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October 01, 2004

Confronting HIV Discrimination in the Workplace: A Case Study

by Hayley Gorenberg

Even as the quarter-century mark in the HIV/AIDS epidemic approaches, many HIV-positive employees experience job-threatening discrimination, especially if they do not “drive desks.” Lambda Legal, the nation’s oldest and largest civil rights firm for lesbian, gay, bisexual, transgender, and HIV-positive people, has recently developed cases for an HIV-positive police officer, a medical technician, an auto glass installer, and, most famously, a talented gymnast whose discrimination claim yielded this year’s record-setting settlement in Cusick v. Cirque du Soleil. (EEOC No. 340-2003-10938.) Matthew Cusick’s job under the big top may have been unusual, but the discrimination he faced in the workplace is all too common. Lambda Legal’s national Help Desk logs thousands of calls each year, and the greatest source of complaints from its HIV-positive callers involves workplace discrimination. This article examines a few of the critical components to success in Cusick’s case.

Cirque du Soleil, the premier acrobatic circus show, hired Matthew Cusick in 2002 and assigned him to the international company’s Las Vegas production, Mystère. In general health discussions with Cirque’s physiotherapy department at the beginning of his training, Cusick voluntarily disclosed his HIV status. At Cirque’s request, he twice visited doctors who assessed his HIV and judged him a “healthy athlete.” He was cleared for full performance activities with Cirque. Yet in the spring of 2003, fresh from several months of intense training, Cirque fired Cusick based upon fears of HIV transmission, claiming it was acting to protect other employees from “known safety hazards.” Shortly thereafter, Cusick came to Lambda Legal.

When Cirque refused to reconsider its decision, Lambda Legal filed a complaint under the Americans with Disabilities Act (ADA) with the Los Angeles office of the Equal Employment Opportunity Commission (EEOC). After the EEOC investigation supported Cusick’s allegations, conciliation talks between the parties eventually resulted in a groundbreaking settlement for HIV-related employment discrimination complaints. It included revision of Cirque’s antidiscrimination policies; ongoing, top-to-bottom antidiscrimination training for Cirque’s employees worldwide; a minimum of two years of compliance monitoring by the EEOC; compensation for Cusick’s lost wages in the amount of $60,000; front pay in the amount of $200,000; and compensatory damages of $300,000, the maximum available under the ADA for a company of Cirque’s size. Lambda Legal also received $40,000 toward payment for its attorney fees.

The Power of Public Disclosure

Public awareness exerted critical pressure throughout Cusick’s case. Lambda’s “Discrimination: The Other Side of Cirque du Soleil” public education campaign encouraged patrons to examine Cirque’s values and standards. Rather than a boycott, Lambda Legal promoted education and individual responses, ultimately sending thousands of petition signatures and messages to Cirque. One evening Cusick himself stood outside a show in California and urged some reluctant patrons to use their tickets and go inside, but to keep him in mind. At another show, local HIV activists donned clown costumes when they distributed educational flyers, attracting local camera crews and colorful coverage.

Lambda Legal’s public education campaign attracted diverse allies. High-recognition performers like Nathan Lane, Bebe Neuwirth, Rosie O’Donnell, and Chita Rivera, as well as the outspoken playwright Tony Kushner, combined with medical experts to focus the spotlight. Many sports groups, including the San Francisco Fog rugby team—which pointed out that it did not exclude people with HIV even while boasting of rugby’s bloodiness—embodied the standards used by groups such as the World Health Organization, the U.S. Olympics Committee, the National Basketball Association, and even the American Academy of Pediatrics’ sports medicine specialists. All agreed that no medical or scientific basis existed to bar HIV-positive athletes from competition, or even to require HIV testing. During the hundreds of thousands of high-contact sports contests played since HIV first emerged, there has never been a single documented case of HIV transmission.

Lambda’s allies helped drive its points home, especially when Cirque du Soleil began suggesting it could justify firing Cusick as protection not only for fellow performers but for members of Cirque’s audience! The presence of allied performers and athletes helped strengthen Lambda’s case by furnishing analogous workplaces that countered efforts to “exceptionalize” Cirque as a one-of-a-kind employer that might deserve some sort of specialized standard. These allies were particularly motivated by Cusick and Lambda Legal’s clear stance that they sought policy change that would help all HIV-positive employees rather than financial compensation alone.

Finally, Lambda Legal and Cusick found allies in local governments with strong antidiscrimination ordinances. San Francisco’s Human Rights Commission, after learning of the EEOC filing, brought its own complaint because the city bans contracts (such as land leases) with discriminatory employers. Had the case continued, Lambda would have investigated the triggers for antidiscrimination ordinances in other cities hosting Cirque. Advocates should more routinely explore these types of provisions in cases opposing employers who hold or seek government contracts.

The power of openness was crucial to success. Cusick’s refusal to file as a “John Doe” and his willingness to face reporters helped obtain critical media coverage for the case. His disclosures were painful, of course. Friends and family who had not known of his HIV status found out via newspapers and the Internet. Ultimately, however, Cusick reaped such emotional support from those who learned of his story that he deemed it well worth the risk. In a similar vein, working toward a public settlement allowed Cusick’s case to have far greater force than a “gagged” settlement would have had. Cusick came to Lambda Legal in part because the organization strives for an impact that extends beyond the individual target of discrimination, even while it advocates vigorously for that person. Because Lambda reached a public settlement with Cirque du Soleil, it set public (if not court-sanctioned) precedent. The dollar figures alone, widely reported in the popular press and verdict reporters, caused employers and defense attorneys to take notice.

The Price of Intolerance

The considerable front pay award in Cusick’s case warrants mention. Late in the case, many months after Cirque fired Cusick, the company announced that it would reinstate him. Ultimately, Cusick did not accept this reinstatement, in part due to continuing hostility from Cirque leadership. Arguably, his decision could have raised a legal issue of whether Cirque’s offer mitigated its damages. According to the U.S. Supreme Court, however, “In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of discrimination, courts have ordered front pay as a substitute for reinstatement.” ( Pollard v. E.I. du Pont de Nemours, 121 S. Ct. 1946, 1948 (2001).) Rightly, Cusick’s well-considered and painful decision to reject the late-breaking offer of reinstatement did not affect his case’s success.

As a settlement, the Cirque resolution did not include a punitive damages figure. However, Cirque’s actions, coupled with lack of support for its conclusions regarding the HIV transmission risk, contributed to allegations of heavy liability. Months into the case, a Cirque spokesperson made public statements such as, “We believe that twenty years of experience in this area are enough for us to determine risk.”

Not so. The twenty-first century should be an age of enlightenment when it comes to HIV in the workplace. Employers must incorporate medical and scientific information into their operations rather than relying on fears and assumptions. Self-proclaimed expertise should furnish no shield. Matthew Cusick opened his life to the world to drive that point home.

As published in Human Rights, Fall 2004, Vol. 31, No. 4, p.16-19.

Hayley Gorenberg

Hayley Gorenberg is the deputy legal director of Lambda Legal Defense and Education Fund. She is a past chair of the Special Committee on AIDS of the Association of the Bar of the City of New York.