Being Alive; January 1994
John Alan Cohan

The first AIDS discrimination lawsuit to be filed under the ADA was recently settled. The case involved a Ventura medical clinic that agreed to pay $85,000 to Salvador Fuentes, who was refused treatment at the Ventura Urgent Care Center for a laceration he sustained from broken glass while washing dishes at his home. Mr. Fuentes telephoned the clinic to get directions, and informed the clinic staff that he was HIV+, and was told he could receive care there.

But upon arriving at the clinic, a doctor told Mr. Fuentes that he would not be treated for his wound. Indignant, Mr. Fuentes demanded that the doctor put this refusal in writing. Dr. Thelma Reich then wrote on a piece of paper: "This is to inform you that I do not treat patients with HIV in our clinic. Advised to go to County ER for treatment." The doctor contended that she was potentially at risk from the patient's blood. Had the matter gone to trial, it seems clear that Mr. Fuentes would have prevailed notwithstanding the doctor's perception that she would have been at medical risk.

The ADA covers situations in which you have been discriminated against in employment or in public accommodations based on a disability, which is defined as a physical or mental impairment that substantially limits a major life activity. (Recently the ADA was held to apply to a woman who claimed she was being discriminated against because of obesity, and the court held that morbid obesity defined as at least 100 pounds overweight could be deemed to be a "perceived" disability even though it might not limit the employee's activities.)

Many people still have no clue about what the ADA is all about, so they may not know that certain acts of discrimination may be illegal. If you think you have been discriminated against in employment on the basis of disability, you should contact the US Equal Employment Opportunity Commission (EEOC). A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a state or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected.

To file a charge of discrimination under the ADA, contact your nearest EEOC field office. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorney's fees. Charges may be filed in person, by mail or by telephone by contacting the nearest EEOC office. To preserve the ability of EEOC to act on your behalf and to protect your rights to file a private lawsuit, you must act promptly. EEOC may file a lawsuit on your behalf if it finds reasonable cause to believe that discrimination occurred and conciliation efforts fail or are unavailing. An individual may file a private suit within 90 days of receiving a notice of right-to-sue from EEOC.

EEOC will interview you to obtain as much information as possible about the alleged discrimination. If all legal jurisdictional requirements are met, EEOC would then notify the employer about the charge. An investigation would take place involving the employer, any witnesses who have direct knowledge of the alleged discriminatory act, as well as other potentially aggrieved persons.

If the evidence shows there is no reasonable cause to believe discrimination occurred, there would be no further EEOC action, but you could exercise the right to bring private court action.

If the evidence shows there is reasonable cause to believe discrimination occurred and conciliation fails, EEOC will consider the case for litigation and, if approved, a lawsuit would be filed in federal district court on behalf of the charging party(ies). Most charges are conciliated or settled, making a court trial unnecessary.

(John Alan Cohan is an attorney specializing in wills, trusts and probate. He welcomes your calls at 800.255.1529 or 310.557.9900.)
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