HIV Paternalism, Alive and Well . . . in the Federal Government

As the federal government readies an end to the 20-year-old HIV travel ban placed on foreign visitors to this country, the Transportation Security Administration has been accused by the ACLU of discriminating against an HIV-positive job applicant in this country.  More disturbing, the discrimination of which the government has been accused is the very sort of paternalistic treatment that Sen. Edward Kennedy decried during the debate over the Americans with Disabilities Act in 1990.

Lamarre

According to the ACLU’s appeal papers (pdf), the TSA ignored its own standards in concluding that Michael Lamarre, who has been HIV-positive for nearly the past 20 years, was subject to a “medical disqualification” from a Transportation Security Officer position for which he had applied.

The TSA’s standard, from its contractor’s letter (pdf) to Lamarre, for HIV-positive applicants states:

HIV – The effect of the treatment program, physical, emotional, and intellectual impact of the disease, and prognosis should be considered when evaluating the capability of an individual to perform job tasks.  [TSA Medical Guidelines for Transportation Security Screeners, 2007 edition]. 2) Must meet job-related standards that will be assessed in a pre-employment medical evaluation.  [Transportation Security Officer (TSO) Qualifications & Evaluations on www.usajobs.gov]

In Lamarre’s situation, he applied for and was moved through the application process successfully until he disclosed his HIV-status during a required physical.  Follow-up documentation was requested by Comprehensive Health Services, Inc., the contractor who did the physical screening for TSA.  Lamarre’s doctor provided the requested documentation, concluding that he “is capable of meeting the [TSO] job requirements safely, efficiently, and effectively with respect to my medical specialty and the candidate’s medical condition and/or diagnosis.”  Days later, the letter came from CHS informing Lamarre of the “medical disqualification.”

In follow-up conversations with CHS, according to the ACLU, ” he was told that the reason he was rejected is because his HIV status makes him more susceptible to virus and infections and that it was for his own benefit . . . .”  This, unfortunately, is not nearly as rare an employer action as it would seem, although the fact that it is coming from the federal government in 2009 is unacceptable.  As the ACLU noted, CHS reached this conclusion “despite the fact that medical experts and his own doctor have said he is no more likely to catch a cold or virus than anyone else.”

The Justice Department’s own Civil Rights Division, in a publication, “Questions and Answers: The Americans with Disabilities Act and Persons With HIV/AIDS” notes:

Employers cannot choose not to hire a qualified person now because they fear the worker will become too ill to work in the future. The hiring decision must be based on how well the individual can perform now.

The DOJ publication, however, also discusses the “direct threat” provision of the ADA, which permits employers “to establish qualification standards that will exclude individuals who pose a direct threat — i.e., a significant risk of substantial harm — to the health or safety of the individual or of others” but only “if that risk cannot be eliminated or reduced below the level of a ‘direct threat’ by reasonable accommodation.”

It appears that the TSA’s contractor determined that Lamarre performing as a TSO would be a “direct threat” to his own health or safety.  It is important, though, to note that the idea that an individual could be declared a “direct threat” to himself or herself is something only determined by EEOC regulation interpreting the ADA that was later affirmed in a 2002 Supreme Court decision.  See Chevron v. Echazabel, 536 U.S. 73 (2002). The decision was decried by disabilities-rights activists who believed the ADA and earlier disability-rights laws were attempting to eliminate traditional parternalistic attitudes about what disabled individual could and could not do.

The interpretation of “direct threat” as including a direct threat to one’s own health earlier had been rejected by the Ninth Circuit in an opinion by Judge Reinhard.  In his opinion, he quoted a floor speech from Sen. Kennedy, in which the Senator said:

The ADA provides that a valid qualification standard is that a person not pose a direct threat to the health or safety of other individuals in the workplace–that is, to other coworkers or customers . . . . It is important,
however, that the ADA specifically refers to health and safety threats to others. Under the ADA, employers may not deny a person an employment opportunity based on paternalistic concerns regarding the person’s health. For example, an employer could not use as an excuse for not hiring a person with HIV disease the claim that the employer was simply “protecting the individual” from opportunistic diseases to which the individual might be exposed. That is a concern that should rightfully be dealt with by the individual, in consultation with his or her private physician.

136 Cong. Rec. S9684-03, at S9697 (1990).  Despite Sen. Kennedy’s statement, the Supreme Court — at the Bush Administration’s urging — upheld the EEOC interpretation, in a ruling widely declared a victory for business.

If the story the ACLU tells is accurate, it would appear that, today, the “business” seeking to benefit from the 2002 ruling is the TSA. It is unacceptable that an agency of the Obama Administration is engaging in precisely the very type of paternalistic discrimination that Sen. Kennedy and disabilities advocates across the nation hoped the Americans with Disabilities Act and Rehabilitation Act would stop.

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