A court of appeals has reversed and remanded a lower court’s ruling that the State Department did not violate the Rehabilitation Act of 1973 when it refused to hire an HIV-positive candidate for medical reasons.
A district court had granted the agency’s motion for summary judgment, but the U.S. Court of Appeals for the District of Columbia Circuit said the case still presents the question whether an otherwise qualified individual with HIV would pose a direct threat to himself if employed as a foreign service officer, which requires officers to be “available to serve in assignments throughout the world,” according to decision No. 05-5257.
It said that after passing the written and oral exams for the position, the candidate revealed his condition to an agency physician — describing it as “a chronic manageable condition” that “requires only periodic monitoring and the use of anti-retroviral medication, not constant medical attention” — and after the department denied him the position he sued.
When he sent a letter to the agency complaining that its hiring policy unfairly discriminated against people with HIV, the director general of the Foreign Service stated that he had also been denied employment because of his “asthma,” which presented a secondary and new justification for the agency’s decision.
The district court ruled for State on the grounds that “reasonable worldwide availability” is an essential function of the Foreign Service and that the candidate could not fulfill that function without posing a threat to himself.
The court also stated that no alternative working arrangements existed that would not impose undue hardship on the agency.
He had proposed two, one being a class II clearance which would place him in a post where he would have access to local HIV physicians and diagnostic labs, and another arrangement where he would be allowed to use leave time to access medical care.
The district court found both unreasonable because they require the agency “to waive an essential function of the job,” however, the appeals court cited issues of material fact that led it to reverse the lower court’s finding.
Further, the district court did not evaluate the agency’s other argument regarding the candidate’s pulmonary condition.
