A Case of Judicial Activism: AIDS in the Workplace

There are approximately 40,000 new people affected by HIV every year in the United States. In 1990, the U. S. Congress passed the Americans with Disabilities Act (ADA), providing legal protection for people with AIDS in the workplace. With this statute in place, workers may feel confident that they would not face discrimination on the job after undergoing an HIV test (Vershbow, 2004). After all, the poor health of an individual is a sensitive issue. If America were to begin discriminating against workers who have AIDS or other severe health problems, the economy of the nation would be affected adversely.

Thus, every company in the nation must be complying with the ADA. These requirements include the offering of reasonable accommodations to qualified workers with disabilities. What is more, it is a violation of the ADA to inform co-workers that an individual is suffering from HIV/AIDS, or any other illness or disability for that matter. Whoever violates this policy will be subject to disciplinary action, so therefore confidentiality must be protected at all costs (Workplace, 2007). It was in July of 1998 that the Supreme Court ruled in the Bragdon vs. Abbott case that HIV/AIDS is a disability.

All the same, this disability could turn into a danger for others only when employees are exposed to human blood or bodily fluids, e. g. in a butcher’s shop where a person with AIDS might cut his hand accidentally with a knife, thereby contaminating the meat about to be sold to a member of society. In such cases, every company must comply with the provisions of the OSHA Rule on Occupational Exposure to Bloodborne Pathogens (Workplace). So long as an employee’s poor health does not interfere with his or her ability to do the job safely and hygienically, there should be no discrimination in the workplace.

Moreover, the ADA restricts medical testing and inquiries before an individual has been employed by a company. Apart from prohibiting pre-employment medical inquiries, the ADA dictates that broad based medical inquiries after making conditional offers of employment will only be permitted to a company if such inquiries would include all people in a similar situation, that is, all the people who have been made conditional offers of employment to. Medical inquiry is also allowed when the employer must grant the employee’s request for a reasonable accommodation under the ADA.

Furthermore, medical inquiries are permitted when job-related concerns over safety and health call for them (as in the case of the butcher’s shop). Finally, once the company has made a medical inquiry into an employee’s health, it is the responsibility of the employer to guard the medical information about the employee at all costs. This information must be guarded in a separate file, and not mixed with the employee’s non-medical personnel file. The EEOC, which enforces the ADA with respect to private employers, explains that the company may only share this information with those decision makers who must have the information.

However, “It is not always appropriate for every person involved in the decision-making process to be informed about an [employee's] medical-related information" (Workplace). Decision makers who are allowed access to a person’s medical file include those who must plan for a disabled employee’s “reasonable accommodations. ”  Such decision makers may also include those who must decide whether a particular employee with HIV/AIDS should be fired because his or her work involves exposure to human blood or bodily fluids. For all other reasons, nobody should be allowed access to a person’s medical file.

As long as an employee is doing his or her job safely, hygienically, as well as effectively – his or her medical health is personal information that must be guarded, just as an employee’s Social Security number is not given to every other person in the organization. Several states of America, including California, Florida, Illinois, Massachusetts and Texas, are nowadays addressing the issue of mandatory versus voluntary HIV testing in the workplace. Even so, the ADA covers every state, and must be strictly followed. The EEOC agrees.

However, one federal court of appeals held that “an individual may not have a cause of action for damages simply because the employer violates the ADA's prohibitions against pre-employment medical testing and inquiries (without otherwise acting unlawfully based on that information). See Armstrong v. Turner Industries, Inc. (5th Cir. 1998). ”  Evidently, the ADA has been ignored by courts many a times (Workplace). Obviously, this is wrong practice on the part of the courts that have ignored the ADA’s and EEOC’s restrictions.

These restrictions are, after all, quite reasonable. OSHA’s mandate on health and safety is similarly reasonable. Only the fact that these laws have been violated by courts of law is disturbing as well as unreasonable. A statute passed by the United States Congress definitely deserves more respect by courts of law. It can be inferred that these violations are concerned with prejudices, or the negative perceptions of people concerning those suffering from AIDS. Nevertheless, it is important to educate the public about the treatment of HIV.

Antiretroviral drugs, for example, are known to significantly delay the progression of HIV to AIDS in order to allow people that are infected by the virus to live relatively normal and healthy lives (HIV, 2007). Most importantly, in order to save countless lives from the harm inflicted by violations of the law, it is necessary to educate those responsible for making decisions in courts of law, for it is clear that judges and juries too may be nurturing negative perceptions with respect to people with HIV/AIDS.

After all, AIDS is not like flu that can be spread through the air. There are ways in which the awful virus called HIV can spread. Most jobs do not have anything to do with the use of needles or sexual intercourse. Medical science informs us that it is safe also for HIV/AIDS patients to be working with children, so long as there is no exposure to human blood or bodily fluids on the job.