And so, right now, he's waiting. Just waiting. Back in his hometown of Milford, Indiana, where he's now 43 and a night auditor at an easygoing inn. Waiting for Donna Curry, his former employer in Las Vegas and the woman he claims fired him from his job as a Subway manager because he has HIV, to respond to the complaint of workplace discrimination his legal team filed against her in the U.S. District Court on February 2.
One year before, to the day, Robert Hickman had believed that his career with the country's most prolific sandwich shop was going to be a long and fulfilling one. His store near Rhodes Ranch was being recognized for its record sales, and he was being applauded once again by his supervisors for exceeding the expectations of his job, just three months in.
Moreover, on the following day—February 3, 2005—his benefits were scheduled to kick in. The only thing left was to fill out an application for employer-based health insurance, which he did to completion and in utter honesty, even when the questionnaire asked if he had any chronic conditions, such as HIV.
Yes, he answered. Yes I do have the human immunodeficiency virus which leads to AIDS.
It was an answer he had learned to accept as another one of life's many obstacles to endure, ever since a doctor in Los Angeles delivered him the heart-stopping news nine years earlier—news to which he reacted with the most natural rhetorical response:
"I have HIV?"
It was an answer he carried with him when he came to Las Vegas in October of 2004, a bachelor looking for a new start in a city defined by its restaurants and hotels, the only two industries Hickman has known for the past 20 years. And it was an answer he carried with him with a clear conscience when he accepted a manager's position at Donna Curry's Southern Highlands Subway on November 3, 2004, for not only was he aware that scientific facts and current medical knowledge showed no evidence of HIV being transmissible through food, but the illness itself had etched into him, for reasons of survival, an anal retentive temperament, meticulous with details and paranoid about cleanliness.
In reality, Hickman had come to such strong grips with his illness that his only prevailing fear was the uncertainty of how others would respond to it. He wanted to be treated with neither pity nor prejudice, but just like any other hard-working man. For that's exactly what he was, say his former supervisors and coworkers. He assumed his occupational responsibilities—managing food preparation, maintaining a sanitized and orderly store, and training and supervising his staff—so well that Curry transferred him twice to other Subway locations in need of effective management. No one, in the least, could detect the virus through his work performance.
But he volunteered to his direct supervisor and Curry his affirmative answer to that private question on February 3, after filling out the insurance application. He met with them in closed quarters and asked, "Do you think I'll still get the insurance, even though I have HIV?" Both ingested the striking news without wincing, Hickman says, and in the end Curry told him that he probably would not get it, but should try anyway.
The very next day—February 4—Hickman was called into Curry's office, and with the same straight face as the day before she told him his employment with Subway was being terminated. According to Hickman, she cited the high danger his HIV presented to both coworkers and customers as the sole reason for his termination.
Astounded, Hickman filed charges of discrimination with the U.S. Equal Employment Opportunity Commission, which after investigating the matter decided that there was neither possibility of conciliation between Hickman and Curry nor reason enough for the commission to pursue civil action against the employer, and therefore issued Hickman with a "right to sue" notice in November of that year.
And that's exactly what Hickman sought to do. He summoned the help of Lambda Legal, a national organization based in New York and recognized for its campaign to end workplace discrimination against gays, lesbians, bisexuals, transsexuals, and individuals suffering from HIV or AIDS, and they wasted no time assigning the case to Jen Sinton, a staff attorney working on Lambda's HIV Project who at first glance recognized the historical significance of the case.
The food industry is enormous in this country, she says, and the facts supplied by the Federal Center for Disease Control and Prevention, as well as the Food and Drug Administration, state that HIV-infected people pose no danger to it, for the incurable virus which can be transmitted through only four mediums—sex, needles, infected mothers and blood transfusions—is not communicable through food. And thus, if people suffering from HIV have their right to work in such a large industry taken away—due to fears and biases derived not from science and medicine, but rather, ignorance and prejudices—their opportunity to make a living, and thus sustain their health, will be severely limited.
Plus, Sinton says, there is not much precedent in this exact arena. While thousands of individuals with HIV have filed charges of workplace discrimination over the past 15 years, few have come from within the food industry, where many myths and stereotypes regarding HIV abound. And even fewer have gone to court, to be tried before a jury—which is exactly what Hickman and Lambda Legal have requested.
Sinton believes the law in regard to this matter is clear and adamant, and on their side. Title I of the Americans with Disabilities Act of 1990 states that an employer cannot prohibit a disabled individual who can still perform the essential functions of his job from working unless he poses a direct threat to his environment—and it is the burden of the employer to remain abreast with current medical knowledge concerning viral dangers. And further, section 613.330 of the Nevada Revised Statutes reiterates this federal law.
Sinton expounded this in the complaint filed in the Las Vegas Division of the U.S. District Court on February 2, 2006, against Donna Curry and the company over which she presides, Donna Curry Investments, as well as Subway's mother franchisor, Doctor's Associates, for which Curry is an agent. They are seeking for Hickman past lost wages and benefits, as well as compensation for the severe distress he says the entire ordeal has caused him.
Curry has maintained an invincible silence from the beginning.
And so now Hickman and his attorney must wait to see if the defendants, whom have yet to be given a timetable to respond, wish to settle out of court, or battle before a jury. Either way, Hickman intends to keep on working in restaurants and hotels, and hopefully, once again in Las Vegas, he says.