Berkeley Municipal Code Ch. 13.30 Discrimination on the Basis of Acquired Immune Deficiency Syndrome…

It is the policy of the City to eliminate discrimination within the City of Berkeley against persons who have Acquired Immune Deficiency Syndrome (AIDS) or any related condition or who are suspected of or perceived as having AIDS or are believed to be at risk of having AIDS or to associate with persons who have AIDS. (Ord. 5712-NS § 1, 1986)

The council finds and declares:

Discrimination against victims of AIDS and AIDS-related conditions exists in the City of Berkeley. Persons with AIDS or AIDS-related conditions are faced with discrimination in employment, housing, business establishments, City facilities, City services, and other public accommodations. This discrimination cuts across all racial, ethnic, and economic lines. Such discrimination poses a substantial threat to the health, safety, and welfare of the community. Existing state and federal restraints on such arbitrary discrimination are inadequate to meet the particular problems of this City. (Ord. 5712-NS § 2, 1986)

A. "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.

B. "A person who has AIDS or associated conditions" or "a person has AIDS or associated conditions" means anyone who has AIDS, as defined in subsection A above; 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.

C. "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: (1) consist only of payment of fees; or (2) consist of requirements under which five percent or more of the residents of the City could qualify; or (3) consists of an otherwise unlawful business practice.

D. "Person" and "anyone" mean any natural person, firm, corporation, partnership or other organization, association or group however organized.

E. "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 City of Berkeley.

F. "Employment agency" means any person undertaking for compensation to procure employees or opportunities to work.

G. "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. (Ord. 5712-NS § 3, 1986)

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 their status as an employee;

2. By an employment agency: To fail or refuse to refer for employment any individual; or otherwise to discriminate against any 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 of employment opportunities, or would limit such employment opportunities, or otherwise adversely affect their 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 by any such organization, which indicates an unlawful discriminatory act or preference.

B. Affirmative Defenses. The following constitute affirmative defenses to 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 defined in Section 13.30.030A above is reasonably necessary to the essence of the employer’s business and that all or substantially all persons with AIDS as defined in Section 13.30.030A above 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 defined in Section 13.30.030A above, they are unable to perform their duties, or cannot perform such duties in a manner which would not endanger their 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 defined in Section 13.30.030A above, without undue hardship on the conduct of the employer’s business. (Ord. 5712-NS § 4, 1986)

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 any transaction in real property, including but not limited to the rental thereof; to require different terms for such transaction; or falsely to 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 or published, advertised or disseminated in any way, any notice, 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 this chapter shall be constructed to apply to the rental or leasing of any housing unit in which the owner or any member of their family occupies the same living unit in common with the prospective tenant.

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

3. Rent stabilization ordinance. Nothing in this chapter shall override any just cause for eviction set forth in the rent stabilization ordinance.

C. Affirmative Defense. The health and safety exception set forth in Section 13.30.090 shall constitute an affirmative defense in any action brought under this section. (Ord. 5712-NS § 5, 1986)

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 Defense. The health and safety exception set forth in Section 13.30.090 of this chapter shall constitute an affirmative defense in any action brought under this section. (Ord. 5712-NS § 6, 1986)

A. Unlawful Practices. 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 City of Berkeley facility or City of Berkeley 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 City of Berkeley, as a result of the fact, in whole or in part, that a person has AIDS or associated conditions.

B. Affirmative Defense. The health and safety exception set forth in Section 13.30.090 of this chapter shall constitute an affirmative defense in any action brought under this section. (Ord. 5712-NS § 7, 1986)

A. Unlawful Educational Practices. 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 or conditions on admission, on the basis, in whole or in part, of the fact that such person has AIDS or associated conditions;

2. To deny any individual the full and equal enjoyment of, or to impose different terms or 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 defense. The health and safety exception set forth in Section 13.30.090 of this chapter shall constitute an affirmative defense in any action brought under this section. (Ord. 5712-NS § 8, 1986)

A. The affirmative defenses described herein shall be applicable to Sections 13.30.050 through 13.30.080 inclusive of this chapter. In any action brought under Sections 13.30.050 through 13.30.080 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 as defined in Section 13.30.030A above; 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 of California or the United States Government. (Ord. 5712-NS § 9, 1986)

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

B. Subsection A does not apply to an employer who can show that the absence of AIDS is a bona fide occupational qualification. (Ord. 5712-NS § 10, 1986)

It shall be unlawful for any person to do any of the acts proscribed in Sections 13.30.050 through 13.30.100 above because a person has opposed any practice made unlawful by this chapter or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter or any other law prohibiting discrimination against persons who have AIDS or associated conditions. (Ord. 5712-NS § 11, 1986)

Any person who violates any of the provisions of this chapter or who aids or assists in the violation of any provisions of this chapter shall be liable as follows:

A. For actual damages, including compensatory damages for pain and suffering and a civil penalty. The penalty can be up to three times the amount of actual damage, but in no case will it be less than one thousand dollars;

B. For costs and attorney’s fees;

C. For any equitable relief to remedy the wrong to the individual whose rights were violated and to prevent or end any act or practice which would violate this chapter and for equitable relief in the form of affirmative action as may be appropriate. (Ord. 5712-NS § 12, 1986)

A. Any aggrieved person may enforce this chapter in a civil action in any court with jurisdiction.

B. Action for equitable relief under this chapter may be brought by any aggrieved person, by the City Attorney, or by any aggrieved person or entity which will fairly and adequately represent the interests of the class of persons who have AIDS. (Ord. 5712-NS § 13, 1986)

Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law. (Ord. 5712-NS § 14, 1986)

Actions under this chapter must be filed within one year of the last occurrence of the alleged discriminatory acts. (Ord. 5712-NS § 15, 1986)