A man may get to argue in court that the Atlanta Police Department rejected his application to join the force only because he has HIV.
“How can we not remand this” back to the federal trial court? Judge J.L. Edmondson of the 11th U.S. Circuit Court of Appeals said Wednesday after hearing from attorneys for less than 45 minutes.
A 40-year-old man using the pseudonym Richard Roe is asking the federal appeals court to order a hearing on his lawsuit that was filed in 2008 against the city of Atlanta. Roe also sued a doctor who did his pre-employment health screening and determined that it was too risky to allow Roe to hold a position that involved contact with the public.
Roe, who also sued the company that employed the physician, lost his case without a trial when a trial judge ruled in favor of the city's lawyers who argued Roe had no claim.
In 2006, Roe moved to Atlanta from Los Angeles, where he was an investigator, and eventually took a position in the taxicab division of the Atlanta Police Department. Roe, who had been living with HIV since 1997, later applied to be a police officer and had passed several stages of the hiring process -- a written test, a psychological exam, a computerized voice stress analysis test and a background check.
His medical condition was discovered after a contract doctor drew his blood as part of a pre-employment physical exam.
The doctor, Alton Greene, told Roe on Sept. 7, 2006, that he would be advising the city that, because of "Roe's HIV, Roe could not be employed in a position in which he had any contact with the public." Greene told the city that Roe had "failed" his medical exam.
After that, Roe had no more contact with the APD recruiter who had been leading him through the process, according to court filings.
Roe filed suit two years later.
Roe’s lawyers said the APD violated the Americans With Disabilities Act by giving him the physical before he had been extended a job offer. They also noted that Roe was not told that his blood would be tested for HIV.
The city won the case at the trial court in 2010 when U.S. District Judge Marvin Shoob ruled Roe had not proved that there was not significant risk of transferring the virus that causes AIDS. Shoob dismissed the case based only on written filings and did not hold a trial.
“Mr. Roe ... came here and took a job in the police bureau,” said Robert Godfrey of the city's Law Department. “He knew at that point in time of his HIV status and he chose not to reveal that. ... Doctors had approved [his employment] with limited public contact. HIV is not a disqualifying factor per se.”
Roe’s attorney, Scott Schoettes, said the city's decision was made based only on the one blood test and there was no follow-up to determine whether Roe’s HIV status did, in fact, pose a danger to the public.
Schoettes, an attorney with the gay rights group Lambda Legal, said the medical report included “no mention of his ability to pass an agility test or high blood pressure or diabetes.”
Schoettes said the decision reflected the unfounded belief by some that HIV affects job performance and is easily transmitted.
Said Schoettes: “I really see an opportunity for the city of Atlanta to make some drastic changes and move forward.”
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