Los Angeles Lawyer, Vol. 11, No. 6, September 1988, p. 59
Gloria Barrios

A multitude of legal issues concerning AIDS in the workplace have already arisen. As to AIDS and employment discrimination. there is no doubt that a person with AIDS is protected from job discrimination under both state and federal law.

The Department of Fair Employment and Housing (DFEH)'s first test case involving a person discriminated against by his employer on the basis of his physical handicap (AIDS)[1] was recently upheld by a superior court in Santa Barbara.[2] The case concerned John Chadbourne, a quality control analyst employed by Raytheon Company, a manufacturer of military hardware. Chadbourne had worked for Raytheon since 1980. His job duties included inspecting incoming materials in order to insure that such materials met with contractual and governmental specifications. As a quality control analyst, Chadbourne had no public contact and only casual contact with other employees. Casual contact as used in the context of this case was defined as contact that is not intimate, sexual or blood-to-blood.

On December 13, 1983, Chadbourne was diagnosed as having AIDS. He had pneumocystic carinii, a type of pneumonia associated with persons with AIDS. He was hospitalized from December 15 1983, through January 22, 1984.

Following his release from the hospital Chadbourne attempted to return to his position at Raytheon. Chadbourne gave Raytheon a letter from his own attending physician, a specialist in infectious diseases, stating he could return to work. The letter also stated that there had been no cases of AIDS resulting from close contact with a person who had AIDS. Chadbourne's doctor went on to say that AIDS is only transmitted by blood transfusions, sharing of intravenous needles or sexual contact. Raytheon conceded that Chadbourne was physically able to return to work during the relevant time period.

As soon as the company knew that it had an employee with AIDS who wanted to return to work, it directed its occupational nurse, who had no training in AIDS in particular or infectious diseases in general, to collect materials regarding AIDS, especially material regarding the transmission of AIDS. The occupational nurse contacted an epidemiologist[3] at the Santa Barbara County Health Department, who concurred with Chadbourne's doctor. In two letters to Raytheon, the epidemiologist stated Chadbourne could return to work because he presented no health risk to other employees. In addition, the epidemiologist met with Raytheon's nurse and physician, toured Chadbourne's work site and reiterated that Chadbourne could return to work.

Raytheon's nurse also contacted the Centers for Disease Control (CDC), which informed her that Chadbourne's illness represented no health risk to Raytheon's employees. On January 26, 1984, Raytheon's physician wrote a confidential memo to management recommending Chadbourne's reinstatement.

Despite the assurance from Chadbourne's doctor, the local public health department, the CDC and its own doctor, Raytheon would not reinstate Chadbourne or attempt to accommodate his physical handicap.

For months Chadbourne attempted to return to work. He brought medical information to Raytheon that indicated AIDS is not transmitted via casual contact. He experienced a great deal of anxiety because Raytheon would not reinstate him. He also suffered financially as disability payments were continually late and had taken some time to begin. Chadbourne lost much hope of returning to Raytheon when a management person told him he could not return to work until there was a cure for AIDS. He became depressed and suicidal.

In April 1984, Chadbourne filed a complaint with the DFEH alleging unlawful employment discrimination as a consequence of Raytheon's failure to reinstate him due to his physical handicap, AIDS. He began doing volunteer work for the Gay and Lesbian Center in Santa Barbara. He answered phones, filed and typed. He walked to and from work every day.

In July 1984, Chadbourne was diagnosed as having Kaposi's sarcoma, a type of cancer associated with persons who have AIDS. On January 6, 1985, Chadbourne died from complications due to AIDS.

A PHYSICAL HANDICAP

The threshold issue presented in this case was whether AIDS is a physical handicap within the meaning of the Fair Employment and Housing Act (the Act).[4]

After considering the issue presented by the Raytheon case, the Fair Employment and Housing Commission (FEHC) held in February 1987 that AIDS is a physical handicap. The commission relied on the California Supreme Court's decision in American National Insurance Company v. Fair Employment and Housing Commission,s in which the court defined a physical handicap for purposes of employment discrimination as any physical condition which is actually handicapping, potentially handicapping or is perceived by the employer to be potentially disabling even though the person has no current job disability or job- related health risk.

"The FEHC found in Raytheon that: [p]ersons infected with the virus may experience a range of physical impairments caused by dysfunction of one or more body systems, including the reproductive and hemic and lymphatic systems. A person is not diagnosed as having fully developed AIDS unless and until his immune system has completely broken down, thus making him highly susceptible to certain opportunistic infections, such as pneumocystis, and/or malignancies such as Kaposi's sarcoma."[6]

The commission reasoned that although Chadbourne's condition resulting from AIDS did not impair his ability to do his job in January 1984 when he was not allowed to return to work:

"there was not simply a possibility but a tragic certainty that the condition would at some time in the future seriously impair his physical ability and ultimately kill him. AIDS thus falls squarely within the physical handicap coverage of the Act."[7]

Similarly, the federal courts have taken an expansive view of the definition of handicapped person under the Federal Rehabilitation Act of 1973 (the Rehab Act).[8] The Rehab Act defines a handicapped person as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."[9] Section 504 of the Rehab Act[10] prohibits a federally funded state program from discriminating against a handicapped person solely by reason of his or her handicap.

In Chalk v. United States District Court for the Central District of California,[11] the Ninth Circuit, reviewing a case arising from the lower court, issued a preliminary injunction permitting a teacher with AIDS to return to work. The Ninth Circuit recognized that the Rehab Act is fully applicable to individuals who suffer from a contagious disease such as AIDS.

Recent decisions in a non-employment context have concluded that since the AIDS virus destroys certain lymphocytes, a person with AIDS clearly has a "physical impairment" within the meaning of the Rehab Act.[12]

In the Chalk case, the Ninth Circuit relied heavily on the opinion of the United States Supreme Court in School Board of Nassau County, Florida v. Arline.[13] Although the Supreme Court in the Arline case did not specifically address whether or not a person with AIDS is a handicapped person under the Rehab Act, the Court held that a teacher with tuberculosis, a contagious disease, was "physically impaired" because she had a physiological disorder or condition affecting her respiratory system. Most importantly, the Court held that to allow discrimination based on the contagious effects of a physical impairment would be inconsistent with the intent of Congress. The Court in Arline said:

". . . Congress [has] acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. Even those who suffer or who have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious. The [Rehab] Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of "handicapped individual" is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the [Rehab] Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they are "otherwise qualified." Rather, they would be vulnerable to discrimination on the basis of mythology--precisely the type of injury Congress sought to prevent. We conclude that the fact that a person with a record of a physical impairment is also contagious does not suffice to remove that person from coverage under Section 504."[14]

RAYTHEON ARGUMENT

Once the DFEH established that AIDS is a physical handicap under the Act, the burden shifted to Raytheon to prove one of the available defenses under the Act. Raytheon argued that Chadbourne's condition posed a health and safety risk to other Raytheon employees.[15] To the contrary, the information Raytheon received during the relevant time period and the medical evidence available to Raytheon all pointed to the undisputed and documented fact that AIDS is only transmitted through semen, blood and blood by-products.

At the hearing, a number of medical experts testified regarding the modes in which AIDS is transmitted. They concluded AIDS is not transmitted casually. They based their assertions on the ongoing studies of health care workers and families of persons with AIDS who have not contracted AIDS despite their close contact with persons with AIDS. There are no documented cases of someone contracting AIDS via casual contact such as exists in most workplaces. The FEHC held:

"We are highly sensitive to the critical need to protect coworkers and others from contracting AIDS. And we are acutely aware that the devastating effects of this condition and widespread lack of knowledge about it have produced deep anxieties, and considerable hysteria, about the disease and those who suffer from it.

But neither ignorance and fear nor the serious consequences of AIDS justify our departure from the carefully developed rules and procedures that govern our physical handicap cases. Those rules have served well in the past to protect both the health and safety of other persons and the civil rights of the disabled, and they will do so in this case as well. Our task here, therefore, is to determine carefully and objectively whether the evidence in the record before us demonstrates that there would in fact have been danger to Chadbourne's coworkers, under the standard stated above, had he returned to work".

We conclude, then, that the great weight of the evidence demonstrates that Chadbourne would not have endangered the health or safety of his coworkers any more than would an employee without AIDS. We therefore determine that respondent has not proven its affirmative defense and thus that its discrimination against Chadbourne violated the Act.[16]

The commission's decision in the Chadbourne case was not only upheld by the Santa Barbara Superior Court, but its ordered relief was also sustained. The commission ordered Raytheon to pay Chadbourne's estate back pay and conduct a training program for its employees regarding AIDS and the manner in which it can and cannot be transmitted. The FEHC also directed Raytheon to post a notice explaining to its employees that the Act prohibits unlawful discrimination against employees with AIDS.

DFEH'S POSITION

The DFEH currently has 67 AIDS-related cases on file and is accepting complaints from persons with AIDS, AIDS-related condition (ARC), persons who have tested positive to the AIDS virus anyone who has been discriminated against because they have associated with these persons or any person who is perceived to have AIDS, ARC or has tested positive as to the AIDS virus. The department will expedite any AIDS or catastrophic illness case. The department will also consider whether any of its AIDS cases are appropriate for injunctive relief pursuant to Government Code Section 12974.

The DFEH recommends that employers develop a physical handicap policy that includes persons with AIDS, ARC and persons who test positive as to the AIDS virus. Employers may also want to conduct a training program to educate their employees about AIDS and how the disease is transmitted.

Footnotes:

Gloria Barrios is a staff attorney for the Department of Fair Employment and Housing in Los Angeles and is the litigating attorney in Chadbourne v Raytheon. Barrios is also a volunteer attorney for the AIDS/Hospice Hotline and has spoken to many labor and employer groups regarding AIDS in the workplace and related issues.

1. Department of Fair Employment and Housing v. Raytheon Company, FEHC Dec. No. 87-12 (1987) (hereinafter DFEH v. Raytheon). Copies of pleadings, briefs and other case materials are available from the DFEH, 322 West First Street, Los Angeles, CA 90012.

2. Raytheon Company v. Fair Employment and Housing Commission, Santa Barbara County Superior Court, Case No. 167995 (April 22, 1988).

3. Epidemiology is the study of epidemics and epidemic diseases. it is the science that follows the trends of a disease through the community. It brings together the facts in order to determine the cause of a disease and the ways in which the disease is transmitted.

4. GOVT. CODE Section(s) 12920 et seq.

5. 32 Cal. 3d 603 (1982).

6. DFEH v. Raytheon, supra n.1, at 3.

7. Id. at 14.

8. 29 U.S.C. Section(s) 701 et. seq.

9. 29 U.S.C. Section(s) 706(8)(B).

10. 29 U.S.C. Section 794.

11. 840 F.2d 701 (9th. Cir. 1988)

12. Thomas v. Atascadero Unified School District, 662 F.Supp. 376 (C.D. Cal. 1987); District 27 Comm. School v. Board of Educ., 502 N.Y.S.2d 325 (Sup. 1986).

13. 480 U.S. __; 107 S.Ct. 1123; 94 L.Ed.2d 307 (1987).

14. 480 U.S. __; 107 S.Ct. 1129-30; 94 L.Ed.2d at 319-20 (emphasis in original, footnote omitted).

15. An employer covered by the Act is not prohibited from discharging a physically handicapped employee "where the employee, because of his or her physical handicap, is unable to perform his or her duties, or cannot perform those duties in a manner which would not endanger his or her health or safety or the health and safety of others." GOVT. CODE Section 12940(a)(1).

16. DEFH v. Raytheon, supra n.1 at 16-17, 19.

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