Washington Blade - November 28, 2003
Christopher Seely

"The reasons that motivated our decision have nothing to do with discrimination, but safety," Ménard said. "Being accused of discrimination is biased right now.

People are jumping to conclusions before the whole issue is analyzed by the authorities."

Cirque fired Matthew Cusick, an HIV-positive gymnast, in March after he spent months preparing for an aerial act in the Las Vegas show, "Mystere," according to Cirque and Cusick.

"I was crushed," Cusick said. "I saw a dream that was happening, and now it's not. Now it's just something that's not coming true."

The national attention to Cusick's case and HIV discrimination escalated with protests of Cirque shows in San Francisco on Nov. 20 and a subsequent investigation into Cirque's policies by the San Francisco Human Rights Commission.

And on the verge of World AIDS Day on Dec. 1, the ACLU also sought to raise awareness of HIV discrimination by releasing a report about the incidence of bias based on the disease. At the same time, the civil rights group announced it had filed lawsuits on behalf of an HIV-positive woman in Nebraska fired from her job.

"We all expected that we would learn of discrimination persisting, but we were surprised that it was as prevalent as it was," said Leslie Cooper, staff attorney with ACLU's AIDS Project. "Almost everyone that we interviewed had stories of discrimination."

Cirque defends firing

Officials from Cirque du Soleil met with attorneys from Lambda Legal Defense & Education Fund for the first time Nov. 21 to negotiate a settlement for Cusick. The company offered him a "considerable job" as a coach, Ménard said.

"We have offered a job for Matthew, but he has not agreed," Ménard said.

Lambda Legal, a gay legal group, picked up the case and assisted Cusick in filing a complaint with the U.S. Equal Employment Opportunity Commission in July on the basis of discrimination.

The case "continues, but isn't settled," said Hayley Gorenberg, director of Lambda Legal's AIDS Project.

"The employer doesn't remedy discrimination by then handing our client some other job that then happens to be available, if the employee who was discriminated against can do the job for which he applied and for which he was hired," Gorenberg said.

In the EEOC complaint, Cusick said he disclosed his HIV status to the company months before he was fired, and had been cleared twice by Cirque physicians to perform.

But Cirque, which does not test its athletes for HIV, said the company couldn't risk infection of other performers or patrons, Ménard said.

"We have said all along that justice in this case could include reinstating him, include training and education so this won't happen again, and compensation for what he has had to endure," Gorenberg said.

Lambda does not have a specific figure in mind if Cusick and Lambda receive "a right to sue letter" from the EEOC, a necessary step in proceeding with the lawsuit.

On Nov. 20, the evening before officials with Lambda and Cirque met, protesters holding signs, stickers and flyers gathered outside Cirque's show "Allegria" in San Francisco.

"The response from show-goers was extraordinarily positive," said Michael Adams, director of education and public affairs for Lambda Legal. "Many chose to wear stickers protesting discrimination into the show."

HIV-positive performer poses safety hazard?

As part of the EEOC's investigation to determine if Cusick should be allowed to sue, Cirque submitted evidence that Cusick would be a safety hazard to other performers and circus goers, Ménard said.

The EEOC investigation requires Cirque to show that Cusick, who was hired to perform tricks on tall Chinese poles and in trapeze acts, posed a health risk to others.

"We have a very good idea of the type of incidents that do occur with artists in aerial acts," Ménard said.

Cirque submitted to the EEOC a list of injuries that pose risks of HIV transmission during aerial acts documented from the past, such as collisions and falls, Ménard said.

But Lambda and Cusick point to policies at major athletic organizations, which allow HIV-positive athletes to compete. Those groups include the National Collegiate Athletic Association, National Basketball Association and the International Olympic Committee.

"There is no case of transmission ever in the case of HIV in sports," Gorenberg said. "There is no reason to test or bar athletes from performing. We don't see any proof otherwise, and neither do any of these other American or international organizations."

The Human Rights Commission in San Francisco launched an investigation on Nov. 21, after the protests, to assure Cirque complies with San Francisco city codes that ban discrimination based on HIV status, according to the San Francisco Chronicle.

If Cirque, which leases property from the Port of San Francisco, is found to hold discriminatory policies, it faces fines, termination from its current contract or no possibility for a city contract for up to three years, the Chronicle reported.

Discrimination 'everywhere'

Fear of job termination is just one of the many reasons why people at risk of HIV do not get tested, and potentially spread the disease to others, according to a report released by the ACLU AIDS Project earlier this month.

"Because of that fear, more people get infected, more people get sick, and more people die," according to the report.

The ACLU surveyed more than 40 AIDS service organizations across the U.S. for the report, helping to paint "a clearer picture of the problems out there," said Cooper, director of the ACLU AIDS Project.

"Everywhere we went, clients of community-based organizations were facing discrimination," she said.

But there are no precise numbers documenting HIV discrimination cases, Cooper said.

"Forty community-based organizations represent a tiny fraction of the people with HIV in the country," Cooper said. "Given the prevalence of discrimination we've seen just in those communities suggests that much more discrimination is going on out there."

The ACLU said the organizations it contacted reported cases of discrimination in employment, child custody and visitation, medical care, and housing and shelters.

Roughly 362,260 people were living with HIV/AIDS in the U.S. at the end of 2001, according to the latest estimates by the Kaiser Family Foundation.

New York contained the highest number of residents with HIV in 2001 at 60,437.

The District of Columbia finished above 40 states with 7,497 diagnosed HIV infections, according to the foundation.

For many people, seeking justice against discrimination based on HIV status is not an option, Cooper said.

"A lot of clients of these community-based organizations are people who have a difficult enough time of dealing with their day-to-day lives, a place to live, food to eat, medical care," she said. "They are folks who don't have the material and emotional resources to go out and start a lawsuit over HIV discrimination."

Federal protections

The ACLU currently represents an HIV-positive, 19-year-old Nebraska woman who is suing two former employers, a local restaurant in an undisclosed town and Casey's General Stores, Inc.

The ACLU would not reveal the identity of the woman or her location, or the name of the restaurant.

The lawsuits allege Jane Doe was fired from her job as a restaurant hostess when the owner learned she was HIV-positive. A week later, the manager at her convenience store job significantly reduced her hours and required her to wear protective gloves at all times, Cooper said.

Doe contracted HIV as a teenager from using needles for drugs, Cooper said.

The lawsuit will test a Nebraska HIV anti-discrimination law for the first time and the federal American with Disabilities Act, according to Cooper.

The lawsuits by Lambda and the ACLU hinge on whether the plaintiffs pose a "direct threat" to other employees and patrons, under the Americans with Disabilities Act, said Steven Kaminshine, an ADA expert and associate dean at the Georgia State College of Law in Atlanta.

"The ADA contains a defense for employers accused of discrimination," Kaminshine said. "This direct threat defense allows employers to argue that the discrimination is necessary because the person's disability poses a direct threat to others."

The ADA also guarantees equal opportunity for HIV-positive individuals in public accommodations, employment, transportation, state and local government services, and telecommunications, according to the U.S. Department of Health & Human Services' Office of Minority Health.

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