The Foreign Service Journal, September 2010

28 F O R E I G N S E R V I C E J O U R N A L / S E P T E M B E R 2 0 1 0 (Those with OpenNet access can visit the page titled “Provide equal opportunity in the Foreign Service for employees with disabilities,” for which 61 comments had been posted at this writing.) The prob- lems have been raised with depart- ment management in other venues as well, notably by the Disability Ac- tion Group, an employee organiza- tion formed in 2007. Evaluating Foreign Service Candidates Fairly So it was with special interest that I read some e-mails fromDAG forwarding articles fromFEDweek concerning recent legal actions related to applicants to the Foreign Service denied entry because of medical issues. When the FSJ called for articles about MED, I thought, “This is something that more people should know about.” I found the court records and read some additional news articles to assemble the following information. Where possible, I also contacted the plaintiffs or their lawyers for comment. Five applicants for the Foreign Service were denied Class 1 (worldwide available, required for all new FS per- sonnel) medical clearances in 2002 or 2003. All took legal action; and all had decisions published in 2008 or 2009. The best known is Taylor v. Rice , in which Lorenzo Tay- lor was denied a Class 1 clearance, and thus entry into the Foreign Service, because he had been HIV-positive for 18 years. The case was scheduled for trial in 2008 when the department changed its policy to allow some HIV-positive individuals to be hired, and the case was settled out of court. (Taylor ultimately chose not to pursue a Foreign Service career.) At the time, the department stated, “The Office of Medical Services has recently revised its medical clearance guidelines on HIV based on advances in HIV care and treatment and consultations with medical experts. The new clearance guidelines provide that HIV-positive indi- viduals may be deemed worldwide available if certain medical conditions are met. The change simply reflects the medical advances in this area of HIV care and main- tenance. While Mr. Taylor’s counsel has been made aware of the change in the guideline, it is not a term or condition of the settlement agreement.” There are at least four other, lesser-known cases in which the State Department re- ceived scathing criticism for dis- crimination against persons with disabilities. In each case, the legal system determined that MED re- lied on presumptions about the person’s medical needs without conducting a personal assessment of the candidate. (When I sought an official response regarding the four cases, I was told that the de- partment is unable to comment on matters under litiga- tion.) One candidate, who does not wish to have her name published, had already received a Class 1 medical clear- ance in July 2003 when she learned she had cancer, hap- pily at an early stage. After treatment, she informedMED of her condition, but despite declarations by two eminent oncologists that her cancer was “in complete remission with an excellent prognosis” and she had “no job limita- tions whatsoever,” MED changed her clearance level to Class 5. When she filed suit, the court found the depart- ment’s “refusal to accept the recommendations of com- plainant’s physicians or otherwise accommodate her minor medical needs … both callous and unreasonable,” but did not grant her relief because it determined that, her cancer being cured, she was not a person with a disability. The U.S. Court of Appeals overturned this decision in 2008, and the parties later reached a settlement that allowed for the candidate to enter the Foreign Service. Another applicant was denied a Class 1 medical clear- ance early in 2002 because he had a mild form of Obses- sive Compulsive Disorder and had been taking Paxil on a daily basis since 1995. In its Sept. 30, 2009, decision over- turning a lower ruling, the Equal Employment Opportu- nity Commission stated that “the agency did not take complainant up on his offer to provide more medical records … and generally failed to conduct any further as- sessment of his case.” Consequently, “a reasonable fact finder could conclude that the agency discriminated against complainant based on stereotypes or misinforma- tion concerning complainant’s OCD.” That case has also been settled. A third candidate was denied a Class 1 clearance due to dysthymia, “a form of depression that tends to be chronic and recurring in nature but with less severe symptoms than major depression.” He had suffered two episodes of F O C U S While I’ve always been able to work full time (though it hasn’t been easy), I’ve had a Class 5 medical clearance since the mid-1990s.