Discrimination Against HIV-Positive Workers

For decades, fear spawned widespread discrimination against people with HIV/ AIDS that resulted in sufferers losing their homes, jobs, education opportunities and access to medical and social services. sad

A series of federal protections, beginning with the 1990 Americans With Disabilities Act (ADA) and the U.S. Supreme Court case of Bragdon v. Abbot, made discrimination on the basis of HIV/ AIDS unlawful. There is also HIPPA (Health Insurance Portability and Accountability Act of 1996) which protects patients’ privacy.  The U.S. Department of Human Services Office for Civil Rights now offers a clean breakdown of “Your Rights as a Person With HIV Infection or AIDS.”

And yet, it seems HIV/ AIDS discrimination continues to persist, even in 2016. Most recently, it’s been alleged in Arkansas, where the U.S. Equal Employment Opportunity Commission (EEOC) has launched legal action against the operators of a McDonald’s franchise in a city called Bentonville. There, they allege a worker was fired because of his HIV-positive status. 

A complaint against the franchise, Mathews Management Co. and Peach Orchard Inc., the worker was terminated from his position early last year after he conceded he had “an interest” in a co-worker, to whom he disclosed his HIV-positive status.

The worker was grilled by his shift manager about a week before the firing, and was warned it was probable he too would be fired because defendant companies had previously fired another worker, this one a female, for her HIV-positive status.

As an EEOC spokeswoman noted, those with HIV face many obstacles in their lives, but worrying about discrimination by their bosses shouldn’t be one.

The complaint alleges defendants not only violated the ADA by firing this particular worker, but also for mandating that workers report to their bosses their use of any prescription medication.

The Mathews company operates nearly three dozen McDonald’s fast-food restaurants. Peach Orchard is responsible solely for the restaurant located in Bentonville, according to the EEOC. The actual McDonald’s Corp. isn’t named as a defendant, likely for the fact that it was not the direct employer of the worker.

When pursuing a California HIV discrimination lawsuit against a franchise operation, it’s important to explore whether the parent company may have been liable, but it’s often a question of the level of control the parent company had over day-to-day decisions at the franchise.

That case is EEOC v Mathews Management et al, and is being pursued in a federal district court in Arkansas.

Also recently, a federal employment lawsuit filed by an openly gay man who is also HIV-positive was bolstered by a friend-of-the-court brief signed by 128 Democratic Congress members, including former presidential candidate Bernie Sanders, Nancy Pelosi, Al Franken and Cory Booker.

Plaintiff alleges his former employer, Omnicom Group, discriminated against him on the basis of gender. The question before the appellate court is whether Title VII of the Civil Rights Act protects both males and females whose sexual orientation is not heterosexual. The district court had ruled in favor of defendant, arguing plaintiff’s claim could not be brought under Title VII.

Congressional leaders say that to insinuate sexual orientation isn’t included in the “sex” element of Title VII is illogical.

Twenty-eight states in the U.S. do not provide protection against discrimination on the basis of sexual orientation. Thankfully, California isn’t one of them.

Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.

Additional Resources:

U.S. lawsuit: A McDonald’s worker was fired for being HIV-positive, July 5, 2016, By Jonathan Stempel, Reuters

More Blog Entries:

No-Beard Policy Sparks Religious Discrimination Lawsuit Against NYPD, July 15, 2016, Orange County Employment Discrimination Lawyer Blog

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