HIV/AIDS | Discrimination | New Hampshire

New Hampshire Discrimination Q&A

 

 

 

Does New Hampshire have laws protecting people with HIV from discrimination?

Yes, New Hampshire 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.

Who is protected under anti-discrimination laws?

• 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.
• Under federal law, but not New Hampshire law, a person who does not have HIV, but who “associates” with a person with HIV — such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of persons with HIV.

哪些法律保護愛滋病毒感染者免受就業歧視？

People with HIV are protected under the New Hampshire Law Against Discrimination (RSA § 354-A), and the federal Americans with Disabilities Act (ADA). Both of these statutes prohibit discrimination in employment on the basis of a person’s disability. New Hampshire law covers workplaces with six or more employees. The ADA covers workplaces with 15 or more employees.

The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment and in the employment practices of federal contractors.

For more information, visit our employment discrimination resource page. 

這些反歧視法禁止什麼？

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 the fact that a person is HIV-positive or has AIDS.

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。

以下是非法歧視的例子：

• 雇主不得因擔心愛滋病毒感染者會傳染給其他員工或顧客而拒絕僱用該感染者。
• 雇主不得基於某人將來可能生病而無法勝任工作的可能性或機率而拒絕僱用或做出僱用決定。

雇主不能因為這會增加健康或工人賠償保險費而拒絕僱用某人。

What may an employer ask about an employee’s health during the application and interview process?

Under the ADA and New Hampshire 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 an offer of employment, can an employer require a medical exam? What guidelines apply?

If an employer has 15 or more employees, they must comply with the ADA. After a conditional offer of employment, the ADA permits 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 permits an employer to require a physical examination, only if it is job-related and consistent with business necessity.

If an employer has at least six but fewer than 15 employees, only New Hampshire law applies. New Hampshire law allows employers, after making an offer of employment, to inquire into and keep records of existing or pre-existing physical or mental conditions (RSA § 354-A:7, III). New Hampshire law, however, does not mandate the specific requirements and limitations that are contained in the ADA regarding a post-offer exam.

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

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。

However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and 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.

評估雇主的歧視

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. 考慮一下不公平和非法歧視之間的區別。勞動法的底線是，員工可以因為正當理由、不正當理由或根本沒有理由而被解僱。一個人可以因為很多原因被合法解僱，包括「性格不符」。他們不能因為以下原因被解僱： 歧視性的 法律明確禁止的原因。
2. 為了證明歧視主張（即，您因歧視而不是某些正當理由而被解僱、降職等），您必須能夠證明以下內容：

• 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. 如果您的雇主知道您感染了愛滋病毒或愛滋病，請明確說明誰知道、他們是如何知道的以及他們何時發現的。如果您沒有告訴雇主，雇主還有其他途徑知道或懷疑您的愛滋病毒狀況嗎？
4. 考慮一下您認為自己因愛滋病毒感染狀況而受到區別對待的原因，包括以下方面：

• 處於類似情況的其他員工是否受到了不同的待遇或相同的待遇？

• 您的雇主是否遵守了其人事政策？

• 雇主得知您的愛滋病毒狀況後不久就開始對您進行不利的待遇了嗎？

• 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 try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:

• 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？

What laws prohibit discrimination in housing?

It is illegal, under both New Hampshire law (RSA § 354-A:12) and the National Fair Housing Amendments of 1989, 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 because of his or her “association” with a person with HIV. This means a person cannot be discriminated against because his or her roommate, lover, relative, or business partner has HIV.

For more information, visit our New Hampshire Housing Discrimination resource page. 

這些法律有例外嗎？

Yes, exceptions to New Hampshire law exist for single family homes rented by the owner; for residences of 3 or fewer apartments when the owner occupies one apartment; and for residences of five or fewer rooms when the owner or owner’s family live in one room (RSA § 354-A:13). In addition, the Fair Housing Act exempts, in some circumstances, owner-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 occupancy to members.

Do New Hampshire laws protect against discrimination by health care providers, businesses, and other public places?

Yes, under New Hampshire law (RSA § 354-A:1) and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “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 1973 (29 U.S.C.A. § 794) 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.

因此，愛滋病毒感染者在幾乎所有公共場所或企業都受到保護，免受歧視，包括酒吧、餐廳、酒店、商店、學校、職業或其他教育項目、計程車、公共汽車、飛機和其他交通工具、健身俱樂部、醫院以及醫療和牙科診所，只要這些設施通常向公眾開放。

For more information, visit our New Hampshire Public Accommodations Discrimination resource page.  

Is discrimination by health care professionals against people with HIV still a problem?

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.

What types of arguments do doctors who discriminate against people with HIV make, and are they legitimate?

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 New Hampshire law.

法院和醫學專家對這些論點有何反應？

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

1. “治療愛滋病毒感染者是危險的”

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. “治療愛滋病毒感染者需要特殊的專業知識”

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。

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

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

• 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.
• 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。
• 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。
• 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。

What specific health care practices constitute illegal discrimination against people with HIV?

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：

1. 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.
2. 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.
3. 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.
4. 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.

根據聯邦法律，針對歧視有哪些潛在的補救措施？

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。