Lambda Legal Defense argued before the 11th Circuit U.S. Court of Appeals Wednesday, January 25, that the Atlanta Police Department violated the rights of a man with HIV who applied to join the force.            Lambda HIV Project Director Scott Schoettes, who argued on behalf of the anonymous plaintiff before a three-judge panel January 25, said Roe v. Atlanta tests under what circumstances HIV can be considered a “direct threat” and who has the burden of proving it—the employer or the employee.

The Atlanta Police Department refused to hire “Richard Roe,” a 40-year-old Georgia man as a police officer in 2006 after a pre-employment medical exam indicated that Roe tested positive for HIV infection. Two federal laws prohibit such discrimination—the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Initially, said Schoettes, the city defended itself by saying that HIV infection was not a disqualifying criteria for all police department. But in court, it argued that Roe could not prove that his HIV status did not present a direct threat to the health and safety of others.

While the ADA and Rehab Act prohibit discrimination based on disability, they do allow an employer to require that an employee “not pose a direct threat to the health or safety of other individuals in the workplace.” The question, said Schoettes, was who had to prove the presence or absence of a direct threat in this case.

The federal district judge ruled for Atlanta, saying Roe had failed to establish that his HIV status was not a direct threat.

Schoettes said he argued that the city was trying to argue two sides—that HIV was not a disqualifying factor and that it posed a direct threat. And he said the lower court erred by ruling that it was Roe’s burden to prove his HIV status as a police officer would not be a direct threat to others.

Schoettes said the case is one potentially ripe for consideration at the U.S. Supreme Court level because there is a conflict among several circuit courts of appeal on the issue of who has the burden to prove direct threat.

According to court documents, Roe had “passed” a battery of other police officer tests before the city sent him to a contract medical clinic for a medical examination. It was only after that examination indicated he had HIV that the city said it would not hire Roe as a police officer. Lambda also noted that the medical clinic doctor who examined Roe told him that the city had a policy of not hiring police officers with HIV. And Lambda noted that the doctor told the city Roe had “failed” his medical exam due to testing positive for HIV infection.