Cirque du Soleil, Inc. has agreed to pay $600,000 to a performer who was fired for being HIV-positive, according to the U.S. Equal Employment Opportunity Commission.

Montreal-based Cirque du Soleil is an international circus and entertainment troupe with 2,700 employees worldwide.

EEOC reached the voluntary resolution with Cirque du Soleil through the agency's conciliation process after investigating a charge of discrimination filed by Matthew Cusick, who worked as an aerial gymnast, and finding "reasonable cause" that the company violated the Americans with Disabilities Act.

The negotiated settlement also requires Cirque du Soleil to appoint an equal employment opportunity officer to oversee the annual training of its employees on the laws enforced by the EEOC, with an emphasis on HIV/disability discrimination, and to post a notice in its workplace about the resolution of the case.

Under the terms of the agreement, Cusick will receive $300,000 in compensatory damages, the maximum allowed for an individual under the ADA; $200,000 in front pay; $60,000 in lost wages; and $40,000 in attorneys' fees. Cusick was privately represented by the Lambda Legal Defense & Education Fund, a national gay and lesbian legal advocacy group.

At the tiime of the firing, the circus said it fired Cusick over concerns about the safety of other performers and the risks of transmission if he were injured while performing.

"Unfortunately, employers continue to have difficulty in recognizing what constitutes a 'direct threat' under the ADA, despite the fact that fourteen years have passed since the law was enacted," says Olophius Perry, director of EEOC's Los Angeles district office, which investigated the case and negotiated the voluntary settlement. "Employers must ensure that employment decisions are not based on myths or stereotypes, but rather, on reasonable medical judgments based on current medical knowledge."

ADA prohibits an employer from discharging any qualified individual with a disability, including an individual who has or is perceived to have HIV or AIDS.

EEOC regulations permit an employer to require that an individual not pose a "direct threat" to the health and safety of the individual or others in the workplace (29 CFR 1630.2(r); (Chevron USA Inc. v. Echazabal, 122 S.Ct. 2045 (2002)).

EEOC's regulations state: "Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a 'direct threat' shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence."

In publicizing this case, Cirque du Soleil agreed to waive the EEOC's statutory confidentiality provisions which hold that the agency is strictly prohibited from confirming or denying the existence of charge filings, investigative findings, or resolutions unless or until the commission files litigation against an employer.

In February, the company offered Cusick reinstatement to his job.

"We thought we could demonstrate that there's a high risk of incidents and injuries in that job," company spokesperson Renee Claude Menard tells Bloomberg News. "What we did not know were that the risks of transmission, even with a high risk of injury, were so, so small that we shouldn't be worrying about it."

Link

• Bloomberg News article