Chicago, IL —
Air Force veteran Michael Lamarre applied for a transportation security officer position with the Transportation Security Administration (TSA) in 2008. As part of the interview process for the position, Lamarre had to undergo a medical screening. It was during this screening that he disclosed his HIV status.
Despite receiving a letter from his physician that stated Lamarre "is capable of meeting the [TSO] job requirements safely, efficiently and effectively with respect to [her] medical specialty and this candidate's medical condition and/or diagnosis," the TSA notified Lamarre in 2009 his HIV status resulted in medical disqualification. Represented by the American Civil Liberties Union
, Lamarre fought the decision, claiming discrimination.
According to TSA's own hiring policies, the organization "provides equal employment opportunity to both current and former employees as well as applicants for employment." Furthermore, the administration's policy regarding HIV-positive hires directs hiring managers to merely consider whether the condition would prevent an employee from performing his or her required tasks. With the doctor's note, Lamarre should have been considered capable.
"We often find that you can have a national organization with perfectly sound policies at the top and perfectly professional HR personnel at the top, but sometimes when it gets down to the local place where the hiring is getting done, you end up with problems," says Ann Hilton Fisher, executive director of the AIDS Legal Council of Chicago.
In October, the TSA settled the dispute by agreeing to review its medical guidelines for applicants with compromised immune systems, a category that includes those with HIV.
"It's frustrating that people continue to face discrimination based on misguided ideas of what it means to live with HIV," Rose Saxe, senior staff attorney with the ACLU AIDS Project, stated in an ACLU release. "We are glad that the TSA will be reassessing its medical guidelines."
In September 2008, the Americans with Disabilities Act (ADA), a law that protects the rights of the disabled, was amended to explicitly cover HIV-positive individuals.
"The amendments to the ADA make it clear that HIV is a disability and that you can't discriminate based on the disability," Fisher says.
If an employee's HIV symptoms or medications are interfering with the job requirements, the ADA allows for the employee to request what is known as a reasonable accommodation. A reasonable accommodation is a reasonable change in the work environment or the way a job is performed that allows the disabled person to fill the position.
"A request for accommodation opens a discussion between the employer and the employee," Fisher says. "It's really individualized."
For example, according to Fisher, an HIV-positive employee who works at a large call center may be able to request a later shift due to morning stomach issues that are typical of HIV medications. However, a public school teacher would not be able to seek a similar request because of set school hours.
Employees who request a reasonable accommodation under the ADA should be prepared to disclose their HIV status. However, employees do not have to explicitly disclose their statuses if they are seeking unpaid time off under the Family and Medical Leave Act (FMLA). The FMLA provides many employees with up to 12 weeks of unpaid leave for medical reasons or to care for a family member with a serious health condition.
"With the FMLA, you just have to have a serious health condition, and you do not have to say exactly what it is or what is causing it," Fisher says.
Fisher suggests that employees and job applicants who feel discriminated against due to their HIV status seek out an employment lawyer who has ample experience with disability cases.Article by: By Keith Ecker for Lawyers.com
Keith Ecker co-authors the Lawyers.com blog. http://www.lawyers.com/our-blog
This article has been posted with the permission of Lawyers.com