The ACLU filed this amicus brief on behalf of the plaintiff in a wrongful termination action brought under the Americans with Disabilities Act (ADA) and Colorado state anti-discrimination laws. The plaintiff, who is HIV-positive, was removed from his position as a phlebotomist at a blood donation center and offered a position with lower skill requirements. The defendant justified its action by invoking the ADA's "direct threat" defense, arguing that, as a person with HIV, the plaintiff posed a danger to others in the workplace.
The brief argues that the direct threat affirmative defense is not applicable in this case because an HIV-positive phlebotomist may safely draw blood as long as universal precautions are observed. Moreover, in order for the direct threat defense to be successful, there must be a significant risk of substantial harm, not merely some potential risk. There are millions of blood donations every year in the United States and there has never been an instance of HIV transmission from a phlebotomist to a blood donor.
Further, restricting access to certain occupations for HIV-positive people is contrary to public policy and the intended purpose of the ADA. HIV-related stigma is the result of misinformation and irrational fear and our civil rights laws demand that decisions, such as those related to employment, not be premised on unfounded prejudice. In this case, the employer was concerned about public reaction should the plaintiff's HIV status ever become public knowledge. Instead of attempting to educate the public about the insignificant risk of HIV transmission in this scenario, the employer opted to accommodate its own perception of public reaction, thus perpetuating the stigma and validating the unfounded concerns of a misinformed minority.