Disclosing HIV Status in Employment

 

Audience: Consumers, employees, employers, service providers

Author: Betty Kohlenberg, M.S., CRC, ABVE

Summary: Disclosure of HIV status is a complex issue to be decided by the person living with HIV/AIDS, most often during job interviews and when asking for accommodations. Knowing the applicable laws and thinking the decision through prior to a discussion enable the person with HIV/AIDS to make an informed choice about what and how much to say.

 

Deciding to Disclose

Times have changed!  In the last fifty years, the Federal and state governments have passed many laws regulating the relationships between employers and employees. Discrimination laws focus the exchange of information between the two parties only on information relevant to the performance of the job. This focus allows employers to learn what they need to know to make the hiring decision without intruding on irrelevant employee data, and allows employees to decide how much to say about personal issues.

Employers have learned that many factors they thought make an employee effective are, in fact, assumptions, generalizations and prejudice. Employees have learned that being honest is not equivalent to complete revelation of personal information. This includes discussions of physical and mental disabilities.

It's important to plan what you are going to say and what you are not going to mention in a job interview. Knowing which questions an employer may not ask helps you think about your answers. Remember to ask yourself: "Is this information relevant to how I will be able to perform the job?" 

What Are Legal and Illegal Questions?

Employers may not ask about your physical condition or disability. This includes any question about your general health, use of sick leave or Workers' Compensation benefits or general inquiry into a physical disability or handicap.

The employer may show you a job description and ask if you can perform the essential functions of the job, with or without accommodation. If you need accommodations, the employer may not decline to hire you on that basis, unless the accommodation causes the employer undue hardship. Many accommodations involve no financial outlay, such as changes in schedules, or minimal expenditures, making the claim of hardship unsustainable.

Employers also must not discriminate on the basis of age, race, religion, sex, marital status or family, as well as other criteria. State and local laws may provide more protection. For more details about employment discrimination, contact the Equal Employment Opportunity Commission. See the end of this article for the list of the state agency in each state which protects your rights.

What the ADA Says

The Federal Americans with Disabilities Act of 1990 ( ADA ) covers all employers with 15 or more employees and outlaws discrimination against otherwise qualified individuals with disabilities in regard to employment (Title I). Compliance with the ADA establishes a two-part hiring process: the steps before the job offer and those actions to be taken after the job offer.

Before the Job Offer

Before the job offer, employers may not ask, directly or indirectly, about the existence of a disability, the impact of a disability or the cause or duration of a disability.

They should ask about whether the job applicant has the skills and abilities to perform the essential functions of the job. The employer should ask no questions about the need for or type of accommodations until the employer interviewer knows that the applicant has the skills to perform the job in question. No interviewer question should convey an assumption that the applicant has a disability.

As an employee, you should ask for accommodations when you are able to see the actual working conditions. This is best done after the job offer, once you have started work.

After the Job Offer

Employers may require applicants for jobs or employees returning after an injury to have a medical exam. The medical exam must be job-related, not a general exam, and must be required of all applicants or returning employees. Employers cannot ask only applicants whose disabilities are obvious to undergo a medical exam.

Why Do Employers Ask Illegal Questions?

Some employers don't know the law or unaware of recent changes in personnel practices, though that is not a valid excuse. The people who are hiring often are experts at doing the job for which they are hiring, not at interviewing.

Many small employers have not learned how to interview and hire in compliance with the ADA . Many hire so infrequently that it may not occur to them that the laws have changed, nor do they feel it is necessary to spend time or money to learn lots of details about something they do so rarely.

Some employers don't care. They feel they have a right to know details about a potential employee and have not worked out a method to ask within legal limits. If you meet an employer who shows this attitude in hiring, you can reasonably expect that the employer will be just as cavalier about other issues affecting your job. You may not want to work for this person.

What Should You Say?

On an Application

If the illegal question is on an employment application, you can leave it blank or write NA (for Not Applicable). You may answer it if you want. The information is yours and it is legal for you to disclose it, but I do not recommend that you give employers information to which they are not entitled. You put the employer into an awkward situation of knowing something s/he is not supposed to know. You also do not know what the response will be to the information, even if you feel comfortable talking about yourself.

You may be concerned that an employer who sees a blank or NA on an application, even if the question is illegal, will not ask you to interview. This may occur, but you cannot control the behaviors of other people and you probably don't want to work for an employer who responds in that manner.

In an Interview

If you are asked an illegal question in an interview, you have several options of how to answer. I recommend the first one (in BOLD ).

1. ANSWER THE QUESTION THEY SHOULD HAVE ASKED 

Presume the question was worded poorly but that the employer has good motives. Try to understand the unstated concern under the question, then answer the question as it should have been asked: 

You asked how my health is. I expect you want to know if I can be here reliably. I haven't missed a day of work in years, with the exception of the flu I had a few years ago. I even came in after the earthquake to make sure everything was okay.

-or-

My health is under good control. I'm sure you want someone who can be punctual and consistent. On my last job, I was late only twice in five years, and I rarely used all my leave time. It's important to me to be known as reliable and I'll make sure you can count on me to be here.

-or-

I'm doing fine. Thanks for asking. I've been so active lately, with being at the agency twice a week, exercise and classes, I have no doubt I'll be able to handle the job here. It'll probably be easier than my current schedule because I'll be in the same place every day.

2. ANSWER WITH THE STARE

You can sit quietly with a pleasant expression on your face and say nothing. A few seconds of silence will alert the employer that there is a problem in the question. He or she may go on to another topic, laugh uncomfortably or even repeat the question. Saying nothing is a fairly hostile response, so don't use it unless you are willing to risk not getting a job offer or setting up an atmosphere of confrontation.

3. ANSWER THE QUESTION AS IT WAS ASKED

In the interview, just as on the application, you have the right to answer an illegal question, if you choose. It's only illegal for the employer to ask, not for you to respond. If you think the answer will not be held against you, you may reveal anything you want about yourself. The drawback to this choice is that you don't know the interviewer's prejudices so you don't know how your response will be interpreted. If you say in response to a question about children, "I've got two beautiful children, but they're grown up and on their own, so I don't have child care issues," you may inadvertently be revealing you are older than you look.

The only times I recommend revealing a protected piece of information are:

 - if you have a very youthful appearance and are interviewing for a responsible position, you might say:

"I know I look young, but I'm 29 and I've been working in the field for eight years."

 - or if you are balding and/or look significantly older than you are, you might say:

"My dad gave me the gift of looking mature beyond my years, but I'm really only 29 and I've got all the energy and ambition of a young man."

4. ASK HOW THE QUESTION RELATES TO YOUR PERFORMANCE OF THE JOB 

This is another confrontational response. It lets the employer know that you are aware of your rights as an applicant and that you know s/he just violated the law. It doesn't make a job offer a likely outcome of the interview.

I recommend the first method, since it lets you act graciously and generously toward an interviewer. You can help an inexperienced employer avoid a potential problem and show how easy you are to be around - a good person to hire! 

Discussing Your Disability: Should You Say Anything?

Your disability may not be visible or very obvious to the outside world. Should you say something to potential employers? Do you have to say anything at the interview? 

The ADA prevents employers from asking applicants about their disabilities before it is necessary. It does not prevent the applicant from voluntarily disclosing information about her or his disability. How do you, the job seeker, decide what to do?  Here are some arguments which can help you figure out what approach you want to take.

Invisible and Visible Disabilities

An invisible or hidden disability is one that is not immediately obvious to an observer. Some common medical conditions that cause invisible disabilities are diabetes, HIV/AIDS, back problems, heart problems, arthritis and asthma. Visible disabilities include using a wheelchair, blindness or loss of a limb.

In the Mainstream' s editor Fritz Rumpel noted that "There is a general belief in the rehabilitation and disability communities that job-seekers with hidden disabilities rarely disclose their impairments - ever ." [author's emphasis]

One Choice: Don't Talk about the Disability

The major reasons for not disclosing a visible disability prior to the interview include:

1. You might not get the chance to interview, to present your qualifications if you disclose a disability. There is ample evidence of employer discrimination toward persons with disabilities that necessitated passage of the ADA and other laws against discrimination against persons with disabilities.

2. Disclosing the disability makes it a relevant part of job seeking. Your abilities to do the job should be the focus of the interview. The mechanics of how to do the job, whether and which accommodations you might need should be discussed only after the job offer.

3. Talking about the disability takes up the limited time in an interview when you could be displaying your skills and relevant experience to do the job.

4. Talking about the disability, especially as part of the initial interviewing process, makes the disability a part of your introduction of yourself, a lasting label, long after any accommodations of the disability on the job are worked out. You become "John, the guy with one arm" rather than "John, the office administrator."

5. Not disclosing the disability also allows you to place the disability in the proper perspective in regard to employment. You manage your disability while focusing on the main task: doing the job. The disability is not the major element of your work life.

This may be a change in emphasis for newly disabled workers or people whose lives have been completely changed by illness, whose disability has been the major topic of conversation and the driving force in all their interactions for years. It is common when a disabling condition occurs that every aspect of life is predicated on the medical condition: food, sleep, activity schedules, income, and social life, reading material, public and private relationships. Even conversations change. Discussing intimate details with relative strangers is acceptable, even expected.

Often the disabling condition is the reason most people - the insurance company, employer, physicians and other medical personnel - contact a disabled person and the primary cause of changes in his or her financial, marital, familial, social and sexual life.

Not mentioning the disability in an interview can be a first indication of the resumption of a life that no longer revolves around the disability. Non-disclosure can even help change your life focus, turning your attention outward, expanding from the survival mode and thinking about other issues including work. To widen your gaze beyond your medical condition, you will want to learn appropriate ways to speak about your life in an employment situation. It is common that a person with a disability does not know how to describe his or her skills and situation in a manner that does not include mentioning the disability. This lack of interviewing skills, easily corrected, should not be the reason for revealing a disability in the interview.

Often individuals who have disabilities forget that many of their fellow employees go to work daily with invisible disabilities or potentially disabling conditions: ulcers, migraines or mental disabilities for example. They work around their discomforts or inabilities without feeling the need to explain them to an interviewer or employer.

6. You can always talk about the disability after you are on the job and know more about what kind of accommodations you need. You have not lost your ADA rights to reasonable accommodation by not revealing the disability at the time of the interview.

Another Choice: Talk about the Disability

Some reasons for telling the interviewer about your disability prior to the interview include:

1. It indicates acceptance of yourself as having the disability. Willingness to tell a stranger about a disability may reflect your comfort with being a person with a disability and may help others to be comfortable with you.

2. It weeds out those interviewers who will be unable to deal with the disability and evaluate you on your credentials fairly, because of their reaction to the disability.

3. It helps you not waste your time trying to alter the perceptions or help in the adjustment of an interviewer. Some people with disabilities feel they don't really want to work in a situation where they have to prove themselves to someone.

Although this approach may be seen as condoning discrimination, it also acknowledges the enormous amounts of energy that people with disabilities expend on helping others change their attitudes, just to start a working relationship.

4. It deals with the disability issue right away and does not create a situation in which the interviewer may be uncomfortably surprised. Some people with disabilities are concerned that surprising an interviewer might create a lasting barrier to long-term career success by forming a bad first impression.

5. It allows the interviewer to formulate relevant questions for the interview ahead of time.

6. People living with disabilities sometimes feel that being honest, candid and frank about their disability signals how they want the disability issue to be handled.

People with disabilities such as cancer or other serious illnesses have spoken about not wanting to hide behind employment laws. The hard-won and emotionally difficult decision to reveal controversial aspects of your life, to be open and "out" about disability status, often allows you to speak freely about your life, perhaps for the first time. The thought of reverting to being discreet, even closeted about important parts of your life may feel constraining and no longer acceptable.

A receptive hearer may appreciate your courage in disclosing a disabling condition. Some job seekers feel admired and remembered better because of the uniqueness and honesty of this approach.

The Decision is Up to You

Whatever way you decide to handle the issue of your disability in an interview and at work, remember:

 

Discrimination is illegal.

Abilities - not disabilities - are what count.