Appeals court reinstates Foreign Service HIV suit

By Ann Rostow Contributing Writer

Rejected job candidate continues his challenge of agency’s policy banning HIV-positive recruits



Lorenzo Taylor

The U.S. Court of Appeals for the District of Columbia has reinstated an HIV discrimination lawsuit against the Foreign Service, challenging the Service’s effective ban on HIV-positive recruits. Although the Service allows officers who sero-convert to remain on duty, it does not accept new candidates with the virus, not even those in excellent health.

Lorenzo Taylor was such a candidate. HIV-positive since 1985, Taylor had never had a symptom. His condition was treated with medication, and he was monitored by a doctor two or three times a year.

Taylor also came to the Foreign Service with impressive credentials. Fluent in French and Spanish, Taylor had earned a degree in from Georgetown University’s School of Foreign Service and a masters in public health. The 45-year-old candidate had also spent a decade overseas as a contracting interpreter for the State Department, and in 2001 when he applied, Taylor was administering government HIV and AIDS grants.

After passing the oral and written entrance exams with ease, Taylor was offered a job. Once doctors learned he was HIV-positive, however, the job offer was revoked.

Foreign Service rules require that all entering staff be immediately available for worldwide posting. Yet the Service also refuses to send HIV-positive staff to posts that lack complete medical facilities, including labs, for treating the virus and its complications.

Taylor asked for a waiver. Of the Foreign Service’s 263 overseas posts, roughly 178 had easy access to full medical facilities. Alternatively, Taylor suggested he could use his own sick leave and vacation time to travel to a doctor. Taylor’s own doctor confirmed that twice yearly visits would suffice to monitor his HIV status.

The Service rejected his request, and Taylor sued in federal court.

Last April, U.S. District Court Judge Rosemary Collyer granted summary judgment to the government, ruling as a matter of law that the service would be unduly burdened by an obligation to make case-by-case exceptions to its policies. Represented by Lambda Legal Defense, Taylor appealed to the federal appellate court, where Tuesday a unanimous three-judge panel reversed the lower court.

Essentially, the panel ruled that Judge Collyer had breezed over several issues of material fact, which by law must be assessed by a trial court. Summary judgment is reserved for situations where there is no dispute on the facts of a case, and where the matter may be resolved on legal issues alone.

In Taylor’s case, Lambda argued that the actions of the Foreign Service violated the Federal Rehabilitation Act of 1973, a precursor of the Americans With Disabilities Act.

The Rehabilitation Act, as the appellate court wrote, “requires federal employers to take “‘affirmative action’ when making “‘hiring, placement, and advancement’ decisions regarding “‘individuals with disabilities.’” Carrying HIV is considered a disability under both the Rehabilitation Act and the ADA.
An agency can avoid the act by proving that accommodating an employee would pose a danger to his or her own health and safety. Or by demonstrating that such an accommodation would “impose undue hardship on the operation of its business.”

The Foreign Service used both approaches to the satisfaction of the lower court.

In doing so, the lower court never questioned whether the ability to serve in every single worldwide station was an “essential feature of the job” as the law requires, the appellate panel ruled.

As for the proposal that Taylor use his own free time to travel to a doctor, the Foreign Service testified that these trips could take Taylor away from his duties for six to ten days at a time, and cost the government a tidy sum each time

But Taylor’s side insisted that even the most remote stations are within one day’s travel of medical facilities. Further, his appointments take roughly half and hour. Taylor noted that he never asked for these trips to be subsidized by the government.

Given the number of unresolved disputes in the case, the panel sent the case back to the lower court for a jury trial on the facts. In a statement, Lambda’s HIV Project Director, Jon Givner, said he was “pleased that the Court sees through the faulty reasoning used by the State Department to substantiate this discriminatory and baseless policy.”

This article appeared in the Dallas Voice print edition, June 30, 2006.

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