ACLU Tells Federal Appeals Court that HIV Positive Health Care Workers Pose No Threat to Others

Affiliate: ACLU of Colorado
January 6, 2005 12:00 am

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DENVER – The American Civil Liberties Union filed a friend-of-the-court brief before the United States Court of Appeals for the Tenth Circuit today urging the court to allow a discrimination suit to go forward that was brought by a phlebotomist who was fired after notifying his employer that he was HIV positive.

“It’s disgraceful that medical professionals who know perfectly well that this employee posed no real risk to blood donors chose to fire a good employee out of fear of public prejudice,” said Rose Saxe, a staff attorney with the ACLU’s AIDS Project. “HIV positive people need to be able to make a living and support themselves just like everyone else, and their livelihood shouldn’t be at the mercy of irrational stereotypes.”

John Couture was hired by Bonfils Memorial Blood Center to work as a phlebotomist as part of a mobile blood collection team. Several weeks into his training, he was informed that members of his training class would practice on each other to learn how to draw blood. Couture disclosed his HIV status to his employer to avoid the possibility that one of one of his colleagues would come into contact with his blood during this one-time training. As a result, Bonfils Memorial Blood Center fired him from his position as a phlebotomist, yet allowed him to apply for an inferior position in the production department where he would have no contact with blood donors. Soon thereafter Couture contacted the Legal Center for People with Disabilities which filed a discrimination lawsuit on his behalf.

“I was diagnosed with HIV over eight years ago and know how difficult it is to live with this disease,” said Couture. “There’s no way I would do anything to risk infecting a blood donor. It’s very upsetting that my desire to protect the safety of my co-workers has cost me my job.”

According to the brief filed by the ACLU, Bonfils Memorial Blood Center violated Couture’s rights under the Americans with Disabilities Act by illegally firing him even though the medical evidence shows that he was not a legitimate risk to blood donors. The law is clear that mere unsubstantiated guesswork that others may be at risk of infection is insufficient to justify a firing. The brief points out that although more than eight million people give blood each year, no one has ever been infected with HIV by giving blood. The brief concludes that the risk of becoming infected by an HIV positive phlebotomist when donating blood would be far, far less than one-in-a-million.

“Even the CDC recommendations show that HIV positive phlebotomists are no risk to blood donors,” said Mark Silverstein, Legal Director of the ACLU of Colorado.

In the incredibly unlikely event that a donor was exposed to the HIV virus, it is unlikely that he or she would become infected. In the event of such an unheard of exposure in the blood-donor setting, there are also drugs that would further decrease the likelihood of infection if taken immediately after the exposure.

“It’s very upsetting that more than 20 years into the AIDS epidemic even educated medical professionals make decisions about HIV infection based on fear rather than science,” said Eric Maxfield, one of the attorneys representing Couture with the Legal Center for People with Disabilities and Older People. “We hope the court sends a message to all employers confirming that the law doesn’t allow people to be fired because of unfounded prejudice.”

In addition to the ACLU, the brief was submitted on behalf of AIDS Alliance for Children, Youth and Families; Association of Nurses in AIDS Care; Boulder County AIDS Project; Northern Colorado AIDS Project, and Whitman-Walker Clinic.

Lambda Legal, American Academy of HIV Medicine, International Association of Physicians in AIDS Care, National Association of People with AIDS, Western Colorado AIDS Project, and Women’s Lighthouse Project are also filing a friend-of-the-court brief urging the court to hold that the ADA protects people with HIV from discrimination.

A copy of the ACLU’s brief is available at /node/36220

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