Thursday, February 02, 2012

HIV-positive man trounces the APD

Yesterday the Eleventh Circuit Court of Appeals ruled in favor of an HIV-positive man who sued the Atlanta Police Department for refusing to hire him based on his status. The APD doctor who conducted the pre-hire physical told the man – referred to in the lawsuit as Richard Roe – that the APD wouldn’t hire him because he is HIV-positive.  The doctor also advised the APD to prevent Roe from “physical contact or involvement with individuals.”   

Let’s just let that sink in for a moment. It boggles the mind, doesn’t it? A doctor this misinformed to begin with, and then stupid enough to tell the job applicant the true reason for not hiring him?  What a maroon.

So, anyway, Roe sued the APD under the Americans with Disabilities Act, and the APD motioned for summary judgment (a quickie dismissal, basically), saying that Roe hadn’t shown that he wasn’t a direct threat.  (I hate all these double negatives too, folks, but it’s correct because of the burden of proof).

The trial judge bought the APD’s argument, and then added its own garnish to this pile of bullshit. Roe, the court said, hadn’t even shown he was qualified for the job to begin with, apart from any medical issues. The trial court came up with this second issue all by itself, and didn’t bother telling the parties about it beforehand.  The court isn't supposed to do this sort of thing unless it provides notice to the parties. Without such notice, the appeals court noted, Roe felt ambushed.
The appeals court vacated the trial court’s opinion and ordered it to take another look at the case. Noting that the City had no policy against hiring HIV-positive applicants per se, and in fact had some  in its employ, the court said Roe had been “lulled” by the city into believing that his positive status itself is what disqualified him. Accordingly, Roe didn’t introduce evidence showing the trial court that his HIV-status was “non-dangerous.”

So, wait a minute. Roe has to prove he’s non-dangerous? Shouldn’t the burden be on the APD to show that Roe’s condition is dangerous? I mean, I know he’s the plaintiff, so he has the overall burden of proof, but… really?? (Yes, yes, I imagine it has something to do with that whole McDonnell-Douglas-burden-shifting thing. But frankly, it’s my blog, and I don’t care.).

Roe also challenged the validity of the pre-employment physical itself, since federal law requires a conditional job offer before such a medical examination is required. The court of appeals sided with Roe there, too, so he will have the opportunity to present this argument on remand.

It’s an interesting opinion and, of course, I’m pleased with the outcome. But don’t expect it to be a game-changer. The circuit court almost certainly thought the law was well-settled; this is evident by the fact that it issued an unpublished, per curiam opinion.  Unpublished opinions are considered “persuasive” only; they’re not binding on the court in future litigation. In any event,  this case will never appear in one of those big, fancy, expensive books that you see in all those lawyer TV commercials. Hence, proof that the case is not all that important.

Except, of course, to Roe. And anybody who's been discriminated against on the basis of HIV status. And the APD. And pretty much everybody else.
In other words, good news is good news, and any step in the right direction is a welcome thing.

You can read at he opinion here. The Washington Post article is here.


  1. Nice to see you posting again. :-)

  2. What a mess. At least it's moving along positively.