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Eleventh Circuit hears case of HIV-positive man denied job as Atlanta police officer

ATLANTA -- Lambda Legal today urged the Eleventh Circuit Court of Appeals to overturn a lower court ruling against the claim of a man who applied to be a police officer with the Atlanta Police Department (APD), but was denied employment because of his HIV status.

"Not only does science not support what the APD is doing, but the fact is that people living with HIV are already serving as police officers all across the country. The City of Atlanta has to make decisions based on facts rather than bias," said Scott Schoettes, Lambda Legal's HIV Project Director.

"We asked the Court to recognize that our client presented more than enough evidence of his being able to do the job safely. We also asked the court to follow common practice under the law and place the burden back on the employer to justify its actions. We don't think the APD can do that in this case."

"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 and co-counsel in last year's Atlanta Eagle bar raid case against the APD.

"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."

The plaintiff, who is proceeding under the pseudonym "Richard Roe" to protect his privacy, is a 40-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 prohibited by federal law, specifically the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

During the litigation, the City 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 of Atlanta 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 new-found 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.

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 did present 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 without evidence that 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 legal burden back on the employer to show that the applicant would present a threat to the health or safety of others, as do most other Circuits.

"I fought for years to serve the people of Atlanta as a police officer," Lambda Legal's anonymous plaintiff said. "The APD should stand by its own admission that my HIV status does not disqualify me to serve. It was wrong to deny me a job without even a straight answer as to why; that’s not fair."

The case is Roe v. City of Atlanta.