Department of State lawyers contend making accommodations for employees fighting HIV would be costly, interfere with work duties
Lorenzo Taylor has spent his career working for the U.S. government in various capacities since 1979.
The 50-year-old Georgetown graduate speaks three languages, and has spent nearly a decade coordinating international exchange and cultural affairs programs for the United States Information Agency. In the course of his assignments, Taylor has traveled around the world, from Brazil to Russia to Zimbabwe to China.
A few years ago, Taylor applied for his dream job, a post in the Foreign Service. After breezing through the difficult tests, he was offered a position, subject to a routine medical exam.
But the exam was anything but routine. Since 1986, the Foreign Service has flatly rejected any candidate who is HIV-positive, as is Taylor, who was diagnosed in 1985.
But in the 15 or so years since his sero-conversion, Taylor had remained asymptomatic. His medical treatment consisted of checkups twice or three times a year, and a combination of drugs.
So when the Foreign Service told Taylor he was unemployable, he refused to take no for an answer. Instead, he sued.
With the help of Lambda Legal Defense, Taylor made his case in federal court, but to no avail. Last April, a U.S. District Court judge in Washington D.C. ruled against him, insisting that the Foreign Service should not be burdened by having to make special exceptions for HIV-positive officers and their fragile health.
Taylor and Lambda appealed to the U.S. Court of Appeals for the District of Columbia, where oral arguments were held April 27.
Under a federal law similar to the Americans With Disabilities Act, the government may not discriminate on the basis of a disability, whether that be poor eyesight or HIV. Instead, the employer must make a reasonable accommodation where possible to suit the individual case.
The Foreign Service rules, however, take an end run around this law based on the notion that an officer must be immediately available for duty around the world. Since some postings could be in areas with poor medical care, the theory continues, candidates with HIV automatically lack the qualifications for the job.
The rule was established two decades ago, when HIV was indeed a death sentence and when health care in Third World countries did not include treatment for HIV or AIDS. Twenty years later, people like Taylor live normal lives with HIV, managing the virus with prescription cocktails.
According to estimates in court papers, some 80 percent of the Foreign Service’s 263 posts are in locations where HIV treatment is accessible. The other 20 percent are within a day’s travel of medical care. Entry level Foreign Service Officers receive 13 days of sick leave, plus another 13 days of vacation time each year. In addition, staff take off the usual paid holidays and are eligible for periodic home leave.
Taylor suggested that he use his allotted time for doctor’s visits every four months or so. His checkups take roughly half an hour, and he said that seemed reasonable to him.
The Department of State, however, convinced the lower court that accommodating a man like Taylor would be costly and would interfere with his duties, eating up weeks of his time and possibly requiring extensive travel. The obligation to make case-by-case determinations for numerous HIV-positive officers would be an impossible chore, they argued.
As Lambda told the appellate court, however, the Foreign Service already deals with individual exceptions, including officers who contract HIV during their service. These officers, for example, are not drummed out of the service. Instead, they are assigned to appropriate areas, and, as the law requires, “reasonable accommodations” are made.
Further, the law requires the court to avoid generalizations and examine instead the situation at hand the case of Lorenzo Taylor, not the hypothetical influx of scores of HIV-positive recruits all demanding special treatment.
Lambda also made a sharp distinction between Taylor’s case and a previous lawsuit by a man who was denied a spot with the Voice of America because of his diabetes.
In that case, which played a large role in the lower court’s reasoning, the candidate was medically able to work at only three of the Voice of America’s 12 stations. Further, the man was requesting assignment to one station in particular, a German post that was used for short-term specialists, not long-term hires.
Since the Voice of America had a staff of only 70, and since each member was often re-posted at short notice, the court ruled that the organization was justified in declining to hire the candidate.
Taylor, by contrast, is seeking to become just one of thousands of Foreign Service officers, and even under the most restrictive assessment, would be available to service in any of 200 locations.
Just months before Taylor’s ordeal with the Department of State began, Secretary Colin Powell decried discrimination before a conference of corporate executives.
“Corporate leaders can see to it that their managers implement fair employment practices to ensure there is no discrimination related to a person’s HIV status,” said Powell in June 2002 “No stigmatization. They are just like anyone else.
“This is one of those lessons we have to get to all employers and nations around the world,” he said.
“Under President Bush’s leadership, the government will commit all of its resources, all of its energy, all of its leadership ability to playing its part.”
This article appeared in the Dallas Voice print edition, May 5, 2006.