Washington Blade - November 07, 2003
Joe Crea

The complaint marks the second time in the past year that Lambda Legal Defense & Education Fund has represented someone rejected by the department because of their HIV status.

State Department policy prohibits anyone with HIV from being hired as a Foreign Service officer, because it is feared that people with HIV will be unable to work in locations where the most advanced medical care might not be immediately available. But current HIV-positive Foreign Service officers are accommodated and sent to work at posts where medical care is obtainable, according to Lambda Legal.

Kyle Smith, 34, applied last November to become a Foreign Service office management specialist. Smith, who lives in Columbus, Ohio, said that after completing the interview process he was offered the job on the condition that he obtain security and medical clearances.

Smith has been living with HIV for seven years but said he is in good health and that his T-cell count is on par with counts for those who do not have HIV. He said he didn't think his HIV status would have prevented him from getting the job.

"There was no banner on the doorstep saying HIV was not allowed," Smith said. "I guess I just hoped for the best. I know that many companies have come around to a better understanding of the disease, and I think the government is evaluating this on an old notion. It's not like 20 years ago when individuals needed round the clock nursing care."

An official at the State Department declined to comment on either of the pending suits.

Policy dates to 1980s

In the mid-1980s, the Foreign Service adopted the policy for testing all applicants for HIV and rejecting those who were positive. In the mid-1990s, the Service reviewed the policy and decided it would not fire current office holders who discover they are positive while working for the Foreign Service and remain healthy, but retained the policy of not hiring HIV-positive applicants, said Jonathan Givner, AIDS Project Staff Attorney for Lambda Legal.

"We don't see any distinction between current employees and prospective applicants," Givner said. "The law requires that the Foreign Service should not discriminate against people with HIV. In this case, the Foreign Service is discriminating in the application process."

In early September, Lambda Legal filed a lawsuit in federal court on behalf of Lorenzo Taylor, a 47-year-old federal government employee who was also rejected by the Foreign Service because he has HIV. Givner said that Lorenzo has been living with HIV for the past 17 years. The State Department has until the end of the week to respond to the lawsuit.

In both the Smith complaint and Lorenzo lawsuit, Lambda Legal maintains that the State Department is in violation of the federal Rehabilitation Act, which prohibits the federal government from discriminating against people with disabilities. When asked if AIDS is legally considered a disability, Givner noted that courts around the country have held that people with HIV are protected against discrimination under the Rehabilitation Act.

Lambda Legal says that since the State Department has already addressed the issue of current HIV-positive Foreign Service officers and their present medical status, they are well equipped to evaluate prospective HIV-positive applicants on a case-by-case basis.

"In the case of Lorenzo and Smith, where their health condition is good and controlled by medications, there is no real risk," Givner said. "Current [HIV-positive] employees are not fired as long as they remain healthy. Now, it limits the number of posts in which they can serve since certain locations might not have appropriate medical care but it's our belief that they can serve anywhere and can certainly serve in the more limited posts."

'Practicing discrimination'

Lambda Legal said that other than the military, the Foreign Service is the only type of federal employment where people with HIV are blocked from consideration.

Givner said the State Department's policy is illegal and wrong, because it diminishes the likelihood that the federal government will hire the most qualified employees. He added that it sends a bad message to other countries around the world.

"At a time when the HIV epidemic is exploding in the world, we at the same time are practicing discrimination," Givner said.

In a press release, Lambda Legal noted that in Secretary of State Colin Powell's speech last June to an Open Forum Conference, he said, "Corporate leaders can see to it that their managers implement fair employment practices to ensure there is no discrimination related to a person's HIV status - no stigmatization.

They are just like anyone else. This is one of those lessons we have to get to all employers and nations around the world ... [U]nder President Bush's leadership, this government will commit all of its resources, all of its energy, all of its leadership ability, to playing its part."

Smith, who will receive his second bachelor's degree this December, said he hopes to pursue a master's degree in project management next year. He said that if the State Department were to offer him a job, he would have "reservations" about taking it.

"Once you face a level of discrimination, you question whether or not you want to work for a body that discriminates," Smith said.

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