My question involves a conditional offer of employment for a law enforcement position in the state of Wisconsin. The conditional offer of employment has been given (candidates must successfully pass a medical, psychological, drug screen and physical agility) and during the medical exam, it is disclosed the candidate is HIV positive. Can the conditional offer of employment be declined on this fact or is a subject with HIV/AIDS applying for a law enforcement position considered a protected class?
The short answer to your question is that under the circumstances, the city cannot withdraw its offer simply because of the positive HIV test. Believe it or not, there have been several documented cases where officers were deemed qualified for duty but rejected after the failed HIV test. One case in your neighboring state of Illinois exposed that city to a $125,000 lawsuit. Another case within the same timeframe, was a Court of Appeals opinion that determined a discriminatory case could move forward upon removal of the offer. If you check on the EEOC's website, you will also notice their opinion regarding HIV/offer rejections, sharing that the employer's action to not hire the individual would be discriminatory.
When reviewing the other side of the equation, relative to public safety or 'direct threat', case law does in fact exist, regarding specific instances where HIV status was legally acceptable in the decision to remove the offer. One example included a grocery store housing a produce position. An HIV test was required as part of the organization's post-offer medical testing, as this type of worker would be required to utilize sharp knives on a daily basis and could be susceptible for cutting his/herself. In addition, other industries (for example health care), also require more scrunity when hiring, as their specific positions involve the risk of blood transfusion and exposed contact.
Relative to your situation at hand, there are several cases involving firefighters and police officers where revoking the offer was unfortunately not the correct employment decision. In Doe vs. District of Columbia, 796 F.Supp. 559 (D. D.C. 1992), it was found that the District of Columbia violated the Rehabilitation Act by withdrawing its offer of employment to a fire fighter, on the basis of his positive HIV status. In Holiday v. Chattanooga, 206 F.3d case, a police officer could not be denied employment because of his HIV status, as the risk of public harm must be "imminent" and must involve a substantial degree of risk. In his case, it was not enough that the harm be merely "potential."
Therefore based on all of the above information, I would suggest moving forward with your offer of employment. Choosing not to hire the individual may give rise to discrimination liability.
