Tuesday, March 08, 2005

Ninth Circuit Reinstates HIV Suit Against American Airlines

See this article by that title in the Recorder. A few excerpts:

The 9th U.S. Circuit Court of Appeals reinstated a lawsuit Friday against American Airlines filed by three California men who claim they were denied flight attendant jobs because they're HIV-positive.

The unanimous appellate panel – 9th Circuit Judges Raymond Fisher and Susan Graber and 7th Circuit Senior Judge Richard Cudahy, sitting by designation -- sent the case back to district court.

The 9th Circuit panel wasn't charged with determining whether the airline violated state and federal anti-discrimination laws. Nevertheless, the judges lambasted the airline in their ruling and said American's hiring practices appear at odds with the Americans With Disabilities Act and California's Fair Employment and Housing Act, as well as the state constitutional right to privacy.

* * *

Schneider said the 9th Circuit opinion sets out a standard under which potential employers can ask applicants about their medical status.

None of the men disclosed their HIV status until the end of the application process. All had received conditional job offers. After blood tests uncovered elevated "mean corpuscular volumes," which can indicate a variety of medical conditions, the airline asked the applicants if they were HIV-positive. When each answered yes, American Airlines rescinded their job offers.

The airline told the men that the offers were retracted because they did not disclose their HIV status earlier in the application process, essentially lying.

But the 9th Circuit panel explained that anti-discrimination laws allow people to keep their medical conditions private until just before getting hired.

"Many hidden medical conditions, like HIV, make individuals vulnerable to discrimination once revealed. The ADA and FEHA allow applicants to keep these conditions private until the last stage of the hiring process," according to the opinion, which was written by Judge Fisher. "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 judges said the job offers were "not real" because the applicants were also still undergoing background checks along with the medical screening. Thus, they should not have been penalized for refusing to disclose their HIV status, according to the judges.

The Ninth Circuit's opinion can be found here.


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