Airline HIV Bias Appeal Wins

Federal judge orders trial for flight attendant applicants denied jobs at American

Three HIV-positive men rejected for flight attendant positions by American Airlines have won a federal appeals case heard by a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco. The decision overturns a district judge’s dismissal of the case and returns the case to that judge, Phyllis Hamilton, for further proceedings.

Arguments in the case apparently hinge on the question of when an employer is legally entitled to ascertain the HIV status of a job applicant.

The three plaintiffs, Walber Leonel, Richard Branton and Vincent Fusco, California residents, applied for flight attendant positions with the airline between 1998 and 1999. Following their initial evaluations, each man was offered a position conditional on completing a background check, drug screening and medical evaluation. The men were sent to American’s medical department to fill out questionnaires and give urine samples for the drug test and blood samples.

None of the men revealed that he was HIV-positive in response to the questionnaire, which had a specific question asking about blood disorders, and, in the case of the last of the three men to go through the process, a specific reference to HIV/AIDS.

The men were required to sign detailed releases for the drug testing, but no release for the blood test. When one of them asked what the blood test was for, he was told it was for anemia. However, the test American performed on their blood samples was a “complete blood count.”

In all three cases, the test showed elevated “mean corpuscular volumes,” which can be due to the presence of HIV-related medications. American’s medical department wrote to each of the men requesting an explanation, the men referred the questions to their doctors and the doctors revealed that the men were HIV-positive.

American then notified each of them that they would not be hired because they had not voluntarily disclosed their sero-status. The three men then sued.

The district court granted American’s motion for summary judgment against the men’s discrimination suits, and all three appealed. American argued that it was entitled to request HIV-related information once it had made a conditional offer of employment.

The court of appeals disagreed.

Judge Raymond C. Fisher observed that under the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), employers are only allowed to request medical data after all other data collection regarding an employment application has taken place and the only remaining information necessary for a firm offer is medical information. The reason for this, he explained, is to isolate medical reasons so that they can be evaluated in light of the discrimination laws.

“The ADA recognizes that employers may need to conduct medical examinations to determine if an applicant can perform certain jobs effectively and safely,” wrote Fisher. “The ADA requires only that such examinations be conducted as a separate, second step of the selection process, after an individual has met all other job prerequisites.”

Lawyers for the airline argued that American complied with this requirement, since its medical department did not turn over the HIV-related information to the personnel department until after all three men had cleared their drug tests and background checks, so at that point only the medical exam stood between them and a firm job offer. But Fisher observed that this overlooked the purpose of the two-stage requirement.

“This two-step requirement serves in part to enable applicants to determine whether they were ‘rejected because of disability, or because of insufficient skills or experience or a bad report from a reference,” he wrote. “When employers rescind offers made conditional on both non-medical and medical contingencies applicants cannot easily discern or challenge the grounds for rescission. When medical considerations are isolated, however, applicants know when they have been denied employment on medical grounds and can challenge an allegedly unlawful denial.”

Fisher noted that the two-step process was also adopted to help job applicants safeguard their privacy.

“Many hidden medical conditions, like HIV, make individuals vulnerable to discrimination once revealed,” he wrote. “The ADA and FEHA allow applicants to keep these conditions private until the last stage of the hiring process. Applicants may then choose whether or not to disclose their medical information once they have been assured that as long as they can perform the job’s essential tasks, they will be hired.”

The federal panel also found a potential violation of California’s constitutional right of privacy that allows plaintiffs to not only sue governmental agencies, but, unlike many other state laws, private employers as well. The court noted that California courts have held that inappropriate medical inquiries can amount to a constitutional violation.