The Americans with Disabilities Act (ADA) of 1990 prohibits employers from discriminating against employees on the basis of “disability,” as defined by the statute, and requires them to provide “reasonable accommodations” to disabled employees and job applicants. 42 U.S.C. §§ 12102, 12112(b)(5)(A). The ADA’s definition of “disability” includes a wide range of conditions that “substantially limit one or more major life activities.” Id. at § 12102(1)(A). Courts have found that infection with the human immunodeficiency virus (HIV) may constitute a disability under the ADA. The Equal Employment Opportunity Commission (EEOC) recently published two guidance documents addressing the rights of HIV-positive employees and job applicants.
The U.S. Supreme Court first ruled that an HIV infection may constitute a disability under the ADA in 1998, although it did so without a clear majority of justices. Bragdon v. Abbott, 524 U.S. 624, 655 (1998); see also Fiscus v. Wal-Mart Stores, 385 F.3d 378, 383 (3rd Cir. 2004). In order to qualify for ADA protection, an individual must demonstrate a limitation on their “life activities” caused by their condition. The regulations implementing the ADA state that, by “substantially limit[ing] immune function,” an HIV infection can qualify as a substantial limitation. 29 C.F.R. § 1630.2(j)(3)(iii).
The New Jersey Law Against Discrimination (NJLAD) also protects employees and job applicants from disability discrimination, including discrimination based on an HIV infection. The definition of “disability” under the NJLAD expressly includes “AIDS or HIV infection.” N.J. Rev. Stat. 10:5-5(q). Unlike the ADA, the NJLAD’s definition of “disability” does not require evidence of substantial impairment of life activities. The NJLAD also requires employers to make reasonable accommodations for employees with disabilities, unless doing so would create an “undue hardship.” N.J.A.C. § 13:13-2.5(b).
In situations in which an HIV infection would directly impair a person’s ability to perform the basic functions of a job, both the ADA and the NJLAD make exceptions to the reasonable accommodation requirement, and they permit employers to make employment-related decisions based on an employee’s HIV infection. Employers must individually assess an employee’s circumstances to determine whether reasonable accommodations are possible, and whether an employee is capable of performing the job. An employer cannot “extrapolate from information provided by an employee based on stereotypes or fears,” such as “that anyone with bipolar disorder or HIV infection is substantially limited in a major life activity.” Taylor v. Pathmark Stores, 177 F.3d 180, 193 (3rd Cir. 1999).
The duties and responsibilities of specific jobs may, in some cases, justify disparate treatment. In a case that partly predates the ADA, the New Jersey Supreme Court found that a surgeon infected with HIV was protected by the NJLAD. It also found, however, that the hospital did not violate the NJLAD by suspending his surgical privileges unless he obtained informed consent from patients, holding that his duties as a surgeon posed a risk to patients. Behringer Est. v. Princeton Med. Ctr., 249 N.J. Super. 597, 606 (1991).
The EEOC’s guidance documents address HIV infection and workplace rights. One document addresses employee concerns, while the other is directed at health providers who may be asked to provide supporting documentation for an employee’s claim. The documents address the ADA’s provisions regarding privacy rights, reasonable accommodations, discrimination, and harassment.
If you need to speak to a disability discrimination attorney in New Jersey or New York, contact the Resnick Law Group today through our website, at 973-781-1204, or at 646-867-7997.
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