Discrimination | HIV/AIDS | Vermont

Yes. Vermont has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing, and public accommodations.

• People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
• People who have a record of or who are regarded or perceived as having HIV.
• Under federal law, but not Vermont law, a person who does not have HIV, but who “associates” with a person with HIV—such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of a person with HIV.

There are two general sources of law that protect people with HIV and AIDS from discrimination in employment.  First, Vermont has a specific law prohibiting an employer from discriminating on the basis of a person’s HIV-positive test result (Vt. Stat. Ann. tit. 21, § 495 (a) (6)-(7)). This law also prohibits any employer from requiring an HIV test as a condition of employment.

More generally, people with HIV are protected under the federal Americans with Disabilities Act (ADA) and the Vermont Fair Employment Practices law, both of which prohibit discrimination on the basis of a person’s disability.  For purposes of these laws, the word “disability” refers to a wide range of health conditions.  The ADA covers employers with 15 or more employees.  The Vermont law covers employers with one or more persons performing services in the state (Vt. Stat. Ann. tit. 21, § 495d (1)).

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on the fact that a person is HIV-positive or has AIDS.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.
The following are examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

Under the ADA, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability.  Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?
• Have you ever been on workers’ compensation or received disability benefits?
• What medications do you take?

After a conditional offer of employment, an employer may require a physical examination or medical history.  The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation.  The same medical inquiries must be made of each person in the same job category.  In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections.

After employment has begun, an employer may only require a physical examination if it is job-related and consistent with business necessity.

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero.  Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is
not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• The probability of the risk; and
• Whether the risk can be eliminated by reasonable accommodation.

However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation … Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …” (Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (4^th Circ. 1995)).

It is important to note that only a small number of courts have addressed the rights of HIV-­positive health care workers.  The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA.   Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.

2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:

• The employer knew or figured out that you are HIV-positive or have AIDS;
• You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
• Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by
  the employer for the adverse action is false.

3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?

4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:

• Have other employees in similar situations been treated differently or the same?
• Has your employer followed its personnel policies?
• Did the adverse treatment begin shortly after the employer learned of your HIV status?
• Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
• What will your employer’s version of events be? How will you prove that the employer’s version is false?

5. Do you have any difficulty fulfilling the duties of your job because of any HIV-­related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to try brainstorming to create a reasonable accommodation that you can propose to your
Here are some points to consider:

• How does the company operate and how would the accommodation work in practice?
• Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

It is illegal under both Vermont law (Vt. Stat. Ann. tit. 9, § 4503), and the National Fair Housing Amendments of 1989, to discriminate in the sale or rental of housing on the basis of HIV status.

A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

An exception exists under Vermont law for rentals in buildings that consist of three or fewer units, where the owner or a member of the owner’s immediate family resides in one of the units (Vt. Stat. Ann. tit. 9, § 4504). In addition, the Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit occupancy to members.

Yes.  Under Vermont law (Vt. Stat. Ann. tit. 9, § 4502) and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes, and other modes of transportation, health clubs, hospitals, and medical and dental offices, as long as these facilities are generally open to the public.

Yes. In addition to the general prohibition against discrimination in places of public accommodation, Vermont has a specific law that prohibits a school district or educational institution from discriminating against any applicant or student based on HIV status (Vt. Stat. Ann. tit. 18, § 1127). In addition, school districts and educational institutions may not request or require that an applicant or student take an HIV test.  A student or applicant who is harmed by a violation of this statute may bring a lawsuit in Superior Court for injunctive relief and damages.

Yes. Vermont also has a specific law prohibiting discrimination by health care providers or facilities against people with HIV.  In addition, health care providers and facilities may not require an HIV test as a “condition for receiving unrelated treatment or service” (Vt. Stat. Ann. tit. 18, § 1128). An individual may bring a lawsuit in Superior Court for injunctive relief and damages based on violations of this statute.

Believe it or not, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Vermont law.

1. “Treating People with HIV is Dangerous”

Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needle sticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission (524 U.S. 624 (1998)).

In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.

2. “Treating People with HIV Requires Special Expertise”

In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.

In United States v. Morvant, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care (898 F. Supp. 1157 (E.D. La 1995)). The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

Under Title III of the ADA (42 U.S.C. §§12181-12188), it is illegal for a health care provider to:

1. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
2. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
4. Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be
  made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions that tend to stigmatize a patient simply on the basis of HIV status.
• A health care provider cannot limit the scheduled times for treating HIV-­positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

To pursue a claim under the Americans with Disabilities Act for employment discrimination, the employer must have at least 15 employees.  A person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease).  Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice.  However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding.

To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.