FEDweek

HIV-Positive Applicant Entitled to Jury Trial

On June 27, 2006, the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Rice, United States Secretary of State, No. 05-5257, reversed the district court’s decision that the State Department did not violate the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796, when it refused to hire the Appellant as a Foreign Service Officer because he is HIV-positive. The D.C. Circuit remanded the case for further proceedings.

The Foreign Service requires candidates to pass security, medical, and overall suitability reviews to be hired. To successfully complete the medical review, candidates must obtain a Class 1 medical clearance which are “[i]ssued to examinees who have no identifiable medical conditions that would limit assignment abroad.” The State Department considers HIV positive individuals ineligible for a Class 1 medical clearance because it is “the State Department’s belief that HIV-positive Foreign Service Officers can safely be stationed only at overseas posts that have both a physician with experience treating HIV-positive patients and laboratories comparable to U.S. domestic standards, capable of performing testing to monitor the virus’s course.”

When the Appellant reported to the State Department Medical Office he was given a one-page document entitled “HIV TESTING INFORMATION,” which stated “those who are HIV positive will not be eligible for employment.” He voluntarily revealed his HIV-positive status which he described as “a chronic manageable condition” that “requires only periodic monitoring and the use of anti-retroviral medication, not constant medical attention.” The State Department then notified the Appellant that he would not be hired.

The district court granted the State Department’s motion for summary judgment, concluding: 1) “reasonable worldwide availability” is an essential function of the Foreign Service; 2) Taylor is not capable of fulfilling that function; and 3) the risk to Taylor’s health could not be reduced by any reasonable accommodation without also imposing undue hardship on the State Department. Taylor accused the Secretary of violating the Rehabilitation Act, the “basic tenet” of which “is that the Government must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result,” Barth v. Gelb, 2 F.3d 1180, 1183 (D.C.Cir.1993). He argued his proposed accommodations are reasonable and would not impose undue hardship on the State Department. The two accommodations he proposed were: 1) grant him Class II clearance and place him at a post where he can access local HIV physicians and diagnostic laboratories, or 2) permit him to use his allotted leave time to access routine medical care while posted abroad.

Concerning Appellant’s first proposed accommodation, the D.C. Circuit stated, “the question is to what extent Foreign Service Officers must be available to serve at overseas Foreign Service posts. In particular, must officers be able to serve at nearly “100 percent” of overseas posts, as the Secretary claims, or only at a “substantial number” of overseas posts, as Taylor claims?” The Court found evidence that, in practice, the Secretary does not require every Foreign Service Officer to be available to serve everywhere in the world – including that 12 candidates were hired with Class 2 medical clearances because of their asthma and testimony from Ambassador A. Peter Burleigh, who spent more than 30 years as a Foreign Service Officer, that “[a]t any given time … between one-quarter and one-third of in-service [Foreign Service Officers] … are not available for worldwide assignment” for a variety of reasons. The Court, therefore, concluded there was a genuine issue of material fact regarding the extent to which Foreign Service Officers must be available to serve in overseas posts, and for this reason, the Secretary was not entitled to summary judgment.

As to Taylor’s second proposed accommodation, permitting him to use his allotted leave, the district court concluded it was unreasonable, but the D.C. Circuit reversed. The Court found convincing Taylor’s doctor’s testimony that Taylor’s immune system is strong enough to enable him to serve throughout the world without increased risk of harm and that he needs medical monitoring only twice a year. Further, Taylor’s evidence showed that every Foreign Service post is within one day’s travel of a city with adequate HIV medical care and that his medical visits would involve examinations typically lasting but 30 minutes. The court found that this evidence is more than enough to create a genuine issue of material fact regarding the reasonableness of the proposed accommodation.

Now that this case has been returned the district court, Taylor will be able to present his case in front of a jury for a decision on whether the State Department’s practice was discriminatory.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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