Compliance January 14, 2005

Civil Rights Battle Brewing Over HIV Firing Appeal

January 14, 2005 (PLANSPONSOR.com) - Civil rights advocates are warning that a Denver federal judge's ruling that a blood bank was entitled to transfer an HIV-positive employee to a job with no donor contact could open disabled workers up to new workplace discrimination.

Reported by

Fred Schneyer

>Plaintiff John Couture has appealed the August 2004 ruling by US District Judge Robert Blackburn dismissing his suit against the Bonfils Blood Center and several civil rights groups are trying to intervene in the case before the US 10 ^th Circuit Court of Appeals, according to an Associated Press news report.

According to the AP, Couture told a supervisor at Bonfils he had the AIDS virus in 2001, when Couture was training to take blood from donors. The two sides disagree about the circumstances of Coutre’s subsequent departure from Bonfils; the company said Couture resigned when he was offered the other job with no donor contact while he insisted his departure was against his will because he wanted to stay in the old job.

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dismissed Couture HIV discrimination suit, ruling that the worker hadn’t suffered harm because he voluntarily resigned and that he didn’t have legal standing to sue because his former employer had offered him a job with the same salary and benefits.

The civil rights groups have asked the 10 ^th Circuit for permission to intervene in the appeal, saying that Blackburn’s decision could open gaping holes in discrimination protections – a request Bonfils is opposing. “What the court is essentially saying is it’s not discriminatory to so-called laterally transfer those people to a back-office, stockroom job,” John Hummel, an attorney for The Center’s Legal Initiative Project, told the AP.

Couture, who said he hoped to use the blood bank job to start a medical career, now works as a dialysis technician. He said he first filed the lawsuit just to get his job back but now sees an opportunity for public education.

“There might be a slight decline (in blood donations) until they can get the word out there’s no way you can get HIV while giving blood,” he told the AP. “(Any perceived threat) is all supposition. The bottom line is, was my HIV status ever going to get out to the public? Probably not.”

Bonfils supplies more than 80% of the blood used in Colorado hospitals. The Supreme Court and lower federal courts have held that HIV infection is a disability, meaning the Americans with Disabilities Act bars employers from discriminating against HIV-positive plaintiffs.