HIV and the ADA in “Dangerous” Workplaces

By Joe Davidson
The Washington Post
Wednesday, January 28, 2009; D01

Should an employer be required to hire an applicant who has HIV for work that could become bloody in a place where there is poor medical care?

Suppose the job is protecting diplomats in dangerous places. The employee would carry a gun, probably a big one, and would be trained to expect attacks. The result of an assault, of course, could be a bloody mess.

The answer is not an easy one, which is why the U.S. District Court for the District of Columbia has been asked to sort it out.

The case involves a 46-year-old former Green Beret, who received numerous decorations during his 20 years in the service. Shortly before the Obama administration took office, he sued the State Department and a private security firm, Triple Canopy, because he was pushed out of its training program. He was told the company’s government contract requires that employees have no contagious illness.

Court documents refer to the plaintiff as John Doe. Journalists don’t like to use pseudonyms, but exceptions are sometimes made. In this case Doe, who did tell me his real name, says he fears further discrimination. “I have a family and I want to protect my kids,” he said in a telephone interview.

In November 2005, Doe was at the end of his training with Herndon-based Triple Canopy when a supervisor pulled him from a session to say Doe would not be sent to protect diplomats in Haiti as planned.

According to Doe’s court brief, the supervisor cited paragraph C5 of the company’s contract with State, which says, “all contractor employees working under this contract should . . . be free from communicable disease.” Doe was told that provision is mandatory and includes HIV.

Now, instead of the $545 a day he would have made with Triple Canopy, he says he gets $12 an hour doing construction work.

Through his attorneys with the American Civil Liberties Union Foundation and the firm of Paul, Weiss, Rifkind, Wharton & Garrison in New York, Doe argues that the federal Rehabilitation Act and the Americans with Disabilities Act prohibits discrimination based on disabilities, including HIV.

“Despite these mandated protections, the State Department required certain of its contractors to terminate, or deem ineligible for employment, all individuals with HIV regardless of their ability to perform the essential functions of the job,” Doe’s brief states.

He doesn’t have any symptoms. And after Special Forces service and having already done similar work in Iraq, he has no doubt that he can do the job.

“There is not too many Americans that are as qualified as I am doing this kind of work” he told me. “I am a professional at what I do, and I’ve never had any problems doing my job.”

While in the Army, he worked as a Special Forces engineer, intelligence officer and a team sergeant in far-flung places like Haiti, Kenya, Kuwait and Pakistan.

He tested positive while in the Army but continued to serve until his normal retirement date.

After retiring from the Army in September 2001, Doe wanted to continue doing “basically what I’ve done my whole life.”

He was a Defense Department security contractor with two companies in Iraq, doing essentially the same type of work he planned to do for Triple Canopy in Haiti.

His HIV status was known to his employers while in Iraq, and that “did not impede his two years of employment for these contractors in any way,” his brief says. But when he went to work for Triple Canopy, it terminated him “because the State Department barred Triple Canopy from hiring anyone with HIV” for work under its World Personal Protective Services Contract.

The State Department denies that assertion without elaboration in its brief. While the government’s document is short on information, Triple Canopy’s brief does provide a rationale for giving Doe the boot.

With the hazardous conditions, the danger of bloodshed “and the consequent threat to the safety and health of other individuals, the deployment of John Doe . . . would pose a direct threat to other individuals (as well as to himself),” Triple Canopy argues.

If Doe were wounded, “his colleagues would face the choice of either refusing to render aid to him or doing so without the ability to comply” with proper procedures for treating those with HIV, meaning they wouldn’t have protective clothing such as masks or rubber gloves.

Triple Canopy acknowledges that “it is well-established that HIV-positive status does not present a direct threat to the safety and health of others in a normal working environment.”

But it also says federal law promoting employment for those with disabilities “is not intended to do so at the risk of their own health or safety or that of others.”

Banning discrimination against those living with HIV in a normal workplace is a no-brainer. But it’s a more difficult question if the workplace could become soaked with the employees’ own blood.

Contact Joe Davidson at federaldiary@washpost.com.