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"What if you cut yourself? What if our customers find out?"
These were the questions allegedly asked by a supervisor at a Subway franchise in Sheridan, Indiana earlier this year when one of her "sandwich artist" employees disclosed, a week after being hired, that he was HIV-positive.
One month later—after both his supervisor and her district manager concluded that the man's HIV status could be a liability for the company—the employee was fired from his job.
Nancy Edmonds, an attorney at the Equal Employment Opportunity Commission (EEOC), told an Indianapolis TV station in October that management had apparently decided to let the man go due to "a stereotype that people who are in the restaurant business are contagious and that people can contract HIV through food."
The EEOC is now representing the the man, identified as John Doe in court documents, in a federal lawsuit against Subway. The EEOC claims that Doe, who is suing for back pay and punitive damages, was fired in violation of the Americans with Disabilities Act (ADA), which protects individuals with disabilities from employment discrimination.
Speaking to MUNCHIES, Edmonds noted that while the ADA doesn't specifically mention HIV, it does hold that "employers cannot take adverse action based upon disability."
"As far as the ADA goes, it's an individualized inquiry," Edmonds said. "In other words, if an employer says, 'We terminated the person because they're a risk,' the question is whether they're a risk or not. And the standard in the ADA is a 'direct threat.'"
The EEOC's guide to ADA compliance for the food industry clearly lays this out. One example it gives of a "direct threat" is a pizza delivery driver who has a medical condition that causes him to fall asleep without warning. An HIV-positive sandwich-maker, even if he weren't in treatment, does not constitute such a threat.
In 1985, New York magazine asked, 'What if the cook in your favorite restaurant has AIDS?'
Beyond that, the ADA requires the US Secretary of Health and Human Services to prepare an annual list of infectious diseases that can be transmitted through food handling—and HIV is not among them.
But more than 30 years since the HIV/AIDS outbreak, shouldn't this be common knowledge?
Even back in 1985, only four years after the discovery of AIDS in the US, New York magazine asked, "What happens if the patient before you at the dentist's office is an AIDS victim? Can the disease be spread through acupuncture needles? Is getting a manicure now a hazardous activity? What if the cook in your favorite restaurant has AIDS?" It reassured its readership—presumably white and heterosexual, a.k.a. not the demographic that AIDS impacts the most—that fears of this sort are "basically unwarranted."
A 1992 poll by National Health Interview Surveys found that only half of US adults knew that contracting the virus is "very unlikely or impossible from eating in a restaurant where the cook is infected with HIV." At the time—barely a decade after the media stopped calling AIDS "gay cancer" and "the gay plague"—the academic journal Family Planning Perspectives said that these survey results demonstrated "that American adults' knowledge about AIDS and HIV infection is relatively high."
Yet more than 20 years later, we haven't come much further, and what America still doesn't know about HIV is staggering. A 2014 poll conducted by The Henry J. Kaiser Family Foundation found that 49 percent of the general public did not believe that an HIV-positive person receiving consistent antiretroviral treatment has a significantly reduced risk of passing the virus to partner; a full 58 percent were not aware that prophylactic medications like Truvada (PrEP) exist, and that they are highly effective in lowering a person's risk of contracting HIV. Perhaps unsurprisingly, more than a third of respondents said that they had never been tested for HIV.
Esteemed sex researchers Masters and Johnson once argued that it was, in fact, theoretically possible to contract HIV from kissing, toilet seats, and salad prepared by an HIV-positive individual.
But why? How could Subway supervisors and Joe Sixpack alike still have so little understanding about how HIV is transmitted, prevented, and treated in a post-ACT UP age?
You could blame a legacy of misinformation perpetuated by both the media and even members of the medical community in the late 80s and early 90s. Opendra Narayan, a Johns Hopkins Medical School professor who studied animal models of HIV, infamously mischaracterized gay men to the BBC as little but disease-breeding perverts with the sexual stamina of a studhorse: "These people have sex 20 to 30 times a night ... A man comes along and goes from anus to anus and in a single night will act as a mosquito transferring infected cells on his penis. When this is practiced for a year, with a man having 3,000 sexual intercourses, one can readily understand this massive epidemic that is currently upon us."
The sexological establishment itself even gave credence to this fear-based thinking. In the now-maligned Crisis: Heterosexual Behavior in the Age of AIDS (1988), the esteemed sex researchers Masters and Johnson argued that it was, in fact, theoretically possible to contract HIV from kissing, toilet seats, and salad prepared by an HIV-positive individual.
More than a quarter of a decade later, these myths have been weakened but still persist. John Doe v. Subway is hardly alone.
In 2012, Christopher Peña was fired from his job of seven years at Burger King shortly after disclosing his HIV-positive status. While the company claimed that he was let go for performance issues, Peña says that he only received disciplinary action after revealing his status.
"It was a very personal decision that I thought about before I did it," Peña told the Huffington Post at the time about his decision to open up about his HIV to his employer. "I was looking more for guidance and support, and that's why I did it."
In a similar case from 2012, Reymundo Martinez sued LA hotspot The Ivy for terminating him due to his HIV status, even though his doctor confirmed that Martinez was able to perform his job despite his medical condition.
Of course, these kinds of cases are hardly limited to the restaurant industry. The EEOC is also currently representing two former employees of Zoo Printing, who say that they were fired from the company after disclosing their HIV status. The Center for HIV Law and Policy lists dozens more employment discrimination suits from the last few years alone.
The simple fact is that HIV continues to be stigmatized and even criminalized in the US. Not disclosing one's HIV status to a partner is still considered a crime in some states. In 2009, an HIV-positive man in Michigan was charged under the state's anti-terrorism law after allegedly biting his neighbor during a dispute. Most recently, the Charlie Sheen saga has resurrected the belief that people living with HIV possess a "deadly weapon" or that they are, at the very least, selfish and negligent. (Meanwhile, as the Positive Justice Project points out, no one has ever been prosecuted for knowingly transmitting the cancer-causing human papillomavirus, or HPV.)
And yet fears about HIV in the US are more overblown than they've ever been. Years of research have confirmed that—even without using any prevention methods—the average transmission risk for HIV is one time out of 100 per single sexual contact. We also know, and have long known, that HIV is not transmitted through saliva, urine, vomit, or feces. You cannot, in fact, get AIDS from a salad.
In the world of food, we'd do well to remember that the greatest risk of getting sick at a restaurant is from pathogens like salmonella and E. coli, not HIV.