Technician holding tube of blood for testing in the research laboratory.

Fighting Diagnostic Discrimination and Stigma in Monkeypox

By Katie Gu

History recently repeated itself when technicians from two major laboratories refused to accept blood samples from patients testing for monkeypox. 

This August, the U.S. saw the largest increase in monkeypox cases in the world. In the midst of a nearly 80% increase in U.S. cases, phlebotomists from Labcorp and Quest Diagnostics reportedly turned away potential monkeypox samples. Such refusals dangerously parallel instances of diagnostic discrimination against HIV/AIDS patients in the 1980s and 1990s. 

Within both eras, such actions have fueled stigma, propagated misinformation, and encouraged scapegoating in the middle of public health crises. 

Unlike HIV/AIDS, the monkeypox virus is not a sexually transmitted infection (STI). Instead, monkeypox is transmitted through close personal contact, including direct contact with sores, scabs, or body fluids of an infected person. Treating monkeypox as an STI may contribute to stigma and hinder containment measures. 

While monkeypox is typically diagnosed using surface swabs of lesions, blood tests are needed to differentiate monkeypox from other possible viral infections. Experts agree that precautions adopted as standards of care following the HIV/AIDS epidemic would prevent phlebotomists and lab technicians from contracting monkeypox from patients. For example, Greg Millet, Vice President at amfAR, the Foundation for AIDS Research, and a former U.S. Centers for Disease Control and Prevention (CDC) Senior Scientist in the Division of HIV/AIDS Prevention, has stated that universal health precautions render diagnostic discrimination arguments moot. 

The Fight Against Medical Discrimination

In CNN’s report on Labcorp and Quest’s phlebotomy discrimination against monkeypox, what remained unclear was “whether the phlebotomists are refusing on their own to take blood or if it is the company policy that prevents them.” However, legal consequences should follow regardless of whether the discrimination stems from the companies’ policy or their employees’ practice. 

Diagnostic discrimination resulting from a company policy would likely violate Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs or activities that receive federal financial assistance. Labcorp and Quest both receive federal funding for research. Their refusals to test patients covered under the ACA for monkeypox, which disproportionately affects men who have sex with men, may violate Section 1557’s nondiscrimination provisions for sexual orientation and gender identity. 

If phlebotomists are instead independently refusing to draw blood from possible monkeypox patients, Labcorp and Quest may still be held liable for medical discrimination. The legal relationship between employees and employers is governed by agency law. Under an agency relationship, an employer can be held responsible for liabilities resulting from its employees’ acts during the scope of their employment. Phlebotomists who refuse potential monkeypox patients would likely implicate their employers.

Lessons from the HIV/AIDS Crisis

Monkeypox continues to spread after the first case in the U.S. associated with the recent global outbreak was detected this May. The outbreak is currently placing significant strain on several sexual health clinics around the country.  

Effective public messaging has always served as a crucial weapon in the battle against medical discrimination and equal health access. Monkeypox affects a community already at heightened risk of stigma due to recent increases in anti-LGBTQ+ rhetoric. Within this context, the role of public messaging is even more crucial. Ineffective communication can lead not only to medical discrimination by doctors, but also lower rates of testing, vaccination, and treatment efforts by patients.  

In responding to the monkeypox outbreak, activists and public officials have adapted lessons learned from the HIV/AIDS crisis. 

CDC Director Rochelle Walensky has emphasized the broader public threat of monkeypox, rather than depicting the disease as affecting specific demographic groups. Activist groups like ACT UP have highlighted the roles of patient-led mobilization, campaigns for research funding, and de-identified data sharing in producing successful HIV/AIDS therapies. States like New Jersey have already provided new public messaging to fight against medical discrimination and bias-based harassment related to monkeypox. For example, the New Jersey Attorney General’s website currently has a page on how to file a Law Against Discrimination complaint with the Division of Civil Rights. 

Collectively, such efforts may help equity and synergistic social responsibility win over medical discrimination, stigma, and respectability politics in the fight against monkeypox.

Thanks to Kevin Costello, Maryanne Tomazic, and Rachel Landauer for their valuable conversations and input.

Katie Gu

Katie Gu is a second-year student at Harvard Law (JD 2024). Her current research examines the interplay between data privacy and reproductive healthcare access. She has previously published articles on synthetic biology regulation and governance, end stage renal disease payment reform, and comparative analyses of learning disorder policy. Currently, she co-leads the Harvard Health Law Society and serves on the editorial board of the Harvard Journal of Law and Technology.

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