against handicapped persons, see 29 U.S.C. § 794. The Foreign Service is made subject to the Rehabilitation Act by 22 U.S.C. § 3905(e)(4).
Persons who carry HIV may be deemed handicapped in one or both of two ways. It is enough if they are perceived to be handicapped, see 29 U.S.C. § 706(7)(B)(iii). In the present period of speculation and concern over the incurable and fatal nature of AIDS there is no doubt that a known carrier of the virus which causes it is perceived to be handicapped. Plaintiff relies solely on this aspect, contending that persons may under normal circumstances in the United States carry HIV for years, be completely well, and perform efficiently. Were this the sum total of the problem under the circumstances of this case, an injunction might be required. The Department of State could not justify testing for the virus if its presence did not impact on job qualifications for worldwide Foreign Service duty.
However, the Department of State, while disputing that HIV-infected persons are perceived as handicapped, concedes applicability of the Rehabilitation Act on the ground that the great majority of HIV carriers are physically impaired and handicapped only for that reason, under 29 U.S.C. § 706(7)(B)(i), due to measurable deficiencies in their immune systems even where disease symptoms have not yet developed.
Plaintiff vigorously disputes the Department's conclusion that symptomless HIV carriers are in any way impaired,
or that at the great majority of its Foreign Service posts the functions of such carriers would be likely to be impaired through greater risk of infection or less competent medical care. Plaintiff's views find little support in the record. The Court is satisfied that the Department of State has demonstrated serious ground for concern about the additional risk that disease will develop from placement of HIV carriers in many foreign posts and that medical care at such posts will be inadequate to diagnose and treat medical problems that may develop in any infected person.
The Rehabilitation Act only protects an "otherwise qualified individual" from suffering employment limitations "solely by reason of his handicap," 29 U.S.C § 794. It does not appear from the present record that HIV-infected persons are "otherwise qualified" for worldwide Foreign Service duty. The Rehabilitation Act does not require the Department of State to ignore the obvious relevance of HIV infection to its qualification of Foreign Service employees for long terms of worldwide duty abroad. See, e.g., Strathie v. Department of Transportation, 716 F.2d 227, 230-31 (3rd Cir. 1983); Doe v. New York University, 666 F.2d 761, 775 (2nd Cir. 1981). Furthermore, the record is devoid of any purpose or intention to discriminate. The present record discloses sufficient prospect of serious harm to the Department of State's mission and to its employees to warrant continued testing and consequent limitation on assignment or hiring. Again, the prospects of success on the merits are slight. Every effort is being made to accommodate existing employees found to carry the virus and the balance of the equities and the public interest warrant continuation of the challenged testing program until final resolution of the issues.
Moreover, the Court must recognize plaintiff's apparent lack of standing to claim the full relief requested by its complaint. Plaintiff does not speak for all Foreign Service employees or many potential applicants. No current Foreign Service employee or family member has joined this suit and testing has so far disclosed very few HIV-infected employees. Thus the Court must take cognizance of the possibility that plaintiff may lack organizational standing to represent its members under the standards developed by the Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977), and International Union, UAW v. Brock, 477 U.S. 274, 106 S. Ct. 2523, 91 L. Ed. 2d 228 (1986), recognizing the highly individualized nature of the problem and possible conflicts between Foreign Service employees or within their families. Finally, the Court is not persuaded that a change in the status quo is in the public interest.
Plaintiff's motion for a preliminary injunction is denied. An appropriate Order is filed herewith.
Upon consideration of plaintiff's motion for a preliminary injunction, defendants' opposition, plaintiff's reply, the exhibits filed by the parties, and argument in open court, for the reasons stated in an accompanying memorandum filed herewith, it is hereby
ORDERED than plaintiff's motion is denied.