Legal experts in the trucking industry say that the issue of safety could give P.A.M. Transport a case In defending itself against the U.S. Equal Employment Opportunity Commission's charges that the company improperly discharged a driver with HIV.


The EEOC is suing the Arkansas-based carrier for disability discrimination, charging that the company unlawfully fired a driver after learning he was HIV-positive. According to the EEOC, the driver had notified P.A.M. of a routine appointment to monitor his HIV-positive status because the company's policy requires this notification. P.A.M. then asked the driver to provide full release of his medical records and refused to allow him to return to work, the EEOC says.

Officials at the EEOC and P.A.M. did not return calls seeking additional comment, but we spoke with several legal experts that specialize in trucking for their take on the case and what it might mean for other trucking companies.

Safety First?

P.A.M. could have been taking safety precautions when deciding to discharge the driver, according to Laurie Baulig, director of the Center for Liberal Arts and Society at Franklin and Marshall College in Pennsylvania, pointing to the DOT regulations that say drivers must be physically qualified to safely operate a commercial vehicle.

"Safety concerns are paramount, and they should be," said Baulig, who served as vice president for labor and human resources policy at the American Trucking Associations from 1992-1997. "When it comes to these safety-sensitive positions, it puts the trucking company between a rock and a hard place in many ways."

Safety cannot be taken lightly by trucking companies when lives are at stake out on the road. If there was something about the driver's condition or the medication he was on that interfered with his ability to drive a commercial motor vehicle safely, this could give P.A.M. grounds for terminating him, but only if the termination was "job-related and consistent with business necessity," as the EEOC says.

Baulig says there is nothing in the DOT regulations that is an automatic prohibition of a medical condition related to HIV -- unlike, for instance, the DOT regulation regarding individuals who are insulin-dependent diabetics. In these instances where there is no absolute prohibition, the trucking company must conduct some sort of individualized assessment, such as a medical examination, Baulig says.

Michael Richardson, partner at Rose Walker, a national law firm specializing in trial law, says if he was P.A.M.'s lawyer, he would have recommended giving the driver a driving test to determine if he was fit to return to work.

"Discharging an employee after learning he is HIV-positive without determining whether he can continue to perform his job violates the Americans With Disabilities Act," said Nedra Campbell, EEOC trial attorney, in a press release. "Such a broad policy imposes disability-related inquiries that are not job-related and consistent with business necessity and therefore, violates the ADA."

Discrimination?

But Richardson believes this case has discrimination written all over it, as being HIV-positive should not have any bearing on one's ability to drive. "At first blush, there are a tremendous number of HIV-positive people walking around," he says. "And most of them are completely healthy."

If the HIV had progressed into full-blown AIDS, this might have more of an effect on his driving ability, Richardson says. Common symptoms of AIDS include fevers, sweats, swollen glands, chills, weakness and weight loss.

Company Policy

According to the EEOC's press release, it was P.A.M.'s policy for drivers to notify the company whenever any treatment is received from a medical professional. But whether the company was acting discriminatorily depends on whether it was a written policy and whether the company was consistent in following this policy, Baulig says. If P.A.M. was only following the policy for HIV-positive employees, that's a problem.

Richardson says the company must have a good basis for requesting the employee's entire medical records, as the Health Insurance Portability and Accountability Act protects the confidentiality of medical records.

However, in some situations, DOT regulations require a trucking company to gather information on an employee's medical condition, says Anderson Scott, partner at Fisher & Phillips, a law firm specializing in labor and employment matters. "One such situation, for example, is in the event of conflicting medical reports about whether a person is safe to drive a commercial motor vehicle," he says. It's unknown whether this was the case with P.A.M.

However the case plays out, there is a tension between two different government policies-safety versus civil rights protection for the disabled, Baulig says.