Don't Ask, Don't Tell Comes to the Workplace

QUESTION:

I've been going through the painful process of looking for a job for six months. I felt hopeful about snagging the last one -- until the interviewer asked whether I was taking any prescription drugs. I was diagnosed HIV-positive three years ago. I'm currently symptom-free, but am taking a cocktail of drugs for treatment. I felt like I'd be damned either way for answering this question. Advice?

ANSWER:

Your instincts were good. If you have been diagnosed as HIV-positive, you have a "disability" within the meaning of the Americans with Disabilities Act (ADA), even if you do not have any actual symptoms of illness. The ADA is a federal law that prohibits discrimination against people who have or are perceived to have a disability. At the hiring stage, the ADA requires that all job decisions be based on the applicant's ability or inability to do the job and not on any disability that the applicant might have.

Practically speaking, this means that it is flat-out illegal for employers to ask during an interview the question that you were asked about prescription drug use. Employers cannot ask during a pre-employment interview questions about medical conditions, past or present, or about whether the applicant is disabled or about the severity of a disability. They can, however, ask questions about whether an applicant is able to perform job-related functions, so long as those questions are not phrased in terms of disability.

Despite the law's good intentions, many employers have been slow on the uptake, continuing to pry into applicants' prescription drug use and other health issues. If asked about prescription drug use in the future, your best bet is to steer the conversation directly to job-related tasks and find out the questioner's true concerns. Ask the questioner for a specific list of the job duties and responsibilities, and then assure the questioner that you are capable of performing each one. For example, if the job requires quick thinking and talking, assure the questioner that you have no problem remaining alert during the workday.