Wednesday, August 20, 2008

State Ends Extremely Regrettable Ban on HIV-Positive Foreign Service Hires

The State Department’s medical classification system was changed in earlier this year as a result of another D.C. federal court case, Taylor v. Rice, filed in 9/2003. The plaintiff, Lorenzo Taylor, speaks three languages and graduated from Georgetown’s SFS; he “easily” passed the FS exams (per the Washington Blade) and seemed well on his way to becoming a U.S. diplomat. However, after the State Department found out Mr. Taylor was HIV positive, it revoked his job offer because of his HIV status.

Incredibly, until a few months ago this was State’s ironclad no-exceptions-so-don’t-even-ask policy, even for individual applicants whose HIV was asymptomatic and who thus had no specific health needs related to their positive status. State’s rationale for this blanket policy, as in the breast cancer case discussed below, was that HIV patients might have heightened medical care requirements which could not adequately be met in some posts; therefore, it refused to hire any HIV positive foreign service officers - even those who, like Mr. Taylor, did not have any heightened medical needs or special vulnerabilities - for assignments to any posts.

Mr. Taylor sued, with good reason. The legal term of art for a case like this is “a slam-dunk.” It should be needless to say that State’s former policy, which ignored the actual health status of the individual job applicant, was in blatant violation of the Rehabilitation Act. The Act expressly prohibits discriminating against someone because of their disability or perceived disability. (The courts have held for years that HIV can be a disabling condition because of the obvious substantial limitations it places on major life activities like sex and reproduction. State obviously perceived HIV-positive status to be disabling even if it was not in individual cases.)

Given the slam dunk nature of this case, once the case was set for trial, State wisely settled. Lambda Legal represented plaintiff Taylor, with support from attorneys at Arnold & Porter. Unfortunately, the settlement terms required Mr. Taylor to agree not to seek to join the foreign service. This is actually a loss to the Foreign Service, as the tri-lingual Mr. Taylor was a graduate of Georgetown’s SFS and would have been a shoo-in if not for his HIV status.

Under the new policy, new foreign service officers still must be available for world-wide deployment - but FSO candidates are now entitled to a case-by-case analysis of their actual health condition and capabilities, rather than automatic rejection due to a given diagnosis.

Here’s hoping that these recent developments help to ensure in future that the Foreign Service includes the best and brightest that this country has to offer, even if the best and brightest are unlucky enough to have to deal with HIV or cancer. At least in the future we will not be needlessly deprived of the services of talented foreign service officers solely because of their HIV-positive and cancer-survivor status.

See Lou Chibarro, Jr., “State Department Ends HIV Ban for Foreign Service,” Washington Blade Online, available at

No Cancer Survivors Need Apply. . .

In July the D.C. Circuit reversed summary judgment in Adams v. Rice, No. 05-CV-00941, a disability case filed by a candidate for the Foreign Service against the State Department. Ms. Adams took the Foreign Service exam and passed, scoring 7th out of a class of 200. She received her final security clearance and was notified on October 2, 2003 that she could expect to receive an appointment in the Foreign Service in January 2004. The next day, Ms. Adams notified State that she had recently undergone a mastectomy and removal of her ovaries and fallopian tubes as part of successful treatment of early-stage breast cancer. Shortly thereafter, State asked Ms. Adams to provide medical documentation regarding her current condition and future treatment plans and needs. Ms. Adams’ doctor certified that she was cancer-free and that there were no limits on her ability to serve anywhere in the world. Going forward, Ms. Adams needed only an annual mammogram, one daily anti-cancer pill, and a “clinical breast exam” every six months.

Despite the fact that Ms. Adams was cancer-free, State refused to issue her a Class-1 clearance, which would allow her to serve anywhere worldwide - a requirement for new FS officers. Instead, she was given a Class-5 clearance (for those who have “a medical condition which is incapacitating or for which necessary specialized medical care is best obtained in the [U.S.]”) on grounds that only about half of overseas posts had surgeons or oncologists available to perform the semi-annual breast exams she needed. Consistent with State’s policy, Ms. Adams was automatically denied entry into the Foreign Service because she was not “worldwide available.” State later denied Ms. Adams’ request for a waiver even after her doctor explained that any competent physician or nurse-practitioner could perform the semi-annual breast exams.

Ms. Adams sued, arguing, among other things, that she is “disabled” within the meaning of the Rehabilitation Act (and the ADA) because she has a record of a disabling condition - her recent successful bout with breast cancer. She alleged that the State Department discriminated against her on the basis of her disability by refusing to offer her the Foreign Service appointment to which she was otherwise entitled because of her breast cancer. The district court, though calling State’s refusal to accept the medical certifications that Ms. Adams was healthy or to find a way to meet her few medical needs “callous and unreasonable,” granted summary judgment because it found that she was not covered by the Act. The D.C. Circuit reversed, finding that Ms. Adams is “disabled” because she has a record or history of a medical condition (breast cancer) which has substantially limited at least one major life activity - sexual reproduction. Ms. Adams testified that her cancer treatment has had residual psychological effects - a severe fear of rejection based on her changed physical appearance and a loss of libido - which have left her “limited in the major life activity of sexual contact and romantic intimacy.” The government did not challenge Ms. Adams’ assertions regarding her post-cancer psychological state, and the Circuit Court held that engaging in sexual relations qualifies as a major life activity. It further held that she had alleged a substantial impairment in that activity. Therefore, she is “disabled” within one meaning of the disability statutes, and her case was remanded for trial.

Message to State: after a federal judge has called you “callous and unreasonable,” you would do well to keep the facts in question away from a jury. Break out the checkbook and do the right thing.