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Atlanta PD: HIV-Positive Applicant Threatens Health and Safety

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By Robyn Hagan Cain on September 12, 2011 4:05 PM

Can an employer refuse to hire an applicant because he's HIV-positive?

A 39-year-old Georgia man claims that he was denied employment with the Atlanta Police Department (Atlanta PD) because he is HIV-positive. The man, using the name "Richard Roe" to protect his privacy in the litigation, claims that a doctor who conducted his pre-employment medical exam for the Atlanta PD told him that his HIV status disqualified him from joining the Atlanta PD.

The Atlanta PD did not offer Roe a position after the medical exam, so Roe sued, claiming HIV discrimination under the Americans with Disabilities Act (ADA) and the federal Rehabilitation Act. Atlanta PD prevailed over Roe on summary judgment; now Roe is appealing to the Eleventh Circuit Court of Appeals.

Lambda Legal, representing Roe, says that the City of Atlanta maintained at trial that it had no policy against hiring HIV-positive employees and did not consider HIV to be a disqualifying condition for a police officer. On summary judgment, however, Atlanta argued that Roe could not show that he was qualified to perform the job because an HIV-positive police officer would present a "direct threat" to the health and safety of others.

The district court granted summary judgment because Roe had not provided sufficient evidence to prove that he would not be a direct threat to others as a police officer.

The Department of Justice (DOJ) Disability Rights Section extends ADA protection to HIV and AIDS patients. The DOJ permits an employer to consider an applicant's HIV status in hiring decisions only to exclude applicants who pose a direct threat to the health or safety of others. The employer, however, must make an individualized judgment regarding the applicant's suitability based on reliable medical or other objective evidence.

Lambda Legal is arguing that the Eleventh Circuit Court of Appeals should overrule earlier cases and place the burden on Atlanta PD to show that Richard Roe would present a threat to the health or safety of others, bringing the Eleventh Circuit in line with most of the other Circuit Courts of Appeals.

Atlanta and Miami, both within Eleventh Circuit jurisdiction, are among the top 10 cities with the highest rates of HIV/AIDS infection in the U.S. Do you think the Eleventh Circuit will change course in Roe v. City of Atlanta to place the "direct threat" proof burden on employers? What practical effect would such a change have on HIV discrimination employment practices?

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