HIV/AIDS is a worldwide public health issue with more than thirty million deaths reported across the globe. While more than 70% of people living with HIV/AIDS are located in Sub-Saharan Africa, developed economies such as the USA still interact and cater for a relatively large number of people living with HIV. Law and medical ethics are two disciplines that often overlap regarding the best course of action particularly for individuals living with chronic conditions such as HIV. While the law mandates the rule of conduct for each for which violation results to civil liability, ethics prescribes the expected behavior of a person. In healthcare, the two main ethical issues are related to confidentiality and consent. These ethical issues become particularly important in individuals with HIV.
Additionally, the mere fact that the aspect of confidentiality often collides with public interest makes legal and ethical issues associated with HIV particularly complicated. Whether it is related to marriage or employment, there are various legal and ethical issues related to HIV in the USA. The paper intends to draw attention to the constitutional rights of an HIV-infected individual and the moral obligations of medical professionals, employers and the society as a whole. The article focuses on issues of employment discrimination of persons living with HIV in the USA.
The Concept of Law and Ethics
The law and legal restrictions applied in medicine as a discipline and a social service are significant particularly as the general public in the USA becomes more conscious of the rights of an individual. While the concepts associated with law and ethics in the society often overlap, the two terms describe two distinct ideas. The law defines the established rule of conduct as mandated by the system of governance in the community either the federal or the state government. The violation of the law is termed criminality since it is essentially the violation of civil liability. Ethics, on the other hand, describes the identification of the most appropriate values. In short, ethics states “what ought to be” while the law insists on “what has to be.” Therefore, the two concepts share the same responsibility of establishing and maintaining social good (Kaur and Singh pg. 64).
The legal liability in medicine is confined in the violation of a specific prescribed rule, the criminality associated with the activity and the admissibility of compensation. For instance, a settlement on the grounds of medical malpractice is only done in the event there is evidence of loss and harm that quantifies a certain amount of compensation. However, in some cases the negligence does not result to damage and injury and as such does not warranty compensation but still qualify as unethical misconduct that can result in a penalty for the medical profession involved in the activity. In recent years, the aspect of medico-legal issues is gaining popularity not only in the USA but also across the globe since many patients are aware of their rights and are ready and willing to challenge the conventional medical wisdom where patients relied heavily on healthcare professions (Hlongwa pg. 3).
The basic of the current medical ethics are grounded at a time when interactions between the doctors and patients and employees and employers were one to one. However, in contemporary society, doctors and employers are involved in large-scale organizations and operations. Therefore, medical records and employment contracts are no longer properties of a single doctor or employer but rather the property of all doctors, employers, the government and other social service personnel such as social workers. While ethical principles do not change, their application in different situations as the society continues to advance is essentially a continuous process (Kaur and Singh pg. 65). It is important to mention that both ethics and law are dynamic and are in constant state of change depending on the current administration and court decisions that are made in response to the changes in the society, for instance, technological changes.
Employment and HIV Positivity
There is an increased level of discrimination of individuals living with HIV necessitating both legal and social response. There are numerous cases where individuals are denied jobs or discriminated in one way or the other at the workplace because of their HIV status. In the USA, statistics indicate more than one million people suffer and are victims of deliberate work-place discrimination based on their status (Lambada Legal ). It is important to acknowledge there is a necessity of protection of the dignity of HIV-infected persons in the efforts of preventing and controlling the epidemic that is HIV at both a national level in the USA and at a global scale. Employers are required to provide and sustain a working environment free of discrimination.
Each workstation must ensure that no harassment, intimidation or adverse action or personal distinction is made regarding the recruitment and employment based on HIV status. In the event the workstation is characterized by any form of discrimination, it is vital for the employer to provide education and supervision to the employees to reduce and mitigate any forms of discrimination. If an individual is in a situation or at a place of work where they feel discriminated, they should take necessary steps to stop the discrimination through documenting the discrimination, consulting with their supervisors and following the right channels to file for discrimination as provided by the company’s internal affairs. In the event the internal remedies do not work, it is obligatory for the individual to contact their state office for civil rights or anti human rights commission in the state or even file a case directly into a state court.
Liam Pierce is 47 years old and resides with his husband in Venice, Louisiana. Pierce was diagnosed with the virus in 2003 and had never had a problem with the diagnosis since he maximized the services and technology that assist HIV positive individuals such as undetectable viral loads. However, when he was promoted to the sheriff’s position, he was required to take a routine HIV screening test which revealed his status. Although he had already earned the spot and received a job offer, the offer was rescinded when the results of the test came in.
Pierce decided to fight the decision and contacted the national LGBTQ and HIV/AIDS legal rights organization Lambda Legal which proceeded to sue the sheriff’s office. In a press release announcing the suit, Lambda Legal stated it was unrealistic for the office to rescind the offer when it offered it because Pierce was experienced and well-suited for the job but took it back because he was living with HIV a disease that the plaintiff had for more than a decade (Murphy). The suit was filed in October 2017 to the US District Court for the Western District of Louisiana. The complaint argued that in the interview when he was inquired if he has any medical issues that will impair his ability to perform the job he replied no since his status did not affect his ability having lived with the condition for the most part in his career. Pierce made his claim under the Americans with Disabilities Act. Before suing in the federal state, Pierce made his complaint with the US Equal Employment Opportunity Commission (EEOC) which stated there was a probable cause in February 2016 (Murphy). While the case is still in court, Lambda Legal is confident that it will win based on the proceedings.
Lambda Legal also represented Bob Hickman in the lawsuit against a Sandwich shop in Las Vegas. In 2005, Hickman’s employment at a sandwich shop was terminated when he disclosed his HIV status in a health insurance application form. After filling the form, the plaintiff was fired the next day. His employer cited that he fired him because he believed that Hickman was a risk to the customers and subsequently the business through contaminating food (Lambada Legal ). However, a decade before the events of Hickman’s termination in 2005, researchers across the globe had established that there is no risk of HIV transmission through food handling. In the case of Hickman v. Donna Curry Investments, the plaintiff through Lambda Legal obtained a favorable judgement. The compensation encompassed monetary compensation for damages against the accuser, policy changes in Donna Curry Investments that describes the company’s admission that HIV transmission cannot occur through food handling in addition to a court-mandated training on the HIV for the supervisors of the company. Indeed the case of Bob Hickman is not the first complaint against various companies’ in the food industry who continue to terminate employment contracts with the argument that the argument that the HIV-infected individuals pose a risk to their consumers (Lambada Legal ). However, it is crucial for this facilitates to acknowledge the extensive research that illustrates HIV cannot be transmitted through food handling.
In another case, Saavendra Joey, an auto-glass installer was fired in 2002 when he was working as a glass installer in Georgia. In the termination notice, the company, Nodak Enterprises, informed him that they believe he posed a direct threat to his colleagues due to his HIV status (Lambda Legal). Saavedra disclosed his HIV status to the company’s regional manager upon his hiring. Three months into his employment, he received the letter of termination of employment contract after news of his status reached the top leadership of Nodak Enterprises. EEOC concluded that his firing violated the federal non-discrimination law and the plaintiff proceeded to file a federal lawsuit. In the case of Saavedra V. Nodak Enterprises, a sizeable auto-glass retailer in several southern states in the USA the company admitted to firing Saavedra on the grounds of his HIV status (Lambda Legal).
The plaintiff attorney argued that Saavedra was terminated out of fear and bigotry rather than science and as such against the law since he represented no real risk to either the organization, its employees or the clients. The lawsuit was based on America’s with disabilities act that prohibits the discrimination of individuals with disabilities including HIV infected people. Lambda Legal settled with Nodak Enterprises, which called the company to adopt a non-discrimination policy in addition to conducting the necessary training on issues related to HIV to support the company’s employees. Additionally, the company paid an undisclosed amount of money to the accuser Saavedra.
In efforts of supporting the department’s effort of Barrier-Free Health Care, the US Department of Justice (DOJ) reached three settlements by medical providers including Castlewood Treatment Center and Fayetteville Pain Center. Castlewood was requested to pay a compensation of $ 115,000 to plaintiff Gibson and $25, 000 in civil penalties for refusing to treat Gibson due to her HIV status (Knight). Additionally, the facility was mandated to train their employees on the ADA necessities and compliance for which it would be under investigation for more than four years. The settlements against Fayette Pain Center intended to resolve allegations that the facility violated ADA by refusing to treat an HIV positive woman. The plaintiff, who was suffering from back pains from an accident was denied services at Fayetteville Pain Center, North Carolina. The healthcare facility was requested to pay $10,000 to the complaint in addition to paying $5,000 to the civil penalties (Knight). Each of the settlements was achieved under the Americans with Disabilities Act (ADA) which guarantees equity of all people including those with disabilities such as HV in different areas such as accommodations, employment and state and government-provided services such as healthcare.
During the settlement, the Attorney’s general’s office stated that it is unrealistic and unfair to exclude an individual from care solely based on their HIV status. The discrimination on the delivery of healthcare based on HIV status correspond employment discrimination since hospital employees such as doctors are individuals that discriminate and refuse to provide medical attention. In each of the above settlements, the healthcare facilities were mandated to train their employees on ADA prohibitions in efforts of reducing the discriminations towards HIV positive individuals. Undeniably, the fact that the compensation was made, it is evident that the healthcare facilities were in violations with of ADA.
Despite extensive research on HIV over the past four decades, inaccurate myths about the virus continue to persist in all societies including a developed economy such as the USA. These myths together with an unfolded phobia towards HIV-infected individuals that continue to fuel workplace discrimination for people living with HIV. The employers cite different justifications for discriminating HIV positive individuals from the expenses associated with providing insurance, issues of missing working days due to medical requirements while others mention that fellow workers may feel uncomfortable working with them. However, the common denominator in all cases of discrimination of HIV positive individuals is the misunderstanding of the actual ways that HIV is transmitted and the aspects associated with living with HIV. Therefore, in efforts of managing HIV discrimination in employment, it is essential for governments not only in the USA but also across the globe to continue to invest in educating the public on the virus that is HIV. Additionally, there is a necessity of clearly distinguished laws and ethical guidelines that will limit and deter employment discrimination of HIV-infected persons.
Hlongwa, P. “Current Ethical Issues in HIV/AIDS Research and HIV/AIDS Care.” Oral Diseases (2016).
Kaur, Vineet and Gurmohan Singh. “Ethical and Legal Issues in AIDS.” Indian Journal of Sexual Transmitted Diseases 29.2 (2008): 63-67.
Knight, David W. “Justice Department Settles Three HIV Discrimination Cases .” 14 February 2013. HIV.gov. <https://www.hiv.gov/blog/justice-department-settles-three-hiv-discrimination-cases>.
Lambda Legal. “The State of HIV Stigma and Discrimination in 2007.” 2007. Lambda Legal. <https://www.lambdalegal.org/publications/2007-hiv-stigma-discrimination>.
Lambda Legal. “Highly Skilled Georgia Worker Unlawfully Fired Because He Has HIV–Lambda Legal Files Federal Lawsuit.” 20 May 2004. Lambda Legal. <https://www.lambdalegal.org/news/ga_20040520_highly-skilled-ga-worker-unlawfully-fired-hiv>.
Murphy, Tim. “Meet the Louisiana Man Standing up to HIV Employment Discrimination with the Help of Lambda Legal.” 14 December 2017. The Body: The complete HIV/AIDS Resource. <http://www.thebody.com/content/80688/meet-the-louisiana-man-standing-up-to-hiv-employme.html>.