Atlanta police argue that hiring the man poses a threat to the health and safety of the public.
A federal appeals court is scheduled to hear arguments in the case today.
“It’s shocking and frustrating and very saddening that in 2012 this is still going on,” said the 40-year-old man who sued the city of Atlanta in 2010 under the pseudonym Richard Roe. “People are living with HIV and, for the most part, they are living normal lives and productive lives.”
Roe spoke on the condition of anonymity because he believes his condition could prevent him from other job opportunities.
Roe’s lawsuit mirrors a battle that has largely been waged quietly. Several similar lawsuits have been dismissed by judges who sided with the police departments, or the cases were settled out of court with the agreements kept confidential.
A lower judge sided with Atlanta in November 2010 and threw out the lawsuit, ruling that Roe failed to prove he didn’t pose a “direct threat” to the health and safety of others. Roe appealed the decision.
Atlanta attorneys said in court documents that Roe didn’t disclose his condition and warned he couldn’t perform “essential functions” of an officer. The police department and city officials have refused to comment beyond court filings.
Roe said he was a criminal investigator with the city of Los Angeles, though he did not work with the police department. He discovered he had HIV in 1997 but said it didn’t hinder his ability to perform his duties. He said his infection never came up with the city.
He moved to Atlanta to find a better job, and in January 2006 began the lengthy process to join the police force. He passed a written test, a psychological exam, computerized voice stress analysis and a background check. The roadblock came after a blood test during a physical revealed he had the virus that causes AIDS, his lawsuit said. The doctor did not do any further tests.
Roe said the physician, Dr. Alton Greene, told him Atlanta police had a policy of refusing to hire officers with the virus. Roe said the doctor’s statement violates the Americans with Disabilities Act, which he said prevents employers from dismissing anyone because they have HIV.
The city said they do not systematically reject job applicants because of HIV, but instead they decide on a case-by-case basis.
In Roe’s case, the city said, the doctor recommended he have “no physical contact or involvement with individuals.”
Catherine Hanssens, the executive director of the Center for HIV Law and Policy, said the Roe case centers on the “belief that, 30 years into the epidemic, HIV is easily transmitted and results in a death sentence when it is transmitted. And neither of those are remotely close to the truth.”
Nurses, paramedics and other first responders with HIV have faced similar challenges over the years, said Hanssens, but she said legal fights in those professions don’t surface much anymore because decades of litigation and medical research show those with HIV can work in higher-risk fields.
Scott Schoettes of Lambda Legal, the gay rights group that represents Roe, said the city will not be able to show that someone with HIV presents a public threat.
“And maybe other departments will realize that they should create a policy that explicitly says HIV should not disqualify you from getting a job,” he said.
Darrel Stephens, the executive director of the Major Cities Chiefs Association, said his group has no guidelines for members on how to treat applicants with HIV. The Fraternal Order of Police also doesn’t have a policy, but president Chuck Canterbury said his group argues that officers with the virus should be protected under the Americans with Disabilities Act.