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 http://www.washblade.com/2008/2-29/news/national/12125.cfm.

No comments: