A nationwide manufacturer and distributor of fruit juice will pay
$125,000 to settle a lawsuit brought by the EEOC on behalf of an employee who was
terminated after the company learned he was HIV-positive. [EEOC v. Gregory Packaging, Inc. (N.D. Ga.] The fact that the employer specifically told
the man he was being terminated because of his HIV status highlights continuing
employer confusion over the Americans with Disabilities Act (“ADA”), even
twenty-five years after its passage, and especially as it relates to employees
with HIV/AIDS.
The plaintiff in the case was employed as a machine operator at the
Newnan, Georgia facility of Gregory Packaging, Inc., a company that sells juice
products to school districts and medical institutions. When the employee
developed a skin rash unrelated to his HIV, rumors began to circulate among
other employees that the employee’s rash was the result of AIDS. In an effort to quash the rumors, the
employee informed his supervisor that while he did have HIV, the skin condition
was unrelated, and there was no danger of him transmitting HIV to food products
or co-workers. Despite his good job
performance, and no evidence of a health risk, the employee was terminated
approximately a month later. He was
informed the reason he was being fired was because he had HIV.
The employee declined a separation agreement offered by the company,
which included a release of claims. The Equal Employment Opportunity Commission
(“EEOC”) subsequently brought a lawsuit on the employee’s behalf, alleging violations
of the ADA and similar claims brought under Georgia state law. Despite the company’s early efforts to fight
the lawsuit, the case was settled pursuant to a court-approved consent order,
which provided for the $125,000 payment by the New Jersey based company, and
required equal employment opportunity training and reporting to the EEOC.
What is most surprising about this case, is that even before the ADA’s
expansion under the Americans with Disabilities Amendment Act (“ADAAA”), it was
generally established that a person with HIV/AIDS met the Act’s definition of
an individual with a disability.
Furthermore, as noted in EEOC guidelines, even those who are regarded as
having HIV/AIDS are protected under the Act, even if they do not have the
disease. The example given by the EEOC
is a person being fired on the basis of a rumor that he had AIDS, even though
he was not infected.
Employers involved in the food and restaurant industry are often at the
focus of these types of lawsuits. As was the case at Gregory’s Georgia facility,
the situation is often fueled and exacerbated by rumors spread by co-workers or customers,
and fears of HIV/AIDS being transmitted through an employee’s contact with food
products.
According to the
Department of Health and Human Services, HIV/AIDS is not a disease that
can be transmitted through food handling. Diseases that can be
transmitted by an infected person handling food include (1) noroviruses, (2) the
Hepatitis A virus, (3) Salmonella, (4) Shigella, (5) Staphylococcus, and
Streptococcus. For more detailed
information, employers in the food service/restaurant industry can find
guidance through the EEOC publication “How to Comply with the Americans withDisabilities Act: A Guide for Restaurants and Other Food Service Employers.”
Employer’s also need to be aware that in the context of HIV/AIDS, the
ADA also protects employees who do not have the disease, but have an
association or relationship with someone who does. In the EEOC guidelines, examples of
employment discrimination against persons with HIV or AIDS include:
•
An
automobile manufacturing company that had a blanket policy of refusing to hire
anyone with HIV or AIDS.
•
An
airline that extended an offer to a job applicant and then rescinded the offer
after the employer discovered (during the post-offer physical) that the
applicant had HIV.
•
A
restaurant that fired a waitress after learning that the waitress had HIV.
•
A
university that fired a physical education instructor after learning that the
instructor’s boyfriend had AIDS.
•
A County
tax assessment office that cancelled training opportunities for an accountant
following her disclosure that she had HIV.
•
A retail
store that generally rotated all sales associates between the sales floor
(where they could earn commissions) and the stock room (where they processed
merchandise) except for the sales associate who was rumored to have HIV, who
was never rotated to the floor.
•
A call
center employee who was denied a promotion to shift manager because his
employer believed the employee would be unreliable since he had AIDS.
•
A
company that contracted with an insurance company that had a cap on health
insurance benefits provided to employees for HIV-related complications, but not
on other health insurance benefits.
While the ADA does include a “direct threat” defense in regard to employees
who pose a significant risk of substantial harm to the health and safety of
the employee or others, the defense requires medical or other
objective evidence, as opposed to subjective beliefs or assumptions based on
stereotypes. However, the take-away from
this case is that proper training of supervisors in addressing ADA issues is a
much better and less expensive option than having to establish defenses after a
suit has been filed.
Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in
Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To
view his firm bio,
click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com
