In September 2015, the U.S. Equal Employment Opportunity Commission sued a Subway franchise in Indiana after an employee was allegedly fired for being HIV positive. When the employee, who remained anonymous in the suit, told supervisors about his status, his manager expressed concern that he would infect customers. "What if you cut yourself?" the manager reportedly said. "What if our customers find out?"
After consulting the restaurant's district manager about the issue, the manager abruptly terminated the HIV-positive employee, telling him he could pose a liability for Subway. The franchisee ended up settling the case.
"Despite all the advances we've made, there's still plenty of ignorance and fear to go around."
— Bill Hirsh
Advocates have made enormous progress in the past few decades when it comes to fighting workplace discrimination against people with HIV/AIDS, but unfortunately, incidents like this still happen with regularity. Since the height of the AIDS crisis in the mid-1980s, reports of workplace bias had fallen consistently. But after decades of steady decline, the number of cases jumped to 220 in 2016, up from 117 in 2015 — an increase of 88%. In the last several years, there have been reports of HIV-related firings across the country, including in Michigan, Arkansas, New York, Virginia and California.
"Despite all the advances we've made, there's still plenty of ignorance and fear to go around," said Bill Hirsh, executive director of the AIDS Legal Referral Panel, which provides legal services to people with HIV in the San Francisco Bay Area. "These issues are very real, very alive and play out in people's lives every day."
HIV/AIDS advocates say the problem is likely to get worse under the administration of President Donald Trump. The webpage for the Office of National AIDS Policy, which spearheaded former President Barack Obama's goals of lowering national rates of HIV infection, was removed following the inauguration and remains blank. Some reports indicate the administration has done away with the agency altogether: The director of the office under Obama, Amy Lansky, bid farewell on behalf of her staff on Twitter at the beginning of January. Many federal positions focused on HIV are political appointments and roll over between presidencies, but it is not clear if Trump intends to restaff the office. The White House did not respond to requests for comment about its plans to combat HIV.
Trump has also vowed to cut government spending by $10 trillion over the next 10 years, drastically reducing the federal workforce. As part of this effort, Trump has instituted a hiring freeze on all federal employees, which has led activists fighting HIV/AIDS to wonder whether departments dedicated to HIV/AIDS — in particular the Equal Employment Opportunity Commission, which handles reports of workplace discrimination — will be adequately funded and staffed during the new administration. The EEOC declined to comment for this story.
"What we're seeing is already that the Trump administration is changing across the board, not just how it staffs or doesn't staff federal agencies and departments, but what it thinks the role of federal government is in the public and private sphere," said Jason Cianciotto, policy director for Harlem United, a New York-based HIV advocacy group.
It's illegal to fire someone because of their HIV status, but the regulation means little unless the government steps in to protect those with the virus from discrimination.
The Americans With Disabilities Act of 1990 prohibits discrimination against people with disabilities in all areas of public accommodation, including housing, transportation and employment. The ADA's protections, which were later strengthened to further cover those with HIV, apply to any workplace with more than 15 people.
Generally, bringing a charge of HIV-based discrimination against an employer involves victims filing a report with the EEOC, which investigates and can choose to pursue a lawsuit on their behalf.
Scott Ammarell, CEO of the LGBTQ advocacy group Chicago House, said he fears that under the Trump administration, the EEOC may issue people living with HIV greater numbers of what are known as "right to sue" letters. While these notices acknowledge that the complainant has reasonable grounds for a discrimination lawsuit, a worker who receives a right to sue letter is responsible for taking legal action themselves.
"It means that the EEOC doesn't have to devote its time and resources to those complaints," Ammarell said. "That's going to require pro bono lawyers, legal aid attorneys or other counsel who work on a contingency to file these cases."
That would have a disproportionate impact on low-income people with HIV. Agencies like the EEOC allow people who otherwise wouldn't have the means to pursue cases of discrimination in court to seek redress for conduct that violates federal laws. Scott Schoettes, who directs the HIV Project at Lambda Legal, said the process can be both time intensive and grueling, and proving bias can be difficult, making HIV suits "hard to win." Many attorneys are unwilling to take these cases on.
"The employee would have to be able to point to something that would support the fact that the basis of the employer's actions were not based on the reasons they asserted but because of this other illegal reason," Hirsh said. "It's a tough job."
In January, Trump appointed Victoria Lipnic, who was initially nominated by Obama, to lead the EEOC. But Lipnic's ability to protect HIV-positive people from discrimination may be hampered by other Trump administration initiatives: Trump has announced his support for the First Amendment Defense Act, a "religious freedom" bill in the Republican-controlled House of Representatives that would allow employers to discriminate against groups of people on the basis of religious belief.
Cianciotto said the proposed law could be used to turn away HIV-positive customers or, in the case of hospitals and doctors, patients. "The First Amendment Defense Act [would allow] anyone to discriminate based on their religion," he said. "There's no limitation."
Although HIV affects all populations, it still bears the stigma of its early association with the sex lives of gay men.
"HIV-related stigma is unique in that it overlaps with the stigmas associated with the populations in which it first manifested," said Jeremiah Johnson of Treatment Action Group, a research center and think tank targeting HIV, tuberculosis and hepatitis C. "It has never been completely separate from the homophobia and transphobia."
Although Trump has been virtually silent on the subject of HIV and AIDS, his vice president has not. While running for Congress in 2000, Vice President Mike Pence advocated for diverting resources from the Ryan White Care Act, a federal program that provides resources to low-income people living with HIV, to LGBTQ conversion therapy. As governor of Indiana, Pence also pushed a "religious freedom" bill similar to the executive order rumored to still be under consideration by the federal government.
"Policy decisions driven by such dangerous beliefs will always lead to active discrimination," Cianciotto said. "It's even more dangerous than apathy. Political leaders like Pence are driven by religious fundamentalism, not a commitment to human rights. Why would someone [with his record] take active steps to protect people living with HIV from workplace or housing discrimination, even if such discrimination is against federal law? Laws are ineffective if those in power don't enforce them."
While federal law has been in place for decades, advocates have warned that employers can find ways to get around protections for people with HIV.
"You can't get fired for having HIV, but you can get fired for being late to work," said Hadeis Safi, a health educator at Chicago's Center on Halsted. "If I want to get rid of you, I can pay really close attention to whether you're on time or not. If you're late three times, well, there you go. I'm not firing you because you have HIV. I'm firing you 'because you were late.'"
Safi often advises clients with HIV to not disclose their status to their employers, just to be safe. Schoettes added there are exceptions to the disability and discrimination laws that put people with HIV at additional risk.
"There really isn't a job in the United States that a person living with HIV can't perform safely."
— Scott Schoettes
In order to let someone go for having HIV, for example, an employer would have to prove that the HIV-positive individual poses "a threat to the health or safety of members of the public" or to themselves. Many of those who report being let go because of their HIV status are food service or airline employees — two jobs where workers could interact with sharp objects or be required to make physical contact with others in an emergency situation.
Schoettes said that despite fear about potential infections, people with HIV don't pose a notable risk to employers or other people on the job. "We've known for a long time that there's no risk or any significant risk presented by a food worker living with HIV," Schoettes said. "There really isn't a job in the United States that a person living with HIV can't perform safely."
Current scientific understanding of HIV supports that claim. A study published in the Journal of the American Medical Association in July found zero transmissions of HIV in the 58,000 cases of unprotected sexual activity among serodiscordant couples — meaning that one partner has HIV and the other does not. If an HIV-positive individual is taking their daily medication, they pose an extremely low risk of transmitting the virus to anyone.
But even despite these findings, there remains a great deal of stigma around HIV, the product of a culture of fear and lack of education around the disease.
A 2006 poll from the Kaiser Family Foundation found that one-third of respondents thought you could get HIV from kissing, while 22% and 16% were under the impression that the disease could be contracted from sharing the same drinking glass with an HIV-positive person or using the same toilet seat, respectively. All of those things are untrue, but those false notions can lead to everyday discrimination against people living with HIV — from getting a job to going on a date.
In the face of these challenges, Safi hopes that society can learn to see people HIV-positive people as no different than anyone else.
"It's about education and destigmatization," said Safi, whose virus levels have fallen to an undetectable rate since 2013. "There's nothing wrong, dirty or bad about the fact that I'm positive. I just happen to have a chronic condition, and it's something that needs to be acknowledged and discussed."