This week, the New York City police department settled a lawsuit brought against it by the US Department of Justice on behalf of an HIV positive man who was denied a job as a dispatcher. The settlement includes $85K in damages, plus a job offer to employ the plaintiff into the position for which he applied.
The man applied for the position in the summer of 2013 and received a conditional job offer. However, the offer was revoked in December 2013 due to medical disqualification, after he had disclosed his HIV status. The DOJ filed suit alleging that having HIV is considered a disability for the purposes of ADA discrimination, even when no symptoms are present.
Medical Condition and Disability Discrimination
Generally, under the ADA, a disability must be permanent to qualify for protection under the law. Additionally, the law defines a disability as a physical or mental impairment that substantially limits a person's major life activities. An HIV positive person will qualify for protection under the ADA even if they are asymptomatic because having that medical condition requires a person to limit many major life activities.
Other serious, permanent medical conditions also qualify for protection. Some common conditions include: diabetes, epilepsy, and multiple sclerosis. However, conditions like broken bones, colds, or temporary illness will not qualify. Some conditions, like obesity, will depend on whether the condition is related to another medical cause.
Suing for Reinstatement
Perhaps the most interesting aspect of this settlement is the offer of employment. While employers likely will not want to hire a person who has sued them, sometimes courts will order reinstatement. However, courts will often decline to order reinstatement if the court believes that the work environment has become too hostile.
If a court declines to order reinstatement, or it is not included in a settlement, a plaintiff's damages could be much larger. In employment discrimination actions, not only will a plaintiff be able to seek damages for emotional distress and harm and lost wages and benefits, but can also seek future lost wages. By offering to employ an employment discrimination plaintiff, an employer can mitigate damages.