The city of Atlanta argued during litigation that it did not consider HIV a reason to not hire someone as a police officer and that the city had no policy against hiring people with HIV. But by calling Roe a “direct threat” in the lower court, the city did indeed discriminate based on his HIV status, alleges Lambda Legal.

Lambda Legal is representing Roe in his appeal to attempt to make the burden fall on the city — the defendant — rather than on the plaintiff when trying to prove someone cannot hold a job due to his or her HIV status.

“Because the 11th Circuit places the burden on the plaintiff, he got caught in a Catch 22,” said Scott Schoettes, Lambda Legal’s HIV Project Director. “Roe gathered a lot of reasons why he was not a direct threat. A great injustice was done to Richard Roe.”

The plaintiff applied to be an Atlanta police officer in 2006. According to Lambda Legal, during a pre-employment medical exam the APD learned Roe is HIV-positive and he was told by the doctor who examined him that his status disqualified him from being an Atlanta police officer.

When Roe was not hired, he filed suit in the U.S. District Court for Northern Georgia against the city of Atlanta, accusing the city of “discrimination based on federal and state law as well as for violating the American with Disabilities Act and the federal Rehabilitation Act.”

“We want to change of city of Atlanta’s way of thinking … bring them into the current millennium,” Schoettes added. “We want to make it clear the city cannot discriminate and act on it. Then, in terms of the law, we really would like to see the 11th circuit change the place burden. Most other circuits place burden on the employer.”

City denies HIV discrimination

Reese McCranie, deputy spokesperson for Mayor Kasim Reed, asserts the man’s HIV status was not the reason he was passed over for employment.

“At the time his application was rejected the city didn’t know his HIV status, therefore it had nothing to do with our decision to suspend his application. And the reason his application was rejected was because he had not kept in communication with APD, which is standard protocol for applicants,” McCranie said.

Greg Nevins, supervising senior staff attorney at Lambda Legal’s Southern Regional Office in Atlanta, said the city is talking out of “both sides of its mouth.”

“They claim that having HIV doesn’t prevent someone from becoming a police officer; then they walk into court and say that it does,” he said.

“We came into the case at the appeals stage. Now the city is armed with a trial court decision in their favor. It’s inexplicable. They basically admitted to liability by calling him a ‘direct threat,’” Nevins said.

“The law is just very messed up in the 11th Circuit and sends the wrong message and helps perpetuate a climate of fear … contrary to what the Americans with Disabilities Act was supposed to take care of. This reflects a bad approach to the situation,” Nevins added.

By arguing theoretical risks that an HIV positive police officer poses a “direct threat” to the general public, the city is also guilty of backwards thinking, Nevins said.

“One thing that did not happen here is that there was nothing looked into besides his HIV status. The problem with the law in this circuit is it characterizes that a theoretical possibility [of contracting HIV] is a sufficient risk under the ADA. The problems with both components of that equation is HIV is no longer inevitably resulting in death,” Nevins said.

Theoretical possibilities are also outdated, Nevins said, because they allow for such ideas that HIV can be spread casually — which science has proven is not true.

“There’s a theoretical risk of everything,” Nevins said. “The law is just very messed up in the 11th Circuit and sends the wrong message and helps perpetuate a climate of fear even more so now when people with HIV are living full life spans.”

 

Top photo: Greg Nevins, supervising senior staff attorney at Lambda Legal’s Southern Regional Office in Atlanta, says the city is talking out of ‘both sides if its mouth’ when it claims it doesn’t discriminate based on HIV status but called an HIV-positive police applicant a ‘direct threat’ to the public. (Courtesy photo)

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