It is against the law for an employer to discriminate against you because of your HIV status. Employers may also be required to provide a reasonable accommodation to you if you have medical conditions related to HIV status. If you are discriminated against or harassed based on HIV status, you can file a lawsuit against your employer for damages.
Below, our California labor and employment law attorneys discuss the following frequently asked questions about lawsuits for discrimination against California workers based on HIV status:
- 1. Can an employer in California refuse to hire someone with HIV/AIDS?
- 2. What laws protect employees with HIV or AIDS?
- 3. What should I do if co-workers or supervisors make comments about my HIV status?
- 4. Can I ask for special treatment at work because of a medical condition related to HIV/AIDS?
- 5. Should I file a complaint with the EEOC based on HIV discrimination?
- 6. Can I sue my employer for discrimination based on HIV status in California?
- 7. Can I be fired for filing a discrimination complaint or harassment lawsuit?
- Additional reading
In order to exclude an employee, the employer must establish through objective and medically supported methods that there is a significant risk of substantial harm.
1. Can an employer in California refuse to hire me if I have HIV/AIDS?
In California, it is against the law for an employer to refuse to hire you because of your HIV status. Employment discrimination based on HIV or AIDS status is a violation of California state and federal law.
HIV/AIDS may be considered a medical condition or physical disability. Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate against you based on a medical condition or physical disability.12
The Americans with Disabilities Act (ADA) also protects you from employment discrimination based on a medical condition or physical disability.3
Under the ADA and California law, if you have a medical condition, you are protected against discrimination in the workplace. It is a violation for an employer to treat you less favorably because you have a history of HIV, or are believed to have a limiting medical condition related to HIV/AIDS.
Employment discrimination laws protect you from discrimination based on medical conditions or physical disabilities if you are a qualified individual. You are a “qualified individual” if you can perform the essential functions of the job, with or without a reasonable accommodation.4
Anti-discrimination laws based on HIV or AIDS status also apply to:
- Employee unions
- Labor organizations
- Apprenticeship training programs
- Employment agencies unions.567
When can an employer refuse to hire me if I have HIV/AIDS?
There are very limited situations when an employer can exclude you due to a disability or medical reason. Under the ADA, qualification standards may include a requirement that you shall not pose a “direct threat” to the health or safety of other individuals in the workplace.8
However, an employer cannot simply use your HIV status as a generalized threat to the health and safety of others. The medical condition involved must pose a direct threat that cannot be eliminated by reasonable accommodation.9
In order to exclude you, the employer must establish through objective and medically supported methods that there is a significant risk of substantial harm. This must be based on an individualized assessment of your present ability to safely perform the essential functions of the job.10
Direct threat test
In determining whether the medical condition poses a direct threat, the employer must consider the following factors:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.”11
In most cases, if you have HIV or AIDS, you should pose no direct threat to other individuals in the workplace.
HIV/AIDS is usually not a direct threat
According to the Department of Health and Human Services (HHS), HIV/AIDS does not pose a food safety threat because it is not a condition that is transmitted through food handling.12
According to the Centers for Disease Control (CDC), HIV-positive healthcare workers who follow standard precautions, with the exception of limited specifically-defined exposure-prone invasive procedures, do not pose a direct to others based on HIV infection.13
An employer cannot make a “safety concern” exception based on generalizations or unfounded fears about HIV and AIDS. Unfortunately, some employers hold onto outdated prejudices.
2. What laws protect employees with HIV or AIDS?
If you have HIV or AIDS, you are protected against employment discrimination by a number of state and federal laws. This includes:
- California Fair Employment and Housing Act (FEHA)
- Americans with Disabilities Act (ADA)
- Family and Medical Leave Act (FMLA)
Under the FEHA, a “physical disability” includes disfigurements or diseases that affect your body and limit major life activities. This includes conditions related to HIV and AIDS.14
3. What should I do if co-workers or supervisors make comments about my HIV status?
You have the right not to tell other coworkers or supervisors about your HIV status. In most cases, you have the right not to tell your employer about your HIV status. When an employer has information about a medical condition, such as HIV status, this information should be kept private and not disclosed to other employees.
An employer must keep all medical records and employee medical information confidential and in separate medical files. If an employer has disclosed your HIV status to co-workers without your consent or without your voluntary disclosure, your employer may have violated the law.
Workplace harassment
If co-workers or supervisors are making comments about your HIV status, it may be a form of workplace harassment. When an employer learns about possible workplace harassment, the employer should take immediate action to protect the affected employee pending an investigation. This includes informing all parties of the results of the harassment investigation and taking corrective action.
Generally, your employer is not liable for the improper actions of other employees. However, if the employer fails to address problems of severe or pervasive harassment, you may have a claim against an employer for a hostile work environment.
The legal definition of hostile work environment harassment under the California Fair Employment and Housing Act is:
- Discriminatory intimidation, ridicule, or insult,
- That is either severe or pervasive enough to alter the conditions of employment and create an abusive working environment for the person being harassed.15
In general, a few comments made by other employees, teasing, or asking uninformed questions may not be considered severe or pervasive enough to rise to the level of workplace harassment. Isolated and minor incidents will generally not meet the California legal definition of harassment.16
Related forms of harassment
Employees who suffer harassment related to HIV status may also face harassment related to other forms of illegal workplace discrimination. This may include harassment related to sex, sexual orientation, gender identity, or gender expression.
4. Can I ask for special treatment at work because of a medical condition related to HIV/AIDS?
The ADA and other employment anti-discrimination laws protect you from discrimination based on HIV status if you are a “qualified individual.” You are a “qualified individual” if you can perform the essential functions of the job, with or without a reasonable accommodation.17
Employers must provide “reasonable accommodations” if you are unable to perform the essential functions of the job based on HIV status.18
If you require a reasonable accommodation because of a disability or medical condition, you may ask an employer to make an adjustment or change so you can perform the essential functions of the job. Employers must then engage in a timely, good-faith interactive process with you to determine whether a reasonable accommodation would allow you to complete the necessary functions to perform the job.19
Reasonable accommodation examples
A reasonable accommodation is any measure that would allow you to perform the essential job functions. This could include:
- Restructuring the job
- Modifying work schedules
- Part-time scheduling
- Reassignment to a vacant position
- Adjustments to training materials
- Allowing for breaks to take medication
- Modifying equipment
- Modifying work policies2021
Undue hardship test
An employer must provide reasonable accommodations to you if you have a physical disability or medical condition unless it would be an “undue hardship.” Undue hardship means the accommodation would require significant difficulty or expense.22
Whether the employer would suffer an “undue hardship” is based on a number of factors, including:
- The nature and cost of the accommodation needed.
- The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
- The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
- The type of operations, including the composition, structure, and functions of the workforce of the entity.
- The geographic separateness or administrative or fiscal relationship of the facility or facilities.23
5. Should I file a complaint with the EEOC based on HIV discrimination?
Discrimination violations based on HIV status in California can be filed with the Equal Employment Opportunity Commission (EEOC) or the California Civil Rights Department (CRD). The EEOC is the federal agency, and the CRD is the state agency that handles complaints of HIV discrimination.
In most cases, California law offers broader protections for HIV-discrimination cases than federal law. For example, California’s discrimination laws apply to employers with at least 5 employees. However, the ADA may only apply to employers with at least 15 employees. For this reason, some people in California prefer to file a discrimination complaint with the CRD rather than the EEOC.
When to file
If you want to file a lawsuit against your employer for discrimination based on HIV status in California, you are usually required to exhaust all administrative remedies first. This may mean you have to go through the CRD complaint process before you can file a lawsuit.24
If you have an attorney, your lawyer can file a complaint with the CRD and obtain an immediate right to sue notice without waiting for the administrative process first.
You can file a complaint directly with the CRD within three years of the last incident of discrimination, harassment, or retaliation. The complaint can be filed online, by phone, or using the form from the CRD website.25
An investigator will contact you within 60 days and talk about the details of the complaint. If the CRD does not pursue your claim, you have the immediate right to file a lawsuit against the employer.
6. Can I sue my employer for discrimination based on HIV status in California?
Under California law, it is a civil right to have the opportunity to seek and hold employment without discrimination based on HIV status. If you are discriminated against, you can bring a lawsuit against your employer for unlawful discrimination.26
You can request an immediate right to sue notice without having to go through a CRD or EEOC investigation. However, if you receive a Right-to-Sue notice, your complaint will not be investigated by CRD.27
According to the CRD, proceeding directly to court without an investigation by the CRD is only advisable if you have an attorney. Your attorney can obtain a right to sue notice and file your case in California Superior Court, in the county where the discrimination occurred, or another relevant county .28
7. Can I be fired for filing a discrimination complaint or harassment lawsuit?
In California, you cannot be retaliated against for filing a discrimination complaint or reporting workplace discrimination against a co-worker or other employee.29
The FEHA protects you if you are retaliated against for:
- Opposing workplace harassment
- Opposing HIV-status discrimination against other employees
- Reporting discrimination or workplace harassment based on HIV status
- Assisting with CRD investigations or government inquiries
If an employer retaliates against you for reporting FEHA violations or other employment law violations, you may be able to file a complaint with the CRD or file a lawsuit against the employer for retaliation or wrongful termination.30
Additional reading
For more in-depth information, refer to these scholarly articles:
- Employer attitudes towards general health checks and HIV testing in the workplace – Public Health.
- HIV and employment – Occupational Medicine.
- Protections against HIV-Based Employment Discrimination in the United States and Australia – Hastings International and Comparative Law Journal.
- Perceived barriers to employment among persons living with HIV/AIDS – AIDS Care.
- Workplace discrimination and HIV/AIDS: The national EEOC ADA research project – Work.
Legal References:
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”)
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.”)
- Americans With Disabilities Act of 1990. Public Law 101-336. 108th Congress, 2nd session (July 26, 1990).Title VII, 42 U.S.C. § 2000e-2, Section 102 — Discrimination. (“(a) General rule – No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”)
- Americans With Disabilities Act of 1990, Section 101 — Definitions. (“(8) Qualified individual. – The term “qualified individual” means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”)
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organization’s staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.”)
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.”)
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.”)
- 42 U.S. Code Section 12113 – Defenses (“(a) In general – It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter. (b) Qualification standards – The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.”)
- 42 U.S. Code Section 12111 – Definitions (“(3) Direct Threat – The term “direct threat” means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”)
- 29 C.F.R. Section 1630.2 (“(r) “Direct Threat” means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.”)
- Same.
- Equal Employment Opportunity Commission: How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers
- Centers for Disease Control: Recommendations for Preventing Transmission of HIV and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures
- Fair Employment and Housing Act 12926 — Definitions. (“(m) “Physical disability” includes, but is not limited to, all of the following: (1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. (B) Limits a major life activity. For purposes of this section: (i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. (ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult. (iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working. (2) Any other health impairment not described in paragraph (1) that requires special education or related services. (3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult. (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2). (6) “Physical disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.”)
- Serri v. Santa Clara University (2014), 226 Cal.App.4th 830, 869.
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1042. (“Thus, “ ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes’ ” in employment conditions and thus will not amount to non-sexual harassment.”)
- Americans With Disabilities Act of 1990, Section 101(8), see footnote 4 above.
- Fair Employment and Housing Act 12940 (m), see footnote 2 above.
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”)
- Fair Employment and Housing Act 12926 — Definitions. (“(p) “Reasonable accommodation” may include either of the following: (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”)
- Americans With Disabilities Act of 1990, Section 101 — Definitions. (9) Reasonable accommodation. – The term “reasonable accommodation” may include – (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”)
- Americans With Disabilities Act of 1990, Section 101 — Definitions. (10) Undue hardship. (A) In general. The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B). (B) Factors to be considered. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include (i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.”)
- Fair Employment and Housing Act 12926 — Definitions. (“(u) “Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) The nature and cost of the accommodation needed. (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.”)
- Fair Employment and Housing Act 12960. (“(b) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or his or her authorized representative may in like manner, on his or her own motion, make, sign, and file a complaint.”)
- Fair Employment and Housing Act 12960; California Assembly Bill 9 (2019).
- Fair Employment and Housing Act 12921. (“(a) The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status is hereby recognized as and declared to be a civil right.”)
- Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”)
- Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) … The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions FEHA wrongful termination / retaliation. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”)
- California Code of Regulations (CCR) tit. 2, § 11021. (“a) FEHA Retaliation Generally. It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment that the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Council or Department or its staff. (1) Opposition to practices prohibited by the Act includes, but is not limited to: (A) Seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (B) Assisting or advising any person in seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (C) Opposing employment practices that an individual reasonably believes to exist and believes to be a violation of the Act; (D) Participating in an activity that is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act.”)