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