Annual Update 2009 - HIV/AIDS

Document Date: July 17, 2009

Emily Cain, denied services because she’s HIV+.

In September 2006, Jeremiah Johnson, a serious, lanky 23-year-old Denver gay man, found himself at the Educational Complex Gymnasium No. 1, a secondary school in the small town of Rozdilna, Ukraine. After volunteering to serve in the Peace Corps, Jeremiah was sent there to teach English. He was also assigned to Rozdilna to teach AIDS prevention, an urgent concern in a country with the highest rate of new infections outside Africa. It was an assignment Jeremiah soon grew to love, as did his students who appreciated his novel and engaging teaching methods.

In January 2008, after receiving a routine medical exam, Jeremiah was told that he had tested positive for HIV. At the time, Jeremiah said, “the biggest thing on my mind was not necessarily my health. I knew I could still have a healthy life if positive. My biggest concern was whether I could still serve in the Peace Corps and teach my kids.”

Despite all the public health evidence at their fingertips, the Peace Corps concluded, “we do not feel that you can safely continue to serve as a PCV in the Ukraine. . .” They made no analysis of Jeremiah’s particular situation to determine whether his health could have been adequately protected while continuing to serve in the Peace Corps. They made no offer to Jeremiah to be reassigned to a place they thought would be more suitable for an HIV+ volunteer. They simply terminated him. Many of the HIV programs he started in Rozdilna came to an abrupt halt and his students were left feeling confused and abandoned.

John Doe (who is using a pseudonym to protect his family’s privacy), a decorated Special Forces veteran, retired from the Army in 2001. A year before, he had been diagnosed with HIV. After retirement, John worked for government contractors in security-related posts. In 2004-2005, for example, he worked for Defense Department contractors in Iraq, where he led security teams on military bases. John’s HIV status was not an issue for the Department which knew about it.

In October 2005, healthy with an undetectable viral load, John applied, and was accepted, to work for Triple Canopy to provide security for the U.S. embassy in Haiti under a contract with the State Department. Triple Canopy’s contract with the State Department, however, barred it from hiring people with HIV. So just before completing the training program, Triple Canopy let him go. John is currently working in construction, earning far less than his promised salary with Triple Canopy and barely making ends meet. While we do not know how many HIV positive people have been unlawfully refused jobs because of government contracts such as the one between Triple Canopy and the State Department, we do know that John is not the only person refused a job with a federal contractor because of HIV.

A couple of years ago, encouraged by his father to follow in his footsteps, Frank Miller (we’re altering identifying details of this story to ensure confidentiality and to protect this individual from workplace harassment and intimidation) applied for a job in a small-town police department. Despite passing all the preliminary tests for the position, he was turned down because in the medical exam he disclosed that he was HIV positive. Frank was devastated.

What connects the stories of these three men other than the fact that each received representation during the past year from the ACLU AIDS Project? The government. In each case, the perpetrator of the discrimination was the government. This is what motivated us to take these cases. It was the government that passed laws protecting people with disabilities, including HIV, from discrimination. Through these laws, it was the government that set the standard that people doing their best to live with their disabilities should not have to bear the additional burden of job discrimination. It is the government that we look to for fair and rigorous enforcement of civil rights laws. But it is the government now that is shown to be wanting in its commitment to fairness and equality.

The government, at times, shows remarkable ignorance in dealing with people with HIV. In law enforcement situations, for example, the government sometimes defends discrimination by contending that an HIV positive officer, when injured, poses a threat to fellow officers coming to the rescue. There have been, however, no documented cases of HIV being spread through mouth-to-mouth resuscitation, and even in cases where an HIV positive officer is shot or badly cut, the likelihood of an officer getting infected by contact with his or her blood are virtually nil.

Stories of the government’s ignorance about HIV sometimes approach the laughable. Recently, for example, the ACLU AIDS Project got drawn into a case to try and correct a federal district court’s lamentable opinion in an HIV discrimination case. A Wisconsin woman applied for a job as a waitress at Lee’s Log Cabin but was turned down when her employer discovered that she was HIV positive. The woman sued in federal court invoking the Americans with Disabilities Act (ADA), claiming that she was discriminated against because of her disability (HIV). The federal district court dismissed her case, reasoning that although she had provided evidence showing she wasn’t hired because she had HIV (In fact, the employer had even written “HIV” on the top of her application), the medical evidence she submitted suggested that she was disabled because of AIDS. This, the court said, wasn’t enough to show that she was discriminated against because of her disability, because HIV and AIDS are different. This legal distinction between HIV and AIDS we found hard to fathom; it should not determine whether someone is disabled or not under the ADA since many persons with HIV are disabled well before they meet the criteria for an AIDS diagnosis, and HIV remains the underlying disease even after an AIDS diagnosis. Remarkably, the court of appeals agreed with this “reasoning,” making it harder for people with HIV to prove claims of discrimination.

Then there are instances where the government acts against people with HIV not out of ignorance but to further ideological goals. The government’s administration of Trafficking Victims Protection Act (TVPA) funds is the most recent example. It’s admirable that the federal government provides money to help victims of human trafficking get their lives back. Many of these victims have been raped or forced into prostitution, and are thus at increased risk for HIV disease. Unfortunately, the federal government has tapped the U.S. Conference of Catholic Bishops to distribute TVPA funds to organizations helping trafficking victims and, even more unfortunately, has allowed the bishops to use their religious beliefs in deciding which services are eligible for reimbursement. And, no surprise, this has led to the bishops denying taxpayer dollars to groups working with trafficking victims for critical HIV prevention services like condoms. And this has prompted the ACLU AIDS Project, together with ACLU’s Reproductive Freedom Project and the ACLU’s Program on Religion and Belief, to file suit to stop the government from promoting one set of religious beliefs over critical HIV prevention needs.

And what’s going on now with Jeremiah Johnson, “John Doe”, and “Frank Miller?” After several months of advocacy involving Jeremiah, Peace Corps officials, key Senate staff, and returned Peace Corps Volunteers, we were able to persuade the Peace Corps to have a change of heart. They agreed that they would no longer automatically terminate volunteers with HIV. As for John, we’re still in litigation with the State Department over its contracts that exclude people with HIV. And building on Frank Miller’s courage, we were able to persuade his department to settle his case on very favorable terms, including a great change of policy on HIV positive candidates and officers. Frank did extremely well in the police academy and is now happily serving as a police officer.

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