Taylor v. Rice: Framing the Issues To Affect the Outcome
Scott Schoettes, HIV Project Staff Attorney
Lambda Legal Defense & Education Fund
(212) 809-8585 x 252
I. Background
Taylor v. Rice was filed in federal court in the District of Columbia in 2003 (originally as Taylor v. Powell), challenging the State Department’s refusal to hire anyone living with HIV as a Foreign Service Officer (“FSO”).
Decisions on defendant’s summary judgment motion: Taylor v. Rice, 451 F.3d 898 (D.C. Cir. 2006), rev’g Taylor v. Rice, No. Civ. A. 03-1832 (RMC) 2005 WL 913221 (D.D.C. Apr. 20, 2005).
The case was scheduled for a jury trial beginning in late February 2008. On the eve of trial, the State Department changed its hiring practices related to FSO candidates living with HIV by adopting new medical clearance guidelines, under which some candidates should be found to be eligible for hire, and the parties settled the litigation.
A. State Department Hiring of Foreign Service Officers
After passing a competitive examination process FSO candidates are made a conditional offer of employment, contingent upon obtaining security and medical clearances and passing an overall “suitability” review. As a part of the medical exam, candidates are tested for HIV. Since 1986, the State Department has maintained a uniform policy or practice against hiring people with HIV for positions in the Foreign Service.
The required medical clearance is used to determine whether, in State Department’s view, the candidate is physically and mentally capable of serving at Foreign Service posts throughout the world. FSO candidates are required to be medically cleared to serve at 100% of the Foreign Service posts (“Class 1” clearance). The reason the State Department gave for refusing to hire people with HIV is that due to their unique medical needs these individuals are not “world-wide available.” The Foreign Service Act and related regulations require that FSOs be able to serve “throughout the world,” and “on a worldwide basis,” but without defining those terms. See 22 U.S.C. §§ 3984(a), 3901(a)(4), and 22 C.F.R. § 11.1(e)(2). The State Department claims that all FSO candidates must be able to serve at 100% of the Foreign Service posts around the world at the time of hire, in order to satisfy this “worldwide availability” requirement. Because at a number of its posts, an HIV/AIDS-competent physician and laboratories capable of conducting viral load and CD-4 count tests are not available (both of which the State Department believes are required to provide adequate healthcare), the State Department would not station people living with HIV at these posts. Hence, the State Department claimed, these individuals were not “world-wide available” and could not be hired as FSOs.
B. Lorenzo Taylor
Our plaintiff, Lorenzo Taylor, was a highly qualified candidate for the Foreign Service: he had a degree from Georgetown University's Walsh School of Foreign Service, was proficient in three languages, with work experience including coordinating international exchange & cultural affairs programs for the U.S. Information Agency and working in the State Department Office of Language Services. He passed the necessary oral exam and written evaluation in 2001 and was made a conditional offer of employment.
Taylor had also been living with HIV for 20 years. He was diagnosed as having HIV in 1985, but his immune system was very healthy despite his HIV: undetectable viral loads, high CD4 cell count, no opportunistic infections, and no significant side effects from his medications. Over the years, he had traveled to multiple countries without medical problems. For Taylor, HIV is a manageable disease that requires periodic monitoring & the use of antiretroviral medication, but it does not require constant medical attention. According to his own HIV doctor, because of his strong immune system & long history of excellent health, Taylor would be at no greater health risk living in areas with substandard heath care than individuals who are not HIV-positive.
During his medical examination in late 2001, he informed the State Department of his HIV status and the Department denied him medical clearance and withdrew the conditional offer of employment. Taylor appealed through the State Department administrative process, and his request for a waiver was denied. With Lambda Legal representing him, he exhausted his administrative remedies before the EEOC and filed suit in federal district court in September 2003.
In his suit, Taylor alleged that he was capable of performing the essential functions of the job without accommodation (i.e., that he was “world-wide available” because he could serve at a majority of the posts across the globe). Alternatively, he alleged that he could perform the essential function of “worldwide availability” with either of two reasonable accommodations: 1) that he be granted a Class 2 medical clearance, which would allow him to be posted to any of the substantial number of posts across the globe with HIV care considered adequate by the Department; or 2) that, if posted at a location without adequate HIV care, he be allowed to use his allotted leave time to travel to a nearby location where he could access routine medical care for his HIV (thereby allowing him to serve at 100% of the posts).
II. The Rehabilitation Act
Because the case was against a federal official, it is brought under the Rehabilitation Act rather than the ADA.
A. Section 501 v. Section 504 (v. ADA)
The Rehabilitation Act was passed in 1973, prohibiting discrimination based on disability by the federal government – and those receiving federal financial assistance. The Act was amended by the Rehabilitation Act Amendment of 1992, and its interpretation has been affected by the passage of the Americans With Disabilities Act in 1990.
Section 501 of the Rehabilitation Act (29 U.S.C. § 791) states that each executive agency of federal government must implement “an affirmative action program plan for the hiring, placement, and advancement of individuals with disabilities.” Though not readily apparent on its face, the courts have interpreted this section as prohibiting employment discrimination against individuals with disabilities by federal agencies and have “recognized private actions challenging individual employment decisions.” See, e.g., Langon v. Dep’t of Health & Human Servs., 959 F.2d 1053, 1057 (D.C. Cir. 1992).
Section 504 applies beyond the employment context to any “program or activity” receiving federal financial assistance, federal executive agencies, and the United States Postal Service, and it more explicitly incorporates a prohibition against discrimination (“No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination . . . .”). 29 U.S.C. § 794.
Since 1992, the standards and provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12111 et seq. and 42 U.S.C. §§ 12201-12204 and 12210) govern whether there has been a violation under either §501 or § 504 of the Rehabilitation Act. 29 U.S.C. §§ 791(g), 794(d).
Nonetheless, there are some differences between the way courts interpret the ADA and the Rehabilitation Act, and practitioners should not assume that all law related to one section of the Rehabilitation Act applies to the other section or that all law related to Rehabilitation Act claims apply to ADA claims (or vice versa). For instance, due to different wording of the statutes, courts have reached differing conclusions about how to analyze an employer’s assertion that it had a nondiscriminatory reason for the employment decision. Section 504 provides that employee must prove the disability in question was the “sole reason” for the adverse decision or action, but Section 501 and ADA do not include “sole reason” language. Compare 29 U.S.C. § 794(a) (“solely by reason of his or her disability”) with 42 U.S.C. § 12112(a) (“because of the disability of such individual”); see also, e.g., Pinkerton v. Dep’t of Education, -- F. 3d --, Case No. 06-10657, 2007 WL 5006317 (5th Cir. Nov. 13, 2007) (holding that the causation standard under § 501 and the ADA are the same, and that the ADA requires a showing only that discrimination was a “motivating factor”); Soledad v. United States Dep't of Treasury, 304 F.3d 500 (5th Cir. 2002) (comparing causation standards under ADA and Section 504); Leary v. Dalton, 58 F.3d 748, 752 (1st Cir. 1995) (noting differences between Sections 501 and 504 with respect to causation standard); Powell v. City of Pittsfield, 221 F. Supp. 2d 119, 148-49 (D. Mass. 2002) (disagreeing with analysis in district court decision in Soledad).
The circuits are also split as to whether claims against a federal department or agency can be maintained under both § 501 and § 504. Compare Prewitt v. United States Postal Serv., 662 F. 2d 292, 304 (5th Cir. 1981) (“Congress clearly recognized both in section 501 and in section 504 that individuals now have a private cause of action to obtain relief for handicap discrimination on the part of the federal government and its agencies.”) with McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir. 1984) (“[I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies . . . in section 501, would have done so again a few sections later in section 504.”).
When Taylor was filed, the law in the D.C. Circuit was unclear on this point and the complaint included claims under both § 501 and § 504. Subsequently, the D.C. Circuit resolved this issue, making it clear that employment claims against federal agencies could only be brought under §501 in that circuit. Taylor v. Small, 350 F.3d 1286, 1291 (D.C. Cir. 2003) (“§ 504 does not provide federal employees an ‘alternative route for relief’ under the Rehabilitation Act.”) (“Taylor” no relation to plaintiff in Taylor v. Rice.)
III. Tension Between Being Able to Perform the Job and Being an “Individual With a Disability”
A. Ability to Perform the Essential Functions of the Job
To be protected under the ADA, an employee (or applicant) must be an individual “who, with or without reasonable accommodation, can perform the essential functions of the employment position[.]” 42 U.S.C. § 12111(8). Factors that courts evaluate in determining whether a job function is essential include: the amount of time spent performing the function; the consequences of not requiring that the function be performed; and whether current and former employees holding the same position performed the function. 29 C.F.R. § 1630.2(o). Other factors include whether the employer has previously reduced to writing the importance of this aspect of the job and/or the whether federal or state regulations establish qualifications for an employee in a specific position. See 42 U.S.C. § 12111(8); see, e.g., Bates v. United Parcel Service, Inc., -- F.3d --, No. 04-17295, 2007 WL 4554016, at *10 (9th Cir. Dec. 28, 2007) (en banc).
While according to the ADA, “consideration shall be given to the employer’s judgment as to what functions of a job are essential,” 42 U.S.C. § 12111(8), an employee or applicant nonetheless may challenge the employer’s contention that a job function is essential.
B. Taylor v. Rice
The importance of establishing which aspects of the job are “essential functions” can play a pivotal role in shaping a claim under the ADA or Rehabilitation Act. In Taylor v. Rice, neither party disputed that “world-wide availability” was an essential function of the job, however, there was strong disagreement regarding what it meant to be “world-wide available.” This resulted in a dispute as to whether the ability to serve at 100% of the posts was really an “essential function” of the job or whether the ability to serve at a substantial number of overseas posts was in fact the “essential function” that needed to be fulfilled.
The factual dispute regarding the definition of this “essential function” was a central point to the D.C. Circuit’s reversal of the district court’s decision. While the district court accepted that the essential function of “world-wide availability” (or as the district court refashioned it “reasonable availability”) meant service at more than 68% of the posts, see Taylor v. Rice, 2005 WL 913221, at *11, the D.C. Circuit held that this conclusion could not be reached without resolving factual disputes in the defendant’s favor. See Taylor v. Rice, 451 F.3d 898, 906-07. The Circuit Court noted that Taylor had provided evidence on summary judgment that candidates with less than 100% world-wide availability due to other medical conditions had been hired. Furthermore, Taylor presented evidence that some current employees were not available to serve at all posts and that individuals who tested positive for HIV after hire were currently serving as FSOs – refuting the State Department’s contentions that the ability to be assigned to 100% of the overseas posts was an “essential function” of the job and that being HIV-positive meant you could not perform the job’s essential functions.
It is worth noting with respect to burdens of proof that while plaintiff must establish that he or she can perform the essential functions of the job, some circuits place the burden squarely on the employer to establish that a particular function is in fact an “essential function.” See, e.g., Bates v. United Parcel Service, Inc., -- F.3d --, No. 04-17295, 2007 WL 4554016, at *10 (9th Cir. Dec. 28, 2007) (en banc); EEOC v. Wal-Mart, 477 F.3d 561, 568 (8th Cir. 2007). In those circuits, if an employer cannot establish that a particular function is essential, then plaintiff would not need to show the ability to perform that function, regardless of the availability of a reasonable accommodation. See Bates, 2007 WL 4554016, at *9. Furthermore, the definition of the essential functions of a job influences the analysis under the “direct threat” defense (discussed below) because the direct threat defense turns on whether an individual can “safely perform the essential functions of the job.” Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 86-87 (2002) (emphasis added); see also, e.g., Taylor, 451 F.3d at 906.