Employment lawyers indicate possible discrimination with a new virus

While scientists are still learning how the monkeypox virus is transmitted, some employment lawyers are raising a warning about the potential for discrimination and harassment claims stemming from the virus’s link to gay and bisexual men.

Those employment lawyers say they haven’t given much thought to monkeypox, but others see the potential that fear of the virus will prompt an uptick in anti-gay harassment and discrimination. They see parallels to the ostracism that gay men faced in the early days of the AIDS epidemic and the harassment directed at Asian Americans during COVID-19.

Although scientists say anyone can contract monkeypox, the recent outbreak has been concentrated among men who have sex with other men.

In a study in the New England Journal of Medicine on July 21 that examined monkeypox infections in 16 countries, 98% of those infected were gay and bisexual men.

Researchers are studying whether monkeypox can be spread by bodily fluids during sex, the Centers for Disease Control and Prevention said. The virus can be spread by respiratory secretions, contact with the clothing or bedding of someone with monkeypox or direct contact with bodily lesions on an infected person, the CDC said.

In New Jersey, an employee who experiences monkeypox-related harassment from supervisors or co-workers based on their actual or perceived sexual orientation could have a claim against his employer under the Law Against Discrimination, said Julie Levinson Werner, who practices employment litigation and counseling at Lowenstein Sandler.

“I would worry about it from a bias standpoint. It could result in discrimination if people are making assumptions that may not be supported. You always have to worry about people making stereotypes or assumptions,” Werner said.

At the University of Texas at Dallas, students are up in arms over tweets by computer science professor Timothy Farage that students said was homophobic and spread false information about monkeypox, according to media accounts.

Farage’s tweets wrongly said the virus is spread through sexual transmission, and he called for scientists to find a cure for homosexuality, according to published reports, which said the university is investigating the incident.

The CDC has recorded 4,639 cases of monkeypox nationwide as of July 27, and the U.S. has not reported any deaths from the virus. That’s miniscule compared with the 90 million infections and 1.03 million deaths from COVID-19 in the U.S.

Werner spends much of her time counseling human resources directors, and they haven’t paid much attention to monkeypox so far, she said. But if the outbreak intensifies, HR people are likely to have to rapidly get up to speed on the issue, as they did when COVID-19 led to widespread lockdowns in March 2020, she said. As for monkeypox, “it probably starts when they hear an employee got sick, or there’s a rumor that somebody has it, and all of a sudden, HR says, ‘Oh my gosh, what do I do,’ and they have to learn and become medical experts on these things.”

Werner said her HR clients should familiarize themselves with monkeypox so that “they’re familiar and understanding of what they need to do to address the situation” if an employee is infected.

Legal protections vary depending on the circumstances for individuals with monkeypox and for men who suffer discrimination based on their actual or perceived sexual orientation and its link to the disease, said Robyn Gigl, an employment lawyer at GluckWalrath and a board member at Garden State Equality, a statewide LGBTQ+ advocacy group.

She offers the example of a man who enters a restaurant but is denied service because the management perceives him to be someone who has sex with other men and therefore might be infected with monkeypox. In that situation, New Jersey’s Law Against Discrimination would provide a cause of action, Gigl said.

Gigl also offers the example of a cisgender woman who becomes infected with monkeypox, informs her boss that she needs to take several weeks off from work, and is fired. There, the legal protection of the LAD is unclear, because monkeypox typically clears up after a few weeks, unlike HIV, which usually remains a lifelong concern, said Gigl.

“She’s not a man who has sex with men. Is that a claim under the LAD? I’m saying that’s a gray area,” Gigl said.

People with COVID-19 in New Jersey are covered by a statute enacted during the pandemic that protected them from workplace discrimination, but no such law exists for monkeypox, Gigl said.

Katherine Dudley Helms, an employment lawyer at Ogletree, Deakins, Nash, Smoak & Stewart in Columbia, South Carolina, said she and her colleagues have been getting calls from clients about monkeypox. Clients are asking hypothetical questions as well as seeking help with real-life problems that have arisen.

Among the questions is whether a hospital is engaging in age discrimination if they assign older workers to care for monkeypox patients. Older workers are more likely to have had a smallpox vaccine, which provides protection from monkeypox, but has not been routinely administered since 1972. Helms said she doesn’t think putting older workers in charge of caring for monkeypox patients is age discrimination.

Helms said the correlation between monkeypox and men who have sex with men makes questions of workplace harassment by co-workers, supervisors and managers a valid concern. She said employers can alleviate that fear by reminding their workforce about corporate anti-harassment policies and making it clear that harassing a co-worker will have consequences. She also encourages employers to make information available so employees can understand monkeypox.

Health care employers are likely to be among the most vulnerable to monkeypox-related suits because of the hazards of caring for people with the virus. So are employers that don’t follow Occupational Safety and Health Administration guidelines on keeping employees safe, Helms said.

Another potential sticking point is how much leave time employers give out to workers with monkeypox. The disease might not warrant as much leave as COVID-19 but the pandemic might have given employees high expectations for time off, Helms said.

“Employers might not be as generous with time off as they were during COVID,” Helms said. “I’m not sure monkeypox is going to require that. It’s going to be interesting.”