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Lambda AIDS Docket

AIDS-Related Discrimination

Fall 1997

A note from TheBody.com: Since this article was written, the HIV pandemic has changed, as has our understanding of HIV/AIDS and its treatment. As a result, parts of this article may be outdated. Please keep this in mind, and be sure to visit other parts of our site for more recent information!

Employment

John Doe v. Chicago Board of Education, et al. (Federal Court, Illinois)

NO CHANGE. COMPLAINT FILED. When our original "John Doe" client applied to be a teacher in the Chicago Public Schools, the school district application asked his HIV status. After Doe confirmed that he has AIDS, his physician was required to complete an HIV-specific questionnaire that inquired about Doe's treatments, T-cell count, any opportunistic infections, as well as the manner in which he was exposed to HIV. In addition, Doe was required to submit to physical and psychiatric examinations every four months, a requirement imposed only on employees with HIV.

Lambda demanded that the Chicago Board of Education eliminate inappropriate health-related and HIV-specific inquiries and physical and psychiatric monitoring of HIV-positive applicants. In response, the board changed its official AIDS policy to eliminate the special medical and psychological examinations and reporting imposed only on HIV-positive applicants.

In September 1996, in response to Lambda's continuing criticisms of the application procedure for teachers, the Board further amended its medical information form to eliminate any specific reference to HIV. However, the Board continues to require a physical examination and submission of medical information (ranging from whether the applicant has "deformities" or venereal disease to whether and why the applicant takes any medications) as part of its teacher application process.

Despite Lambda's efforts to eliminate unlawful pre-employment medical inquiries, and despite the repeated applications and calls to the Board of Education by the case's "John Doe," who first applied for employment two years ago and was forced to disclose his HIV status at that time, the Board refused to process his application and continued to require additional medical information from him. Consequently, in April 1997, Lambda filed a complaint in federal court against the Chicago Board of Education and individual officials responsible for the particular policies and practices at issue. Settlement negotiations are underway.

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Heather Sawyer is working with cooperating attorney and Lambda Board member Cynthia Hyndman, with assistance from Catherine Hanssens.


Bell v. Wells Fargo (California)

APPELLATE BRIEFS FILED. This case challenges a state court's use of a doctrine called judicial estoppel to dismiss employment discrimination claims of people with HIV who have been fired or forced from their jobs. The doctrine was created to prevent parties from abusing the judicial system, trying to "have it both ways" by swearing to completely different positions in related court proceeding. Courts have misused judicial estoppel to conclude that an employee whose employer refuses or discontinues a reasonable accommodation cannot maintain an action for violation of the Americans with Disabilities Act if the employee also filed for disability benefits.

Andrew Bell, whose employer previously had accommodated his HIV-related disability with a four-day work week, including one day of telecommuting, was exceeding work requirements and receiving favorable evaluations. When a new management team revoked this accommodation, Bell couldn't hold his job. Unable to work without an accommodation that allowed him to limit his travel and office hours, Bell applied, and qualified for, disability benefits. The trial court concluded that Bell's receipt of disability benefits barred him from claiming protection under California's Fair Employment and Housing Act, which prohibits discrimination against those with disabilities and requires reasonable accommodations similar to the ADA. The court considers his application for disability to defeat his assertion that he is a person who is "able to perform the essential functions of the job" he lost. This issue is of increasing importance to people with HIV, who may be refused the flexibility they need in their work schedules to accommodate their health needs.

Lambda submitted an amicus brief in support of Bell's interlocutory appeal which was denied. In early July 1997, Lambda filed an amicus brief, joined by the AIDS Legal Referral Panel, the Los Angeles Center for Law and Justice and the Western Law Center for Disability Rights, in support of Bell's appeal of the trial court's dismissal of his discrimination claim. Myron Quon, Catherine Hanssens, and Jon Davidson authored Lambda's amicus brief.


Employment-Related Benefits

Peter Castellano, et al. v. City of New York (Federal Court, New York)

NO CHANGE. AWAITING DECISION. This case represents the first time the Second Circuit Court of Appeals will consider whether former employees who qualify for employment-related disability benefits have standing as "qualified individuals with disabilities" to sue under the Americans with Disabilities Act when these benefits are allocated in a discriminatory fashion. The plaintiffs are a group of retired New York City police officers who allege that the practice of providing supplemental payments in addition to the basic pension benefits to police who retire after twenty years of service but not to those who are forced to retire earlier because of a disability, violates the ADA and the Rehabilitation Act.

While we took no position on the merits on these individuals' specific claims, we participated because of the great significance of the issue raised. Lambda joined in an amicus brief that included the American Foundation for AIDS Research, the ACLU, and several other disabilities and employment rights organizations. Catherine Hanssens assisted on a brief drafted by New York Lawyers for the Public Interest (NYLPI) cooperating attorney Robert Schonfeld, and NYLPI attorney Ed Copeland.


Health Care Workers

Mauro v. Medical Center (Federal Court, Michigan)

NO CHANGE. AWAITING DECISION. William Mauro was a surgical technician for Borgess Medical Center in Kalamazoo, Michigan. The medical center removed Mauro from his position after rumors surfaced that he had HIV.

Mauro filed suit in federal court under the Americans with Disabilities Act and the Rehabilitation Act. The district court granted summary judgment in favor of the hospital. Despite the consensus that the risk of HIV transmission from Mauro to patients was extremely small, the court concluded that the presence of any risk, however remote, of Mauro transmitting HIV to surgical patients made him a "direct threat" to these patients and therefore not "otherwise qualified" to perform his duties as required by the ADA. Mauro brought his case to the Sixth Circuit Court of Appeals.

Without explanation the court denied our motion to participate as amicus almost eight months after it was filed along with our brief, and subsequently denied our motion for reconsideration. Oral argument was held in October 1996. Catherine Hanssens and former AIDS Project Staff Attorney Barry Taylor prepared Lambda's amicus brief.


Insurance

Galanty v. The Paul Revere Life Insurance Company (California)

OPENING BRIEF ON APPEAL FILED. This case attacks insurance industry practices that seek to deny disability benefits to people with HIV.

Mark Galanty was HIV positive when Paul Revere sold him a disability insurance policy. For the following five years, Galanty had no symptoms of illness, continued to work, and paid premiums under the policy until a problem with his hands caused him to stop working as a court reporter. The policy included an "incontestability" clause (required by law in California) that prohibits the company from denying claims for disabilities that start more than two years after the policy is issued. To get around that clause, the insurance company claimed that Galanty's disabling condition was present when he bought the policy, because he was HIV positive. But, Galanty continued to work long after his infection with HIV. His disabling sickness, AIDS, did not manifest itself or cause an inability to work until five years after he bought the policy. Particularly in light of the ever-lengthening period of health and productivity that those with HIV can expect, it is very important to reverse the trend toward "disabling" those with HIV from building future security. The lawsuit includes claims for breach of contract and bad faith insurance practices. In December 1996, Los Angeles Superior Court Judge David Workman, describing this as a question of "first impression" in California, granted Paul Revere's motion for summary judgment, dismissing this case. We filed Galanty's opening brief on appeal in August 1997.

Jon Davidson is working on the case with cooperating attorneys Chris Caldwell, Lee Michaelson, and former Lambda Staff Attorney Mary Newcombe, all of the Los Angeles firm of Hedges & Caldwell.


Doe v. Chubb Sovereign Insurance (Federal Court, California)

NO CHANGE. DISCOVERY ONGOING. This case raises the question of whether insurance companies are subject to the anti-discrimination requirements of the Americans with Disabilities Act, as well as whether an individual can be denied life insurance because her partner is HIV positive.

In November 1996, Federal District Court Judge Vaughn Walker rebuffed Chubb's efforts to have this case dismissed, ruling that the ADA does prohibit unjustified discrimination in insurance underwriting against individuals who are associated with people living with HIV.

Jon Davidson is working on the case with Cooperating Attorney Timothy Cahn of the Oakland, California, law firm known as Legal Strategies Group.


Public Accommodations

Baksh v. Human Rights Commission (Illinois)

APPEAL BRIEFED. In this case, a dentist appeals the Illinois Commission on Human Rights' ruling against him due to his refusal to treat, and subsequent referral of, a patient with AIDS. In June 1996, the Commission issued its decision against dentist Karim Baksh, finding that the referral of an HIV-positive patient for services that he could have provided violated the Illinois Human Rights Act. That ruling was significant in stating that the Act covers dental and medical offices as places of public accommodation that cannot discriminate against persons with disabilities.

Dr. Baksh appealed the Commission's ruling, arguing, among other things, that dentists are not covered by the Act because "private" dental offices are not places of public accommodation, and that his refusal to treat an HIV-positive patient and referral of that patient to another dental clinic was appropriate treatment and not unlawful.

Lambda and the Chicago Lawyers Committee for Civil Rights Under Law, Inc. filed an amicus brief on behalf of the patient, who died prior to issuance of the Commission's final ruling and whose estate is represented by Roger Leishman of the ACLU of Illinois. Heather Sawyer prepared the amicus brief.


Nicholas Knapp v. Northwestern University (Federal Court, Illinois)

PETITION FOR U.S. SUPREME COURT REVIEW DENIED. The U.S. Supreme Court refused to review this case, which questioned what constitutes meaningful judicial review of a decision to exclude a person with a disability from a program. The Seventh Circuit Court of Appeals, which denied Knapp's request for rehearing en banc, held that in cases involving a risk of "serious harm or death" courts must defer to a defendant's determination of the significance of the risk, "regardless whether conflicting medical opinions exist."

Knapp was a star high school athlete who filed suit under the Rehabilitation Act after Northwestern University banned him from its basketball team because he has a heart condition. The Seventh Circuit denied Lambda and Equip for Equality, Inc., a Chicago-based disability rights organization, permission to file an amicus brief urging reconsideration of the unfortunate ruling. The Supreme Court's refusal to review his case effectively ends Knapp's legal battle to play at Northwestern. But, Knapp has transferred to Northeastern Illinois University and is eligible to pay basketball next season. Heather Sawyer worked on this case with Barry Taylor, an attorney at Equip for Equality.


Doe v. Illinois Masonic Medical Center, Dr. Martin Greenberg, and Humana Health Care Plans (Illinois)

DEPARTMENT OF JUSTICE INVESTIGATION PROCEEDING. When our client, John Doe, refused to submit to HIV testing that was not medically necessary for his treatment, his previously scheduled surgery was canceled and he was informed that Dr. Greenberg would not operate until Doe had been tested. After considerable effort to clarify the reasons for the testing, and after having consistently been told that the testing was necessary to ensure the safety of Dr. Greenberg and his staff, Doe contacted Lambda.

In negotiations with Dr. Greenberg, Illinois Masonic Medical Center, and Humana Health Care Plans, Lambda requested that all parties provide treatment to Doe without requiring or conditioning treatment on his submission to unnecessary HIV testing and also requested written confirmation of their policies regarding HIV testing. In response to Lambda's request, Dr. Greenberg, Illinois Masonic, and Humana Health Plans indicated that they would treat Doe in the future but refused to clarify their policies and practices regarding HIV testing generally.

To ensure that neither John Doe nor any other patient would be forced to undergo unnecessary HIV testing as a precondition to receiving medical care in the future, Lambda filed a complaint with the Department of Justice in May 1997. Investigation of that complaint is underway.

Heather Sawyer is working on this matter.


Patient Autonomy: The Right to Refuse Treatment, the Right to Die

Dennis Vacco v. Timothy Quill, M.D. et al. and State of Washington v. Glucksberg (U.S. Supreme Court)

LOSS. On June 26, 1997 the U.S. Supreme Court decided these two cases, reversing the landmark Court of Appeals decisions which invalidated laws in New York and Washington which criminalize physician-assisted suicide.

In March 1996, the Ninth Circuit Court of Appeals had concluded in Compassion in Dying v. State of Washington (now titled State of Washington v. Glucksberg) that there is a constitutionally protected liberty interest in determining the time and manner of one's own death. It then ruled that a Washington state law prohibiting physicians from prescribing life-ending medication for use by terminally ill, competent adults violates this fourteenth amendment due process right.

The Second Circuit Court of Appeals, in Quill v. Vacco, invalidating New York's similar law on a more narrow ground, concluded that the statute violated the equal protection rights of mentally competent, terminally ill persons. Given that those on life support systems are permitted to hasten their deaths by having their doctors take them off life support, the court found no reason to prohibit those in the final stages of their illnesses who are not on life support from making the same choice by requesting lethal medication from their physicians.

In opinions authored by Chief Justice Rehnquist, the Supreme Court rejected the argument that the state statutes outlawing assisted suicide infringed any fundamental right, and concluded that, because all competent persons are entitled to refuse lifesaving medical treatment and no one is permitted to assist a suicide, that there was no different treatment of similarly situated persons to trigger the Equal Protection Clause. Although all nine justices agreed with the result, and the observation that this result "permits the debate [about assisted suicide] to continue, as it should in a democratic society," a majority of the justices made it clear that, after public debate and legislative consideration have run a reasonable course, they might rule differently in a different case at a later time.

Lambda had joined amicus briefs in both cases at the court of appeals. Catherine Hanssens assisted Andrew Batavia of McDermott, Will & Emery with preparation of a separate amicus brief filed in the U.S. Supreme Court in these cases on behalf of Lambda, Gay Men's Health Crisis, and five prominent persons with disabilities.


McIver v. Krischer (Florida)

LOSS. This case is a state court parallel to the federal Quill and Glucksberg physician-assisted suicide cases recently addressed by the U.S. Supreme Court. A terminally ill man with AIDS, Charles Hall, requested that his physician be permitted to assist him at an appropriate time in the future in expediting Hall's death when his suffering became unbearable and irreversible, without risking criminal prosecution of his doctor. Unlike the federal cases, Hall centered his claim on the Florida state constitutional right to privacy. On July 17, 1997, the Supreme Court of Florida reversed the state court of appeal, relying to a significant degree on the historical prohibition against suicide, the objections to physician-assisted suicide voiced by the American Medical Association and state medical associations, and the belief that the issue was one which should be resolved by legislators rather than judges.

In a dissenting decision, Chief Justice Kogan expressed the view that notions about death and suicide from an earlier era, before the basic processes of disease were understood, "reflec[t] a cruelty we cannot take lightly." Finding the court's distinction between "active" death by a "death producing agent" and "passive" death by "natural causes" artificial and unworkable in the context of today's medicine, Chief Justice Kogan refused "in good conscience" to agree with the majority's conclusion that the state had an interest more compelling than the privacy interest of the patient, Charles Hall, in controlling "the way in which he confronts his own personal fate."

Lambda joined in an amicus brief filed in the Florida Supreme Court on behalf of disabled individuals, which focused in part on the evolution of advocacy on behalf of people with HIV/AIDS as a struggle for equality and the right to autonomy in critical medical decision-making.

Catherine Hanssens assisted Andrew Batavia of McDermott, Will & Emery on the brief, which also included the Florida AIDS Action Council, the PWA Coalition of Broward County, Florida, and seven individuals living with disabilities.


Criminal Law

State of Mississippi v. Marvin McClendon (Mississippi)

NO CHANGE. AWAITING DECISION. In October 1994, two gay men, Robert Walters and Joseph Shoemaker, were shot and killed execution-style in Laurel, Mississippi. Upon arrest, Marvin McClendon confessed to the murders, claiming that the victims sought to sexually assault him. The court permitted the defense to conduct post-mortem HIV tests on the victims, upon defense counsel's insistence that positive results would be "equivalent to [the victims'] carrying a loaded gun."

Lambda filed a brief in support of the Jones County District Attorney's pre-trial motion to exclude any evidence related to the victims' HIV status or sexual orientation. At the February 1995 trial, the judge ruled that the HIV status of the victims was relevant, and permitted defense counsel to introduce as evidence the test results of the two men. Despite this, the jury rejected the justifiable homicide defense and found the defendant guilty on two counts of murder. The defendant lost his motion for a new trial and subsequently appealed.

After consultation with Lambda, the Jones County district attorney filed a cross-appeal on the admission of the victims' HIV test results. In mid-December, the state attorney general filed its appellate brief, joined by an amicus brief prepared by Catherine Hanssens.


State v. Jimmy Bird (Ohio)

BRIEF FILED IN OHIO SUPREME COURT. In 1993, Jimmy Bird was arrested for disorderly conduct. During the arrest, he allegedly spit on one of the police officers; Bird claims he was maced and that the spitting was involuntary. On the advice of counsel, he pled no contest to the charge of felonious assault, which the court accepted on the prosecution's assertion that the spit of an HIV-positive person is a "deadly weapon." Bird received a three-to-15 year sentence. To date he has served two years of this sentence.

In support of Bird's request that the Ohio Supreme Court hear an appeal of his case, Lambda filed an amicus brief focusing on the current state of medical knowledge on the risk of HIV transmission through spitting (i.e., safely characterized as no quantifiable risk), and arguing that a conviction such as Bird's cannot stand when the prosecution has failed to allege sufficient facts (in this case, actions that pose any threat of serious bodily injury) to establish the essential elements of the crime with which a defendant has been charged.

In May 1997, the court granted Bird's request to appeal. Lambda filed an additional amicus brief in Bird's appeal to the Ohio Supreme Court in August 1997. Lambda's briefs in this case were prepared by Heather Sawyer.


Related Stories

More on HIV/AIDS-Related Discrimination Cases

A note from TheBody.com: Since this article was written, the HIV pandemic has changed, as has our understanding of HIV/AIDS and its treatment. As a result, parts of this article may be outdated. Please keep this in mind, and be sure to visit other parts of our site for more recent information!



  
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