and other legal assistance come in. Having a
trained professional on your side can make the difference between
winning a claim and having it dismissed on technical or other grounds.
The AIDS Coordination Project of the American Bar Association has published an extensive list of legal resources for people with HIV and AIDS.
You could also call a local HIV/AIDS organization or a LGBT group in
your area. If you live in Pennsylvania or southern New Jersey, get in
touch with us.
With all this in mind, do not agree to anything in writing before you
have received legal advice. You may agree to things that could damage
your case or accept a settlement well below what you otherwise could
get.
4. Document Your Experience
You will need to be able to prove that you experienced discrimination and that it was because of HIV or AIDS.
Keep all documents, whether on paper or electronic, such as emails.
Keep notes on meetings and other interactions you have with people
involved in the situation.
That being said, there is one important caveat.
It's great if you keep a diary of your situation, but dangerous if
you mix the facts with a more personal take on your experience, such as
inappropriate or untoward comments about bosses and coworkers. If you
want to use the diary to establish your case, you could be required to
disclose the entire document.
A little discretion goes a long way.
Finally, if you have been the target of discrimination, remember that
you are not alone. There are laws to protect you, and people and
organizations prepared to help.
Copyright © 2016 Remedy Health Media, LLC. All rights reserved.
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