Discrimination | HIV/AIDS | Maine

Yes, Maine has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing and public accommodations. In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.

People with HIV are protected under laws that prohibit discrimination on the basis of disability. This includes the federal Americans with Disabilities Act (ADA),  and Maine disability & anti-discrimination laws.

The following people are protected under the Maine Human Rights Act (MHRA) and the Americans with Disabilities Act (ADA):

• 患有愛滋病或愛滋病毒陽性的人，即使他們無症狀且沒有外在或明顯的疾病跡象。
• People who are regarded or perceived as having HIV.
• A person who does not have HIV, but who has a “relationship” or “associates” with a person with HIV—such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of a person or persons with HIV.

People with HIV are protected from employment-related discrimination under the MHRA1 and the federal ADA. Both of these statutes, which are almost identical, prohibit discrimination in employment on the basis of a person’s disability. Maine law covers state and private employers with one or more persons. The ADA covers employers with 15 or more employees.

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on an individual’s HIV/AIDS status.

這裡的重點是愛滋病患者或愛滋病毒感染者是否與其他類似情況下的申請人或員工受到不同的待遇。

No, an employer may not require an applicant or an employee to submit to an HIV test or disclose HIV status as a condition of employment or to maintain employment.4

There is an exception, however, permitting an employer to require an HIV test when based on a “bona fide occupational qualification.” There are few, if any, employment settings in which an employer could prevail in its view that an HIV test is based on a “bona fide occupational qualification.”

Nevertheless, one recent legal development merits special attention here. Some courts have ruled that HIV-positive health care workers who perform invasive procedures can be terminated from employment because of the risk of HIV transmission posed to patients. The AIDS Law Project believes that these cases have been wrongly decided. In light of these cases, however, it is critical that a health care worker obtain legal advice or assistance if an employer requires an HIV test as a condition of employment.

Under the ADA and Maine law, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:

• 您曾經住院或接受過醫師的照護嗎？
• 您是否曾經領取過工傷賠償或殘障福利？
• 你吃什麼藥？

After a conditional offer of employment, the ADA and Maine Law permit an employer to require a physical examination or medical history. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category. In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections. After employment has begun, the ADA and Maine Law permit an employer to require a physical examination, only if it is job-related and consistent with business necessity.

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• 風險的機率；以及
• 是否可以透過合理的安排消除風險。

In the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and instead have focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation … Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …” (Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (4^日 Cir. 1995)).

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

雖然諮詢律師可能會有所幫助，但以下步驟可以幫助您開始考慮和評估潛在的就業歧視問題。

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, a bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.

2. To prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:

• 雇主知道或得知您是愛滋病毒陽性或患有愛滋病；
• 無論是否有合理的便利條件，您都具備履行該工作基本職責的資格；並且
• Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.

3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?

4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas: o Have other employees in similar situations been treated differently or the same?

• Has your employer followed its personnel policies? o Did the adverse treatment begin shortly after the employer learned of your HIV status?
• 您是否曾因病缺勤過一段時間，且返回工作崗位後是否開始受到不良治療？
• 你的雇主對此事的描述是怎樣的？你該如何證明雇主的說法是錯的？

5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to brainstorm to create a reasonable accommodation that you can propose to your employer.

以下是需要考慮的幾點：

• 該公司如何運作？實際的住宿安排如何？
• 站在主管的角度想想，對於你提出的合理安排，主管可能會提出哪些異議？例如，如果你需要在某個時間離開去看醫生，誰來接替你的工作？

It is illegal under both Maine law14 and the National Fair Housing Amendments of 198815 to discriminate in the sale or rental of housing on the basis of HIV status. A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

In addition, a person cannot be discriminated against in housing because of their “association” with a person with HIV. This means a person cannot be discriminated against because their roommate, lover, friend, relative, or business partner has HIV.

Yes, exceptions to Maine law exist for the rental of a room in an owner occupied building where not more than 4 rooms are rented; and for two family owner occupied buildings. In addition, the Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit the occupancy to members.

Under the ADA and MHRA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “place of public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public. In addition, the Federal Rehabilitation Act of 19738 prohibits discrimination on the basis of disability in any agency or program that receives federal funding, including hospitals, medical or dental offices, and educational institutions.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, schools, vocational or other educational programs, taxi cabs, buses, airplanes and other modes of transportation, health clubs, hospitals and medical and dental offices, as long as these facilities are generally open to the public.

In addition, Maine law specifically prohibits discrimination in education based on disability.

Believe it or not, yes, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers.  This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

醫生通常試圖用以下兩個論點之一來證明對愛滋病毒感染者的歧視是合理的：

1. 「治療愛滋病毒感染者是危險的」（有些醫生因為對愛滋病毒傳播的非理性恐懼而拒絕治療愛滋病毒感染者）；
2. 「治療愛滋病毒感染者需要特殊的專業知識」（有些醫生錯誤地認為全科醫生沒有資格為愛滋病毒感染者提供護理，因此將患者轉診給其他醫療服務提供者）。

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Maine law.

Courts and medical experts have responded to these arguments in the following ways:

1. “Treating People with HIV is Dangerous”

Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needle sticks or other exposures to blood.  However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

因此，1998年，美國最高法院就此案作出裁決 布拉格登訴阿博特案 that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission (524 U.S. 624 (1998)).

In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.

2. “Treating People with HIV Requires Special Expertise”

在這些情況下，歧視主張的是非曲直取決於基於客觀醫學證據，病人所需的服務或治療是否需要轉診給專科醫生，或是否屬於服務提供者的服務和能力範圍。

在 美國訴莫萬特案，一家聯邦審判法院駁回了一名牙醫的訴求，該牙醫聲稱愛滋病毒感染者需要專科醫生進行常規牙科護理（898 F. Supp. 1157 (ED La 1995)）。法院採納了專家的證詞，即除了一般牙醫所具備的技能外，無需任何其他特殊培訓或專業知識即可為愛滋病毒感染者提供牙科治療。法院特別駁回了該牙醫的論點，即他不具備資格，因為他沒有及時掌握治療愛滋病毒感染者所需的文獻和培訓。雖然此案發生在牙科護理的背景下，但它也適用於其他醫療環境。

Under Title III of the ADA (42 U.S.C. §§ 12181-12188), it is illegal for a health care provider to:

1. 建立接受醫療服務的“資格標準”，往往會篩選出愛滋病毒檢測呈陽性的患者。
2. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
3. 為愛滋病毒陽性患者提供「不同或單獨」的服務，或未能在「最全面的環境中」為患者提供服務。
4. 拒絕向已知與愛滋病毒感染者有「關係」或「交往」的人（如配偶、伴侶、子女或朋友）提供平等的醫療服務。

將上述 ADA 的具體規定應用於醫療保健實踐，以下做法是違法的：

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.
• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

To pursue a claim under the Americans with Disabilities Act for employment discrimination, the employer must have at least 15 employees. A person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease). Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding.

為了根據《康復法》提出索賠，個人可以向聯邦衛生與公眾服務部地區辦事處提出行政投訴和/或直接向法院提起訴訟。

根據《國家公平住房法》，如需就住房歧視提起索賠，個人可在違規行為發生後一年內向美國住房和城市發展部 (HUD) 提出投訴。個人也可在違規行為發生後兩年內提起訴訟。無論個人是否已向 HUD 提出投訴，均可提起訴訟。