A Tough Call in the Federal Workplace
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 in Washington 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 employees to 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 the 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 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 blood-soaked with the employees’ own blood.
Contact Joe Davidson at federaldiary@washpost.com
By
Eric Pianin
|
January 27, 2009; 6:10 PM ET
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Posted by: darmar40 | January 28, 2009 8:30 AM | Report abuse
One additional thing that you seem to preclude from your article... Age discrimination is also against the law in the federal work place... however, it happens each and every day.
An example? I am 51 y/o... do you think I can apply and get selected to be say, a Foreign Intell Officer, or an FBI agent? Although I could be just as capable as some 25 y/o, I am disqualified because I am over their age limits. Isn't that the same principle?
Posted by: darmar40 | January 28, 2009 8:34 AM | Report abuse
What cave has darmar40 been living in? Go greet WalMart shoppers? Geez, thanks for your understanding of those who are infected with HIV. And age discrimination has nothing to do with violating the Americans with Disabilities Act. Thank
G-D you're not in a position of authority anywhere.
Posted by: MPersow | January 28, 2009 9:22 AM | Report abuse
It seems to me that the company's argument rebuffs itself. Essentially the company wants to argue that that the essential functions of the job are a willingness to put one’s life at risk but its employees can object to anything that puts there life at risk. These are supposed people who are willing to take an assassin's bullet but won't work with an HIV+ person?
Posted by: seankellynyc | January 28, 2009 10:37 AM | Report abuse
Why are we paying anyone $545 a DAY to walk around with a gun??? Anybody could do THAT for $12 an hour.
Posted by: skeetchamp | January 28, 2009 5:30 PM | Report abuse
I think the company's stance is valid. The people who sign up for these dangerous missions admittedly know that they are in these situations, but they shouldn't be in a position to deny help for a injured person because they're scared of being infected. You expect to dodge bullets, not HIV. If boxers won't fight those who are HIV+ because of the inherent danger of cuts/injuries in a SPORT why in the world would someone want to be in an protection service position putting their lives on the line and then having to worry about fighting HIV for the rest of their lives? I can extend empathy and gratitude to this vet, but this is not discrimination. This is thinking about the health, well-being, and fairness of all that would be impacted.
Posted by: aznhoney | January 28, 2009 6:32 PM | Report abuse
"Why are we paying anyone $545 a DAY to walk around with a gun??? Anybody could do THAT for $12 an hour."
That is not a cool comment. These guys are not only risking their lives, they are away from their families too.
Posted by: tunakoyo | January 28, 2009 7:44 PM | Report abuse
Boy, is this ever a tough one. I've known HIV-positive people, three of whom developed full-blown AIDS and died. (They all were sexually very active and took few, if any measures, to protect themselves. But I hope to to see any rants against them here.)
I worked as a small-town policeman and a security patrol agent, neither as inherently dangerous as a protective service position is, not the kind the guy was training for.
The article doesn't say if the company offered any sort of other job in which this wouldn't be a concern -- maybe commanding a group of guys in the field from an office? If the guy were interested, that might have offered a way out for everyone.
In any case, with respect to the veteran for serving his country, clearly honorably, for all those years, I have to agree that he shouldn't be in that position. I was surprised the military retained him, and even more surprised he worked in a dangerous setting for two different employers after that.
To the vet directly: Sir, I'm in no way attacking you. Though I never had the privilege of serving, I have the greatest respect for those who did and do. I'm sorry your medical condition has led to this sad situation. And I hope you find a good, solid job that is satisfying to you.
The per-day pay isn't the issue here, but I will say it does seem a bit high, especially compared to the salary he got in the service.
Posted by: MekhongKurt | January 29, 2009 9:45 AM | Report abuse
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Why is this even an issue and I think it is a total waste of time in court. We have hundreds of positions throughout the federal government (both civilian and contractor) that discriminate against things like this... but as the contractor stated, it has good reason. of course, they all will agree they have good reasons. I don't have a whole lot of respect for this guy. I respect he is a veteran and served my country well... but he is retired... time to give it up. Especially when you have an ailment and something serious as HIV. You get a decent pension dude, go relax and greet Walmart shoppers or something less dangerous... Sorry for being blunt, but that is the only way some people will understand... and I hope the judge is as blunt and sympathetic as I am...