LETTERS From CAMP Rehoboth |
Discriminators are like Batterers |
by Larry Ray |
"Employer discriminators are like batterers," declared Attorney Mickey J. Wheatley. "In their minds, they perceive weak people such as minorities or those with chronic illnesses such as HIV+/AIDS and pursue them. To combat this, you need to put yourself in a strong situation. If you must, come up front with your HIV+/AIDS status." "Dont think of your employer like family," warned Attorney Mindy A. Daniels. "When it comes down to you and them, they will choose their jobs. Even the so-called best witnesses, if they are still employed by the defendant employer, sometimes will cease to remember or suddenly see things differently, giving the benefit of the doubt to the employer." The H.O.P.E. Foundation hosted expert discrimination experts Wheatley and Daniels as guest lecturers at the National Institutes of Health (NIH). Wheatley is in private practice in the District of Columbia, and specializes in employment discrimination. He was counsel in the first successful federal court case that held AIDS was protected under federal law. Daniels is a solo practitioner who has been serving the Washington, D.C. community for over thirteen years. She specializes in medical malpractice, employment discrimination, DWI/DUI and wills. She also founded the National Lesbian Political Action Committee and currently serves as its Executive Director. In 1990, the passage of the Americans with Disabilities Act (ADA) transformed the landscape of discrimination law by protecting both physically and mentally handicapped workers. Federal entities have consistently clarified that HIV+/AIDS is protected by the ADA. The bill also includes those persons who are perceived by the employer to be disabled. During the lecture, Daniels challenged the audience with examples: What if your employer shakes hands with all other employees except you. When he meets you, he keeps his tablet in front of his face. "Is this discrimination? What if your employer claims that your cologne is the reason for his behavior?" Another example: What if all your peers are being promoted except you? What is the test for HIV+/AIDS discrimination? Wheatley and Daniels outlined the vital steps. Under ADA, the person must first show that they are "handicapped" and that the employer knows (or perceives the employee as being handicapped). Second, the person must show that they are otherwise qualified for the job. Third, they must prove that they are treated differently. If the person can demonstrate all this, they then might have a prima facie (basic ingredients) discrimination case. Before the person gets too excited about the case, Daniels recommended a follow-up test: Identify the specific wrongful act(s). Play "devils advocate." How would the employer justify the acts? What would the employer say? They may say that they are fulfilling legitimate business reasons, which may be defenses to a discrimination claim. Can the employee poke a hole in the employers reason? Would the reasonable person, such as jurors, view the employers reasons as merely a pretext? If the employee can progress through this test and feel like a winner, then there might be a case. What about legal resources? Both Wheatley and Daniels advised that employment discrimination cases are almost always labor intensive. Most attorneys cannot usually afford to take on these unpredictable cases without a retainer fee by the party. Beyond the retainer fee, the other costs often involve the discovery, a process that includes depositions and production of documents. Employers with deep pockets often use the litigation strategy of excessive discovery. They hope to wear out the plaintiff-employee, or, in many cases, ex-employee. Wheatley estimated that only one in two hundred discrimination cases are actually "brought forward." He advises persons that if they feel they have an excellent case and they have few resources, try to persuade one of the large law firms to take on the case pro bono. In fact, the Equal Employment Opportunities Office (EEOC) reports that the number of ADA cases have declined in 1996 in contrast to previous years since the passage of ADA. Should HIV+/AIDS employees disclose their condition? This question plagued many of the audience participants, who had to deal with the issue personally. Both Daniels and Wheatley agreed that it depended on the individual case; albeit, society is changing. In the 1980s, they usually advised parties not to disclose unless they were symptomatic. Today, to take advantage of the ADA law, the employee must prove that they have clearly informed the employer of their disability. "It is best to inform the human resources department in writing," advised Wheatley, but remember that "most human resources folks are there to protect the employer. If anyone at the employer is trained in confidentiality, they are." Considering the amount of resources, both financial and human, that lawsuits consume, Wheatley and Daniels both agreed that the first goal is prevention of discrimination. "Reality must be balanced with the practicality." The H.O.P.E. (The Health Options and Positive Energy Foundation) sponsors periodical lectures and monthly socials for the HIV+/AIDS community. Coordinator David Michelson expressed how necessary the monthly socials are. He described them as a safe spot where "people can be relaxed and be themselves." Guest lecturers tackle challenging HIV+/AIDS issues such as discrimination. |
LETTERS From CAMP Rehoboth, Vol. 9, No. 5, May 21, 1999 |