Many people don’t realize that the Americans with Disabilities Act (ADA) protects not only employees with substantial hearing, visual, or mental impairments, but also those with HIV or AIDS. The ADA prohibits discrimination against “qualified individuals with disabilities.” Any physical or mental impairment that substantially limits one or more major life activities can qualify as a disability, and HIV disease is such an impairment.
Earlier this month in Norfolk, former Burger King manager Christopher Peña filed a discrimination suit against Burger King for allegedly terminating him upon learning he was HIV positive. Burger King says he was fired for poor performance. The complaint seeks compensatory damages for lost past and future wages, benefits, and emotional distress. It also seeks punitive damages, costs and attorney fees, reinstatement, and an injunction precluding further violations of the ADA.
Peña joined Burger King in 2004 and became a district manager, responsible for nine restaurants. When he learned he was HIV positive, he debated whether to tell the company but decided he should do so in case he reacted to his medications and had to miss work. He claims he had no disciplinary actions against him prior to disclosing his HIV status to a supervisor in June 2011. But shortly after the disclosure, one of his restaurants failed an audit, other restaurants within his management experienced service problems, and he dismissed an employee for stealing money. The company terminated his employment in September 2011.
Peña claims other managers in the company had similar problems but were not subjected to the disciplinary action he received. He asserts that he performed well and that Burger King created a record of poor performance as a pretext for terminating him once the company learned of his HIV status.
Pretextual terminations are not new. Employers who fear higher health insurance or accommodation costs have terminated HIV positive employees. And though HIV is not on the Centers for Disease Control and Prevention list of infectious and communicable diseases transmissible through food handling, some in the restaurant business still harbor fears regarding HIV.