"This is a great victory for Lambda Legal's client who will now get his chance in court to show how the APD's refusal to hire him was discriminatory and illegal," said Scott Schoettes, Lambda Legal's HIV Project Director." Before the appellate court, the City of Atlanta admitted that there are already HIV-positive police officers serving on the force; now they need to explain why our client should be treated any differently."

"The APD really needs to rethink its employment practices when it comes to applicants with HIV. They've shown they can 'talk the talk,' but now they need to 'walk the walk' by making it clear they will no longer disqualify people from serving simply because they are HIV-positive," said Greg Nevins, Supervising Senior Staff Attorney at Lambda Legal's Southern Regional Office in Atlanta and co-counsel in last year's Atlanta Eagle bar raid case against the APD.

The plaintiff, who is proceeding under the pseudonym "Richard Roe" to protect his privacy, is a 40-year-old Georgia man living with HIV who applied to be a police officer with the APD in early 2006. During a pre-employment medical exam, the APD learned that Roe is HIV-positive, and the doctor informed Roe that his HIV status disqualified him from becoming a police officer with the APD. When he subsequently wasn't hired, Roe filed suit in the U.S. District Court for the Northern District of Georgia against the City of Atlanta for discrimination prohibited by federal law, specifically the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

During the litigation, the City maintained that it did not consider HIV to be a disqualifying condition for the position of police officer and that it had no policy against hiring people with HIV. However, on summary judgment, the City of Atlanta reversed course and contended that Roe could not show he was qualified to perform the job, because it believed that a police officer with HIV presents a "direct threat" to the health and safety of others. The City did not support its new-found belief with any evidence. Nonetheless, the district court granted summary judgment in the City's favor - not because the City had established that a police officer with HIV presents any kind of threat to the health or safety of others, but because the district court thought Roe had not produced sufficient evidence to prove he is not a direct threat to others while serving in this capacity.

In July 2011, Lambda Legal filed its opening brief on appeal before the US Court of Appeals for the Eleventh Circuit. Lambda Legal argued that Roe presented sufficient evidence to satisfy the burden he has to show that his HIV is not a threat to others, and that the City should not have been permitted to argue that he is a "direct threat" after taking the contrary position leading up to summary judgment. In addition, Lambda Legal argued that the Eleventh Circuit should overrule earlier cases and place the legal burden on the employer to show that the applicant would present a threat to the health or safety of others, as do most other Circuits. Today, without expressing an opinion about the issues of the case, the Eleventh Circuit vacated the lower court's ruling and remanded the case back to district court.

To read the decision visit: http://www.lambdalegal.org/in-court/legal-docs/roe_v_atlanta_ga_20120201_decision

The case is Roe v. City of Atlanta.

Scott Schoettes, HIV Project Director, and Gregory R. Nevins, Supervising Senior Staff Attorney, are handling the case for Lambda Legal.