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HIV-positive man denied job as Atlanta police officer files appeal

ATLANTA, Ga. -- Late Wednesday, Lambda Legal completed briefing in its appeal to the Eleventh Circuit Court of Appeals on behalf of a 39-year-old man who applied to be a police officer with the Atlanta Police Department (APD), but was denied employment because of his HIV status.

"There was no good reason to deny our client this opportunity. People living with HIV are serving as police officers all across the country; they are involved in every kind of work and participate in all walks of life," said Scott Schoettes, Lambda Legal's HIV Project Director. "If the promise of equal opportunity contained in the Americans with Disabilities Act is to be fulfilled, employers' misconceptions and outdated policies need to be challenged."

The plaintiff, who is proceeding under the pseudonym "Richard Roe" to protect his privacy, is a 39-year-old Georgia man living with HIV who applied to be a police officer with the APD in early 2006. During a pre-employment medical exam, the APD learned that Roe is HIV-positive, and the doctor informed Roe that his HIV status disqualified him from becoming a police officer with the APD.

When he subsequently wasn't hired, Roe filed suit in the U.S. District Court for the Northern District of Georgia against the City of Atlanta for discrimination based on federal and state law, alleging violations of the Americans with Disabilities Act (ADA) and the federal Rehabilitation Act.

During the litigation, the City of Atlanta maintained that it did not consider HIV to be a disqualifying condition for the position of police officer and that it had no policy against hiring people with HIV. However, on summary judgment, the City reversed course and contended that Roe could not show he was qualified to perform the job, because it believed that a police officer with HIV presents a "direct threat" to the health and safety of others. The City did not support its newfound belief with any evidence. Nonetheless, the District Court granted summary judgment in the City's favor - not because the City had established that a police officer with HIV presents any kind of threat to the health or safety of others, but because the District Court thought Roe had not produced sufficient evidence to prove he is not a direct threat to others while serving in this capacity.

"The City of Atlanta 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," said Greg Nevins, supervising senior staff attorney at Lambda Legal's Southern Regional Office in Atlanta. "It was unfair for the district court to allow the Atlanta Police Department to get away with this, especially when the available science supports our client."

In July 2011, Lambda Legal filed its opening brief on appeal before the US Court of Appeals for the Eleventh Circuit. Lambda Legal argues that Roe presented sufficient evidence to satisfy any burden he has to show that his HIV is not a threat to others and that the City should not have been permitted to say he is a "direct threat" after taking the contrary position leading up to summary judgment.

In addition, Lambda Legal is arguing that the Eleventh Circuit should overrule earlier cases and place the burden on the employer to show that the applicant would present a threat to the health or safety of others, as do most of the other Circuit Courts of Appeals, rather than on the applicant to show that his employment would not present such a threat.

The case is Roe v. City of Atlanta, Appeal No. 11-11758-H.