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By Tim Eberly
Atlanta Journal-Constitution

ATLANTA - A man who tried to become an Atlanta police officer in 2006 is suing the department, claiming it secretly had him tested for HIV and would not hire him after learning that he was HIV-positive.
The man, who filed the lawsuit in federal court under the pseudonym Richard Roe, is accusing Atlanta Police Department of discrimination and violation of privacy and claims that the department has a policy of not hiring people who have HIV, according to court documents.
City officials deny that the department declined to hire Roe because of his HIV status. They said no such policy exists, though documents obtained by The Atlanta Journal-Constitution appear to contradict that claim.
Alfred Elder, a director in the city's Human Resources Department, said that Roe disqualified himself from the hiring process because he did not return calls from a police recruiter.
"We don't discriminate," Elder said. "He was not dismissed from the process because of his condition."
Documents about Roe's case sent by the city to the federal Equal Employment Opportunity Commission, though, show that any diseases of the blood - HIV is the virus that leads to AIDS - can disqualify a police candidate.
Because law enforcement can involve engaging in hand-to-hand combat, "diseases passed through the blood present a hazardous condition and as such are disqualifying conditions," the city wrote to EEOC.
Elder would not comment on that statement. He said the only issue that would disqualify someone who is HIV-positive - or has any other disease or condition - is if it prevented that person from performing the "essential functions" of a police officer, "but as long as you can perform the essential functions, you get the job."
If the city did have a policy barring people with blood diseases from being hired as police officers, it would be on solid legal ground. That's the opinion of Weyman Johnson, a labor and employment law attorney in Atlanta.
While federal law prohibits discrimination against those with disabilities - and HIV falls into that category - a 1987 Supreme Court decision likely gives the advantage to the Atlanta Police Department, said Johnson, who also teaches law at the University of Georgia.
In that case, a Florida schoolteacher was fired from her job because she had tuberculosis. The high court held that employers could use a disease as a reason not to employ someone if they could show the illness could be communicated to others through the course of the job.
The big question, Johnson said, is whether the city of Atlanta can prove HIV has been transferred to someone during the course of police work.
According to the lawsuit:
Roe was working another job in the department when he applied to be a police officer in January 2006. He passed several phases of the hiring process, including a written test, psychological examination, lie-detector test and background check. By August, it was time for him to get a medical exam.
Police officials referred him to a Midtown clinic, Caduceus Occupational Medicine. During the exam, a Caduceus doctor told Roe his blood would be drawn to test for illegal narcotics but said nothing about an HIV test. (The Police Department acknowledges that it tests job applicants for HIV, but it denies doing so without Roe's knowledge, according to the city's written response to the suit.)
In early September 2006, Roe met with a physician from Caduceus, Dr. Alton Greene. The doctor told Roe that he had tested positive for HIV and cited a Police Department policy of not hiring officers who are so infected. He said that he would recommend that Roe be hired, but that he not have any contact with the public.
After that meeting, Roe never heard from the Atlanta police recruiters who had been in regular contact with him before; nor did police officials return several messages Roe left at the department.
Greene and Caduceus are listed as defendants in the suit. Neither the doctor nor his attorney could be reached by telephone for comment but, in his written response to Roe's lawsuit, Greene denied that Roe did not consent to be tested for HIV. He also denied that he told Roe about an Atlanta police policy regarding HIV-positive applicants.
Roe's attorneys, Michael Grider and Steven Koval, declined to comment.

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