HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/SANCHEZ.ASC

Text File | 1993-01-14 | 23KB | 608 lines

/*  This case is reported in 59 EPD 41705. In this case, the
plaintiff alleged that she was fired due to her employer
erroneously believing that she was infected with HIV. This case
finds that even the erroneous perception that someone is
handicapped by carrying AIDS is a disability, since the harm is
as real as if the person has the disease. */

Dorene Sanchez, Plaintiff-Appellant

v.

Kostas Lagoudakis dba Paradise Family Restaurant, Defendant-
Appellee.

Michigan Supreme Court.

August 4, 1992.



Before the entire Court.



LEVIN, J.: Defendant Kostas Lagoudakis operates the Paradise
Family Restaurant in Coldwater. In November, 1987, he hired
plaintiff Dorene Sanchez as a waitress. Shortly thereafter, a
rumor circulated that Sanchez had acquired immunodeficiency
syndrome, AIDS. It appears that some patrons refused to allow
Sanchez to wait on them.



On December 8, 1987, Lagoudakis informed Sanchez that she could
not continue to work at the restaurant until she secured medical
evidence that she was disease free.[1] Sanchez obtained a blood
test at the county Health Department and learned that the result
was negative about a month later. She maintains, however, that
she was so humiliated by the experience that she had to leave
Coldwater and return to Marshall. [2]



Sanchez commenced this action against her employer, Lagoudakis,
[3] claiming that his actions violated the Handicappers' Civil
Rights Act. [4] After some discovery, both parties filed motions
for summary disposition.



The circuit court granted Lagoudakis' motion, finding that
because the complaint alleged, and discovery tended to show, that
Sanchez did not in fact have AIDS, she did not have a handicap as
defined by the act, and thus had failed to state a claim under
the act. The court conditioned the dismissal of the case,
however, on Lagoudakis' paying lost wages for the time between
Sanchez' suspension and her receipt of the negative test results.
The court assessed some costs and attorney fees against
Lagoudakis. [5] The Court of Appeal affirmed. [6] We reverse, and
remand for further proceedings.



                                I



AIDS as Handicap



The circuit judge granted summary disposition because he was of
the opinion that the act cannot support a claim a discriminatory
treatment based on an employer's erroneous perception that an
employee has AIDS.



There are two parts to the question presented: (1) can AIDS be
found to be a handicap under the act?; (2) is the mere perception
of a handicap, even if erroneous, actionable under the act?



                                A



Although this is the first time this Court has confronted the
issue whether AIDS can be a handicap under the act, courts in
California, New York and New Jersey, have considered  the
question  in  construing discrimination statutes. These court
have all concluded that AIDS is a handicap for civil rights
purposes. [7]



The United States Courts of Appeals for the Ninth [8] and
Eleventh [9] Circuits, and the United States District Courts for
the Eastern District of Pennsylvania, [10] and the Central
District of California, [11] have held that AIDS is a handicap
under anti discrimination statutes.



Section 103(b)(i) of the act, [12] in effect at the time of
Sanchez' claim, [13] defined "handicap" as "a determinable
physical or mental characteristic of an individual or a history
of the characteristic which may result from disease, injury,
congenital condition of birth, or functional disorder which
characteristic  .. is unrelated to the individual's ability to
perform the duties of a particular job or position, or is
unrelated to the individual's qualifications for employment or
promotion."



We are persuaded that a person with AIDS can be found to be
handicapped. On remand, the evidence may provide support for a
finding that a person with AIDS has a "physical characteristic"
because such persons have a severely weakened immune system, an
inability to fight disease that persons not so infected can
withstand. Further, this characteristic may be "determinable"
because it can be identified by blood testing. Finally, this
characteristic may "result from disease" because the cause of the
breakdown of an AIDS-infected person's immune system is the
disease known as AIDS.



In the instant case, the circuit court did not reach either the
issue whether AIDS can be a determinable physical or mental
characteristic resulting from disease or the issue of
"unrelatedness." having concluded that the act precluded claims
based on the perception of handicap. [14]



                                B



                    (Perception of Handicap)



Having determined that AIDS can be found to be a handicap under
the act, we turn to the question whether the mere perception of a
handicap, even if erroneous, is actionable under the act.



Section 202(1)(b) of the act [15] provided that an employer shall
not "[d]ischarge or other-wise discriminate against an individual
with respect to compensation or the terms, conditions, or
privileges of employment, because of a handicap that is unrelated
to the individual's ability to perform the duties of a particular
job or position." (Emphasis added.)



It appears from this wording that the act prohibited employers
from acting against employees on the basis of a handicap within
the statutory definition. The focus of the act was the basis of
the employer's conduct, the employer's belief or intent- and not
the employee's condition. If the employer acts on a belief that
the employee has a handicap, and subsequently discharges or
otherwise discriminates against the employee on the basis of that
belief, it is inconsequential whether the employee actually has
the handicap because, in either hypothesis, the employer has
undertaken the kind of discriminatory action that the act
prohibits.[16]



The Civil Rights Commission has consistently construed the act to
protect persons who suffer discrimination motivated by an
employer's erroneous perception of a handicap. [17] The
commission recently extended this construction to explicitly
include the perception of AIDS. [18]



The Court of Appeals has concluded that the act proscribes
discrimination motivated by an employer's erroneous perception of
a handicap. [19]



Courts in other jurisdictions with discrimination laws similar to
the act have consistently construed their statutes to protect
persons perceived to be handicapped. The United States Supreme
Court, [20] as well as the United States Court of Appeals for the
Fifth Circuit [21] and the United States District Courts for the
Eastern District of Pennsylvania [22] and the District of Hawaii,
[23] have construed the federal Rehabilitation Act [24] to
include employers' perceptions of handicap, even in instances
where the employee in fact had no handicap. [25]



The Supreme Courts for the States of Washington,[26] Wisconsin
[27] and Utah,[28] the Connecticut Human Rights Commission,[29]
the United States District Court for the Southern District of
Florida, [30] and the New Jersey Superior Court, [31] have all
concluded that handicap discrimination statutes prohibit
discrimination based on mere perception of handicap. [32]



The Legislature, in 1990, amended the definition of "handicap" to
include "(being regarded as having" a handicap. [33] Clearly,
under the current version, when the act, in describing prohibited
behavior, speaks of discrimination by an employer against an
individual because of a handicap, this include an individual who,
while not handicapped, is regarded as having a handicap.

/* The Court cites so much other authority so that it can say in
effect, even if the legislature had not changed the law, it would
still have found that the false perception that a person was
suffering from a handicap is sufficient for protection under the
law. */

                               IV



Because AIDS can be found to be a handicap under the
Handicappers' Civil Rights Act, and because the act prohibits
discriminatory treatment, even when based on erroneous
perception, we reverse the decision of the Court of Appeals and
remand this case for further proceedings.



On remand the circuit court shall determine whether the condition
Sanchez was perceived to have was a determinable physical
characteristic resulting unrelated to her ability to perform the
duties of her job or her qualifications for employment or
promotion. No record is presented on which we might express an
opinion.



     Reversed and remanded to the circuit court.



[1] Sanchez claims that Lagoudakis communicated the AIDS
allegation to other employees and customers of the restaurant.



[2] Lagoudakis version is that Sanchez was welcome to return to
work, but that she simply chose to return to Marshall to live
with her husband.



[3] Sanchez named a coemployee, allegedly responsible for the
rumor, as an additional defendant.



[4]MCL 37.1101 et seq.; MSA 3.550 (101) et seq.



[5] The order of dismissal entered on February 22, 1989, awarded
Sanchez lost wages and tips of $491.25, costs a $316.24, and
attorney fees of $500. Our disposition makes it unnecessary to
consider the propriety of this award.



[6] 184 Mich App 355; 457 NW2d 373 (1990). This Court then
granted both parties' applications for leave to appeal, 437 Mich
1035(1991).



[7] Raytheon Co v California Fair Employment & Housing Comm,  212
Cal App 3d 1242; 261 Cal Rptr 197 (1989) (AIDS was a physical
handicap under the California Fair Employment and Housing Act
(Cal Gov Code 12900 et seq.(the act does not offer a restrictive
definition of "handicap," but the California Supreme Court has de
fined the term to include a "physical" condition that either
presently or eventually impairs a person's ability to do his job,
see American Nat'l Ins Co v Fair Employment Housing Comm, 32 Cal
3d 603, 608-610; 186 Cal Rptr 345; 651 P. 2d 1151(1982), and Cal
Gov Cede 12926); Barton v New York City Comm on Human Rights, 140
Misc 2d 554; 531 NYS2d 979 (1988) (AIDS patients were physically
handicapped within the meaning of  8108 of the New York City
Administrative Code); Poff v Caro, 228 NJ Super 370; 549 A2d 900
(1987) (a person suffering from AIDS clearly has a severe
handicap within the meaning of the New Jersey Law Against
Discrimination (NJ Stat Ann 10:5-1 et seq.) The statute defines
"handicapped" as "suffering from physical disability, infirmity,
malformation or disfigurement which is caused by bodily injury,
birth defect or illness including epilepsy, and which shall
include, but not he limited to, any degree of paralysis,
amputation, lack of physical coordination, blindness or visual
impediment, deafness or hearing impediment, muteness or speech
impediment or physical reliance on a service or guide dog,
wheelchair, or other remedial appliance or device, or from any
mental, psychological, or developmental disability resulting from
anatomical, psychological, physiological or neurological
conditions which prevents the normal exercise of any bodily or
mental functions or is demonstrable, medically or
psychologically, by accepted clinical or laboratory diagnostic
techniques," NJ Stat Ann 10:5-5(q])



[8] Chalk v United States Dist Court, 840 P. 2d 701 (CA 9,1988)
(reversing the denial of a preliminary injunction seeking
reinstatement of teacher with AIDS to classroom duties under the
federal Rehabilitation Act (29 USC 701 et seq.] the act defines
"handicap" as "physical or mental impairment which substantially
limits one or more of such person's major life activities, has a
record of such an impairment, or regarded as having such an
impairment," 29 USC 706(8).



Martinez v School Bd of Hillsborough Co, 861 F2d 1502, 1506 (CA
11, 1988) (AIDS qualifies as a handicap under the federal
Rehabilitation Act).



Cain v Hyatt, 734 Fed. Supp. 671 (E.D. Pa. 1990) (AIDS is a
handicap within the meaning of the Pennsylvania Human Relations
Act [43 Pa Stat Ann 951 et seq.] the act defines "handicap" as "a
physical or mental impairment which substantially limits one or
more major life activities," 16 Pa Code 44.4(4)(i), interpreting
the act, 43 Pa Stat Ann 955).



Thomas v Atascadero Unified School Dist, 663 F Supp 376, 381 (CD
Cal, 1986) (a child with AIDS is handicapped under the federal
Rehabilitation Act)



Effective June 25, 1990, this act was amended and the term
"handicap" is now defined by MCL 37.1103(e); MSA 3.550(103)(e) to
mean:



"1 or more of the following:



"(i) A determinable physical or mental characteristic of an
individual, which may result from disease. injury, congenital
condition of birth, or functional disorder, if the
characteristic: . . . substantially limits 1 or more of the major
life activities of that individual and is unrelated to the
individual's ability to perform the duties of a particular job or
position or substantially limits 1 or more of the major life
activities of that individual and is unrelated to the
individual's qualifications for employment or promotion.



"(ii) A history of a determinable physical or mental
characteristic described in subparagraph (i).



"(iii) Being regarded as having a determinable physical or mental
characteristic described in subparagraph (i)." (Emphasis added.)



[14] This opinion should not be read as addressing whether. on
these facts, AIDS is unrelated to Sanchez' job as a waitress.



[15] MCL 37.1202(1)(b); MSA 3.550(202)(1)(b).



[16] The purpose of the act is to prohibit employers from
discriminating on the basis of handicap. It would not he
consistent with that purpose to relieve employers who so
discriminate of liability if, although they acted in a prohibited
discriminatory manner, it later turns out that their belief was
in fact erroneous. The key as far as the act is concerned is that
the employer acted on the belief of a handicap.



[17] See, e.g. Dep't of Civil Rights ex rel Lanphar v. A & C
Carriers. MDCR No. 36140-El (December 18, 1979) ("[e]ven if
claimant did not, in fact, have spondylolysis [a back condition],
respondent failed or refused to hire claimant because of
respondent's perception that he had such a condition, and such
failure or refusal to hire based upon a perception of a handicap
is a violation of [the HCRA]"). See also Dep 't Civil Rights ex
rel Roznowski v Bay City Fire Dep't MDCR No. 71346-El (December
14, 1987).



[18] On August 25, 1986, the Civil Rights Commission issued a
policy statement providing the following construction of the act:



"The [Department of Civil Rights] will accept and process
complaints from persons who believe they have been discriminated
against in employment, housing, public accommodations, public ser
vice, and education because of AIDS or a related condition or the
perception of AIDS." (Emphasis added.)



[19] See Dep't Civil Rights ex rel Lanphar v A & C Carriers, 157
Mich App 534, 537; 403 N.E. 2d 586 (1987) (per curiam) ("[A]n
individual claiming protection under the act is not required to
allege and prove himself or herself to be, in fact, handicapped
in order to be eligible for the relief provided by the act. It is
only necessary for a claimant to show that an employer, believing
or suspecting such claimant to be handicapped, committed one of
the employment practices prohibited by the act").



See also Bay Fire Dep 't v Dep 't Civil Rights ex rel Roznowski,
182 Mich App 145; 451 NW2d 533 (1989) (per curiam ) (Reilly. J.,
concurring).



[20] Southeastern Community College v Davis, 442 US 397,405, n 6;
998 S.Ct. 2361; 60 L Ed 2d 980 (1979) ("A person who has a record
of, or is regarded as having, an impairment may at present have
no actual incapacity at all. Such a person would be exactly the
kind of individual who could be 'otherwise qualified' to
participate in covered programs [under the federal Rehabilitation
Act]").



See also School Bd of Nassau Co v Arline, 480 US 273; 107 S.Ct.
1123; 94 L Ed 2d 307(1987).



21 Carter v Orleans Parish Public Schools, 725 F2d 261, 26:3 (CA
5, 1984) ("Unimpaired persons regarded as having an impairment
enjoy statutory protection (under the federal Rehabilitation Act)
because the erroneous denial of admission into regular classes is
one of the abuses Congress sought specifically to correct").



[22] Local 1812 v United States Dep't of State, 662 F Supp 50, 54
(D DC, 1987) ("Persons who carry HIV may be deemed handicapped
[under the federal Rehabilitation Act] ... if they are perceived
to be handicapped").



[23] E E Black, Ltd v Marshall, 497 F.Supp. 1088, 1098 (D.
Hawaii, 1980) (recognizing that the provision of the federal
Rehabilitation Act and regulations promulgated pursuant thereto
define "handicapped individual" to include a person who is merely
regarded as having such an impairment).



[24] 29 USC 701 et seq; USC 706(8)(B), 793, and 794.



[25] See also cases cited in 3 Sullivan, Zimmer & Richards,
Employment Discrimination,  25.2.3, pp 11-13. Because the
recently enacted Americans With Disabilities Act defines
"disability" similarly to the definition of "handicap" under the
federal Rehabilitation Act, it appears that discrimination based
on an employer's perception of disability, even if the employee
in fact has no disability, is actionable under this newer law as
well.



[26] Reese v Sears, Roebuck & Co, 107 Wash 2d 563, 573; 731 P2d
497 (1987) ("In fact, the employee need not even be handicapped
to bring an action under (the Washington State Law Against
Discrimination]"-the statute makes it "an unfair practice for any
employer ... (tlo discharge or bar any person from employment
because of ... the presence of any sensory, mental or physical
handicap," Wash Rev Code Ann 49.60.180), citing Barnes v
Washington Natural Gas Co, 22 Wash App 576; 591 P2d 461(1979) (an
employee could maintain an action against his employer under the
Washington State Law Against Discrimination on the basis of the
employer's erroneous  perception  that  the  plaintiff was
handicapped).



The Barnes court elaborated on its reasoning:



"It would defeat legislative purpose to limit the handicap
provisions of the law against discrimination to those who are
actually afflicted with a handicap, such as epilepsy, and exclude
from its provision those perceived as having such a condition.
Prejudice in the sense of a judgment or opinion formed before the
facts are known is the fountainhead of discrimination engulfing
medical disabilities which prove on examination to be unrelated
to job performance or to be nonexistent. The intent of the law is
to protect workers against such prejudgment based upon
insufficient information. The law's application, therefore,
should not be limited to those who actually have handicaps,
excluding those who are discriminated against in the same way
because they are only thought to have handicaps.... Public
policy, expressed by the Act to eliminate and prevent
discrimination in employment, requires protecting from
discriminatory practices both those perceived to be handicapped
as well as those who are handicapped." Id., pp 582-583.



[27] Dairy Equipment Co v Dep't of Industry, Labor & Human
Relations, (22 EPD 30,809] 95 Wis 2d 319, 330; 290 NW2d 330
(1980) ("It would be both ironic and insidious if the legislative
intent in providing the protection of the [Wisconsin] Fair
Employment Act (Wis Stat Ann 111.32(8)] were afforded to persons
who actually have a handicap ... but the same protection is
denied to those whom employers perceive as being handicapped"
(emphasis in original although the act does not define
"handicap," the Wisconsin Supreme Court has defined the term to
mean "a disadvantage that makes achievement unusually difficult;
esp.: a physical disability that limits the capacity to work,"
Chicago. M, St P & P R Co v Dep't of Industry, Labor & Human
Relations, 62 Wis 2d 392,398; 215 NW2d 443 (1974]).



[28] Salt Lake City Corp v Confer, (33 EPD 34,284] 674 P2d 632
(Utah, 1983) (perceived impairment could violate the Utah Anti-
Discrimination Act (Utah Code Ann 34-35-1, et seq.]-the act
defines "handicap" as "a physical or mental impairment which
substantially limits one or more of a person's major life
activities,", Utah Code Ann 34.35-2(9]).



[29] CHRC v Respondent, Connecticut Human Rights Comm, AIDS
Policy & Law, October 18, 1989, Case No. 86-10215 (discrimination
due to perception of AIDS violates the Connecticut Fair
Employment Practices law).



[30] Kelley v Bechtel Power Corp, 633 F Supp 927, 931, 932-933
(SD Fla, 1986) (a person who is perceived to be handicapped is
covered under the Florida Human Rights Act (Fla Stat Ann 760.01
et seq.] although the act does not define "handicap," the
definition adopted by the court is "[a] person with a handicap
does not enjoy, in some measure, the full and normal use of his
sensory, mental, or physical faculties"), id., p 931.



[31] Rogers v Campbell Foundry Co. 447 A2d 589 (1982), cert den
91 NJ 529 (1982) (perception of a handicap actionable under the
New Jersey Law Against Discrimination (NJ Stat Ann 10:5-1 et
seq.]).



See also Poff v Caro, n 7 supra, p 378 ("Reasonably interpreted,
the New Jersey Law Against Discrimination protects persons who
are discriminated against because they have AIDS and persons who
are discriminated against because they are perceived to have AIDS
or be potential victims of AIDS"), citing Andersen v Exxon, 89 NJ
483,495, n 2; 446 A2d 486(1982).



[32] Cf Brock v. Richardson, 812 F2d 121, 123-125 (CA 3, 1987)
(an employer's retaliation against an employee because of the
employer's mistaken belief that employee had invoked provisions
of the federal Fair Labor Standards Act (29 USC 201 et seq.] was
held actionable).



[33] See n 13.



[34] The 1990 amendment now defines "[u]nrelated to the
individual's ability" to mean that "with or without
accommodation, an individual's handicap does not prevent the
individual from performing the duties of a particular job or
position." MCL 37.1103(10; MSA 3.550(103(1).