A Pittsburgh-based national health-care company last month agreed to settle a suit with a nursing assistant it refused to hire because of the man’s HIV-positive status — which could set an important precedent for HIV discrimination in occupational-licensing requirements.
Capital Healthcare Solutions will pay the plaintiff, identified in court papers as D.B., $20,000 in punitive and compensatory damages, as well as $2,000 for back pay.
The plaintiff was represented by AIDS Law Project of Pennsylvania and the U.S. Equal Employment Opportunity Commission.
The man, a Central Pennsylvania resident, contended that the company offered him a position as a nursing assistant in September 2010 but, weeks later, rescinded that offer after learning he was HIV-positive.
The man’s status came to light during a pre-employment health screening that asked in part whether the applicant had any “communicable” diseases. D.B.’s doctor listed HIV, but noted that the disease would not prevent him from fulfilling his job responsibilities.
D.B. filed suit in September 2011.
The company, which has not admitted to any wrongdoing, also agreed that it would not discriminate based on real or perceived disability, would provide employee training and develop internal policies to prevent future instances of discrimination.
The suit focused on the federal Americans with Disabilities Act, which includes HIV/AIDS as a protected disability.
“The ADA and other antidiscrimination laws make it clear that you need to assess each person based on his or her own ability or limitations,” said AIDS Law Project executive director Ronda Goldfein. “You can’t simply say, ‘This person has diabetes, so therefore all people with diabetes are limited in this way.’ The goal is individual assessment.”
However, the case also incorporated issues surrounding discrimination in occupational-licensing requirements.
Goldfein explained that many occupational licenses use language predating the ADA that prevents applicants from attaining a license if they have “contagious, communicable or infectious diseases.”
“They’re often used interchangeably and there’s very little clarification as to what those terms mean,” Goldfein said. “So we’ve seen that prospective employers, school owners — anyone concerned with jobs for which licenses are required — are confused about whether these terms exclude a person with HIV. It’s hard to say a person with HIV doesn’t have an infectious disease but yet we know that transmission doesn’t occur in a casual setting. It has to be under the right conditions.”
Goldfein said AIDS Law Project found that about 50 occupations in Pennsylvania require a license for which a clause about communicable diseases is utilized.
A few years ago, one of the agency’s clients was denied entry into a cosmetology school because the institution didn’t believe the man would be eligible for an occupational license on account of his HIV status. AIDS Law Project secured a clarification from the State Board of Cosmetology that HIV would not preclude an applicant from attaining a license.
During the settlement process between D.B. and Capital Healthcare Solutions, AIDS Law Project sought further state support that HIV should not be considered an impediment to attaining an occupational license.
With the backing of then-Gov. Ed Rendell, the Bureau of Professional and Occupational Affairs released a statement that “diseases, such as HIV, that are not transmitted through casual contact or through the usual practice of the profession or occupation for which a license is required” should not prevent an applicant from being considered for a license.
“We now have strong federal law and a clarification on our state law, but there are still people being jammed up by this,” Goldfein said. “So we’re hoping this settlement can be yet another piece of information to keep other agencies that deal with occupational licensing from misapplying it to people with HIV.”
Jen Colletta can be reached at [email protected].
