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The Ninth Circuit U.S. Court of Appeals reinstated a lawsuit Friday against American Airlines filed by three Bay Area men who claim they were denied flight attendant jobs because they’re HIV-positive. The unanimous appellate panel — Ninth Circuit Judges Raymond Fisher and Susan Graber and Seventh Circuit Senior Judge Richard Cudahy, sitting by designation –sent the case back to district court. The Ninth 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. The men’s claims will now proceed under those laws, as well as the state unfair competition statute. “We’re ecstatic,” said Todd Schneider of Schneider & Wallace, which represents the plaintiffs. The Legal Aid Society-Employment Law Center of San Francisco filed an amicus curiae brief supporting the suit. American Airlines was represented by Littler Mendelson. Lawyers there did not return calls seeking comment. U.S. District Judge Phyllis Hamilton had tossed the men’s claims, which were consolidated into one case, on a summary judgment motion. Schneider said the Ninth 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 When each answered yes, American Airlines rescinded their job offers.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 Ninth 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. Anti-discrimination laws are designed this way in part to keep invasions of privacy to a minimum and to let people know that it was the medical screening that most likely kept them from getting a particular job. The panel also disapproved of the airline conducting specific blood tests without first telling the men. “By consenting to pre-employment blood tests, the appellants did not consent to any and all medical tests that American wished to run on their blood samples,” the judges wrote. Schneider said American Airlines’ medical director said under deposition that there was no medical reason why the men couldn’t have been hired. Other airline employees are HIV-positive, Schneider added. The case is Leonel v. American Airlines, Inc., 05 C.D.O.S. 1901.

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