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Yes, it is illegal to discriminate against a person in an employment setting because he or she is HIV positive. Recently, the Equal Employment Opportunity Commission filed a lawsuit against Popeye’s Chicken on behalf of an HIV applicant who claims the restaurant denied him employment because of his medical condition.

The applicant alleges that he mentioned on his application that he had left his most recent job because of his medical condition. During his interview, he said he was asked to disclose his medical condition. When the interviewer was told he was HIV positive, he told the applicant he couldn’t work for the restaurant because of his medical condition. The lawsuit alleges the restaurant violates the Americans with Disabilities Act by refusing to hire him because of his disability (HIV). The lawsuit is asking for compensation for back pay, relocation expenses, job search expenses, compensation for emotional pain, punitive damages, other damages and court costs.

Under both federal and state law, discriminating against someone in any aspect of employment based on a disability is illegal. A “disability” means a physical or mental impairment that substantially limits one or more major life activities, and includes being HIV positive. HIV positive individuals are considered to be disabled, even if they have not outwardly manifested symptoms.

Unfortunately, many employers, such as the restaurant mentioned above, refuse to hire people or will fire workers once they become aware they are HIV positive. This is done for a lot of reasons, including because they fear the individual will become sick in the future, will infect coworkers or customers, or will send their insurance costs soaring. However, this is illegal. A hiring decision must be made on the person’s ability at the current time. It is also illegal for employers to decide against hiring people because of fears about insurance costs or absenteeism.

In addition, prospective employers cannot ask a job applicant to take a medical exam before making a job offer. An employer can ask about an applicant’s ability to perform specific job functions that are vital to the position, and can deny the applicant a job if he or she can’t perform the job because of health issues. Employers are, however, required to make “reasonable accommodations” for disabled employees, including those that are HIV positive. A reasonable accommodation is any modification or adjustment to a job that will enable the qualified applicant or employee with a disability to perform the job. The employer is not required to make an accommodation if it would impose an undue hardship on the employer’s business.

An employer also cannot discriminate against employees with disabilities by refusing to provide them with health insurance. If an employer offers other employees health insurance, the insurance must be offered to the HIV positive employee also.

At Liberty Law, Micha Star Liberty believes that no one should be discriminated against because of a disability. If you have experienced discrimination at work, you may be entitled to compensation, which could include lost wages, compensation for benefits, pain and suffering, and more. If you are in the Oakland area, including San Francisco, Fairfield, Tracy, Oakland, Berkeley and the surrounding area, call Micha Star Liberty, Oakland employment attorney, at 415-896-1000 or 510-645-1000. She will be happy to talk to you about your case.



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