Alameda County Municipal Code Ch. 6.24 Discrimination of the Basis of Aids

The board of supervisors finds and declares that discrimination against persons with AIDS and AIDS-related conditions exists in the county. Persons with AIDS or AIDS-related conditions are faced with discrimination in employment, housing, and business establishments. This discrimination cuts across all racial, ethnic, and economic lines and poses a substantial threat to the health, safety, and welfare of the community.

(Prior gen. code § 2-190.0)

The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it shall be apparent from the context that they have a different meaning.

"AIDS" means acquired immune deficiency syndrome (AIDS), AIDS related conditions (ARC), or any other medical condition which a person contracts as a result of having AIDS or ARC.

"A person who has AIDS or associated conditions" means anyone who has AIDS, as set out in the definition of "AIDS" in this section; anyone who is suspected of, or perceived as having such a condition; anyone who is believed to be at risk of contracting such a condition; or anyone who is believed to associate with persons who have AIDS.

"Business establishment" means any person or organization, which provides goods, services, or accommodations to the general public, provided, however, that an otherwise qualifying business which has membership requirements shall be subject to this chapter if its membership requirements consist: (1) only of payment of fees; or (2) of requirements under which five percent or more of the residents of the county could qualify; or (3) of an otherwise unlawful business practice.

"Employer" means any person regularly employing one or more persons, or any person acting as an agent of an employer, directly or indirectly; including the county.

"Employment agency" means any natural person, firm, corporation, partnership or other organization, association or group however organized.

"Labor organization" means any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.

(Prior gen. code § 2-190.1)

A. Unlawful Employment Practices. It shall be an unlawful employment practice for any person to do any of the following acts as a result of the fact, in whole or in part, that another person has AIDS or associated conditions, as that term is used in this chapter:

1. By an employer: To fail or refuse to hire or to discharge any individual; to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise and adversely affect his/her status as an employee;

2. By an employment agency: To fail or refuse to refer for employment any individual; or otherwise to discriminate against an individual;

3. By a labor organization: To exclude or expel from its membership or to otherwise discriminate against any individual; or to limit, segregate or classify its membership; or to classify or fail or refuse to refer for employment any individual in any way which would deprive or tend to deprive such individual from employment opportunities, or would limit such employment opportunities, or otherwise adversely affect his/her status as an employee or as an applicant for employment;

4. By an employer, employment agency or labor organization:

a. To discriminate against any individual in admission to, or employment in, any program established to provide apprenticeship or other training or retraining including any on-the-job training program,

b. To print, publish, advertise or disseminate in any way, or cause to be printed, published, advertised or disseminated in any way, any notice or advertisement with respect to employment, membership in, or any classification or referral for employment or training any such organization, which indicates as unlawful discriminatory act or preference.

B. Affirmative Defenses. The following constitutes affirmative defenses in any unlawful employment practice described in this section:

1. Nothing in this chapter shall be deemed to prohibit selection or rejection based upon a bona fide occupational qualification: A bona fide occupational qualification exists under this chapter where a defendant can demonstrate that the absence of AIDS as set out in the definition of "AIDS" in Section 6.24.020 of this chapter is reasonably necessary to the essence of the employer's business and that all or substantially all persons with AIDS as set out in the definition of "AIDS" in Section 6.24.020 of this chapter are unable to perform the duties of the position in question without harm to themselves or others;

2. Nothing in this chapter shall be deemed to prohibit selection, rejection, or assignment where, because a person actually suffers from AIDS, ARC or a related medical condition as set out in the definition of "AIDS" in Section 6.24.020 of this chapter, he/she is unable to perform his or her duties, or cannot perform such duties in a manner which would not endanger his or her health or safety or the health and safety of others;

3. Nothing in this chapter shall be deemed to prohibit selection or rejection where it can be demonstrated that the employer, employment agency or labor organization is unable to reasonably accommodate a person who suffers from AIDS, ARC or a related medical condition as set out in the definition of "AIDS" in Section 6.24.020 of this chapter, without undue hardship on the conduct of the employer's business.

(Prior gen. code § 2-190.2)

A. Unlawful Housing Practices. It shall be unlawful for any person to do any of the following acts as a result of the fact, in whole or in part, that a person has AIDS or associated conditions as that term is defined in this chapter:

1. To interrupt, terminate or fail or refuse to initiate or conduct any transaction in real property, including but not limited to the rental thereof; to require different terms for such transaction; or to falsely represent that an interest in real property is not available for transaction;

2. To include in the terms or conditions of a transaction in real property any clause, condition or restriction, which would discriminate against a person who has AIDS;

3. To refuse to lend money, guarantee the loan of money, accept a deed of trust or mortgage, or otherwise refuse to make available funds for the purchase, acquisition, construction, alteration, rehabilitation, repair or maintenance of real property; or impose different conditions on such financing; or refuse to provide title or other insurance relating to the ownership or use of any interest in real property;

4. To refuse or restrict facilities, services, repairs or improvements for any tenant or lessees;

5. To make, print, publish, advertise or disseminate in any way, or cause to be made, printed, published, advertised or disseminated in any way, any notices, statement or advertisement with respect to a transaction or proposed transaction in real property, or with respect to financing related to any such transaction, which unlawfully indicates preference, limitation or discrimination based on the fact that a person has AIDS or related medical conditions.

B. Exemptions.

1. Owner Occupied. Nothing in the chapter shall be construed to apply to the rental or leasing of any housing unit in which the owner or any member of his or her family occupies the same living unit in common with the prospective tenant.

2. Effect on Other Laws. Nothing in chapter shall be deemed to permit any rental or occupancy of any dwelling unit or commercial space otherwise prohibited by law.

C. Affirmative Defenses. The health and safety exception set forth in Section 6.24.080 of this chapter shall constitute an affirmative defense in any action brought under this section.

(Prior gen. code § 2-190.3)

A. Unlawful Business Practice. It shall be an unlawful business practice for any person to deny any individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any business establishment including, but not limited to medical, dental, health care and convalescent services of any kind whatsoever, on the basis, in whole or in part, of the fact that such person has AIDS or associated conditions, as that term is defined in this chapter.

B. Exceptions. Nothing in this section shall apply to any blood bank, blood donation facility, sperm bank, sperm donation facility, surrogate mother or surrogate mother facility, or to any like service facility or establishment engaged in the exchange of products containing elements of blood or sperm.

C. Affirmative Defenses. The health and safety exception set forth in Section 6.24.080 of this chapter shall constitute an affirmative defense in any action brought under this section.

(Prior gen. code § 2-190.4)

A. It shall be an unlawful practice for any person to deny any person the full and equal enjoyment of, or to impose different terms and conditions on the availability of any of the following:

1. Use of any county facility or service on the basis, in whole or in part, that a person has AIDS or associated conditions;

2. Any service, program or facility, wholly or partially funded or otherwise supported by the county, as a result of the fact, in whole or in part, that a person has AIDS or associated conditions.

B. Affirmative Defenses. The health and safety exception set forth in Section 6.24.080 of this chapter shall constitute an affirmative defense in any action brought under this section.

(Prior gen. code § 2-190.5)

A. It shall be an unlawful educational practice for any person to do any of the following:

1. To deny admission, or to impose different terms and conditions on admission, on the basis, in whole or in part, of the fact that a person has AIDS or associated conditions;

2. To deny any individual the full and equal enjoyment of, or to impose different terms and conditions upon the availability of, any facility owned or operated or any service or program offered by an educational institution on the basis, in whole or in part, of the fact that such person has AIDS or associated conditions.

B. Exemption. It shall not be an unlawful discriminatory practice under this section for a religious institution to limit admission, or give other preference to applicants of the same religion.

C. Affirmative Defenses. The health and safety exception set forth in Section 6.24.080 of this chapter shall constitute an affirmative defense in any action brought under this section.

(Prior gen. code § 2-190.6)

A. The affirmative defenses described herein shall be applicable to Sections 6.24.040 through 6.24.070 inclusive of this chapter. In any action brought under Sections 6.24.040 through 6.24.070 of this chapter, if a party asserts that an otherwise unlawful discriminatory practice is justified as necessary to protect the health or safety of a person who has AIDS or associated conditions or the health and safety of the general public, that party may establish a defense by proving:

1. That the discriminatory act is necessary to avoid an imminent and substantial risk to the person who has AIDS or associated conditions; or

2. That the discriminatory act is necessary to avoid a danger to others significantly greater than that posed by persons without AIDS; and

3. That there exists no less discriminatory means of protecting health and safety.

B. Nothing in this chapter shall be construed to prohibit any act which is specifically authorized by the laws or regulations of the state or the United States government.

(Prior gen. code § 2-190.7)

A. No person shall require another to take any test or undergo any medical procedure designed to show or help to show that a person has AIDS or any of the associated conditions covered by this chapter.

B. Subsection A of this section does not apply to an employer who can show that the absence of AIDS is a bona fide occupational qualification.

(Prior gen. code § 2-190.8)

Any person who violates any of the provisions of this chapter or who aids in the violation of any provisions of this chapter shall be liable for, and the court shall award to the individual whose rights are violated, actual damages, and any amount as may be determined by a jury, or the court sitting without a jury, up to a maximum of three times the amount of actual damages but in no case less than one thousand dollars ($1,000.00), and such attorney's fees as may be determined by the court in addition thereto.

(Prior gen. code § 2-190.9)

A. Civil Action. Any aggrieved person may enforce the provisions of this chapter by means of a civil action.

B. Injunction.

1. Any person who commits, or proposes to commit, an act in violation of this chapter may be enjoined therefrom by any court of competent jurisdiction.

2. An action for injunction under this subsection may be brought by an aggrieved person or by any person who or entity which will fairly and adequately represent the interests of the protected class.

C. Nonexclusion. Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law.

D. Exception. Notwithstanding any provision of this code to the contrary, no criminal penalties shall attach for any violation of the provisions of this chapter.

(Prior gen. code § 2-190.10)

Actions under this chapter must be filed within two years of the alleged discriminatory acts.

(Prior gen. code § 2-190.11)