The 31-year-old believed he was well-liked at the Kansas chain restaurant where he’d worked as a server for a year, but still worried his co-workers would stigmatise him if they learned of his condition. In a lawsuit filed last week in US District Court in Kansas, Mr Gutierrez claims his fears were well founded, because shortly after sharing his status with a manager, he says he was fired.
Mr Gutierrez first told his manager at the Big Biscuit in Overland Park, Kansas, that he had cancer rather than HIV, the lawsuit says. But to qualify for a state program to get medications for HIV, he needed his manager to verify he didn’t receive health insurance through his work. Forced to come forward about his status, he brought his manager forms to sign.
Mr Gutierrez then learned he had suddenly been transferred to another location and would be forced to work on Sundays – a day that he had said he could not work due to family obligations. When he appeared for work at the new location, he protested the schedule change and said he couldn’t make an accommodation, according to his lawyer, Mark Dugan.
As a result, Mr Gutierrez claims, he was fired.
The Big Biscuit did not immediately respond to The Washington Post’s requests for comment.
Mr Gutierrez’s lawsuit alleges that the Big Biscuit violated the Americans with Disabilities Act by firing him over his HIV status. He seeks financial compensation, which he argues he’s entitled to through the ADA, including back pay, front pay, compensatory damages, punitive damages and attorneys’ fees.
“It had a pretty huge emotional impact,” Mr Dugan said, of his client’s firing. “First he was upset by the diagnosis, he was upset at work. The fact that he was unable to continue in his job just further undermined his stability.”
Individuals with HIV or AIDS are protected by federal anti-discrimination laws thanks to a 1998 Supreme Court ruling. ADA.gov states that “persons with HIV disease, either symptomatic or asymptomatic, have physical impairments that substantially limit one or more major life activities and thus are protected by the ADA.”
There is no current cure for HIV, but medical treatment is available to control it, and the CDC has outlined several methods to help prevent its transmission. According to CDC data from 2016, about 1.1m Americans had HIV infections and an estimated 162,500 additional people had been diagnosed. The Equal Employment Opportunity Commission (EEOC) received 195 complaints of workplace discrimination due to HIV status in fiscal year 2018.
In 2015, a man in Georgia won a $125,000 (£97,200) settlement against his employer after he said he was fired over his HIV status, the BBC reported. Chanse Cox decided to come forward to his managers after his co-workers at the juice production plant Gregory Packaging began gossiping about his condition. Management fired him on the basis that his condition caused a food safety issue. Mr Cox took his case to the EEOC, which sued the company for violating the ADA.
While Mr Gutierrez’s manager at the Big Biscuit did sign the necessary form for him to receive state aid, and Mr Gutierrez has since found other employment, the pain inflicted by his dismissal remained nearly a year later, his attorney said.
“He’s done a very good job of trying to move on, but it was pretty upsetting for him,” Mr Dugan said.
The Washington Post
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