El Cerrito Municipal Code Ch. 10.50 Prohibition of Discrimination on the Basis of Acquired Immune…

It is and has been the public policy of the city that all persons residing or visiting in the city may enjoy an equal opportunity to live, grow, learn, work, play, worship and exercise the responsibilities of citizenship unhampered by invidious discrimination, irrespective of their age, race, religion, color, sex, ancestry, national origin, handicap or sexual orientation. In furtherance of these principles and recognizing the unique concerns of the community regarding AIDS, the following chapter is adopted.

(Ord. 92-4 Div. 2 (part), 1992.)

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 related conditions (ARC), or any other medical condition which persons are known to contract as a result of having AIDS or ARC.

"A person who has AIDS or associated conditions" means anyone who has AIDS, as defined in subsection (A) of this section, anyone who has human immune deficiency virus (HIV) antibodies; anyone who may be 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) requirements under which five percent or more of the residents of the county could qualify.

"Commission" means the city's human relations commission.

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

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

"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.

"Person" or "anyone" means any natural person, firm, corporation, partnership or other organization, association or group.

(Ord. 92-4 Div. 2 (part), 1992.)

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 individuals of employment opportunities, or otherwise 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 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 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 in any such organization, which indicates an unlawful discriminatory act or preference.

B. Affirmative Defenses. The following constitute 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 is necessary to the essence of the employer's business and that persons with AIDS are unable to perform the duties of the position in question without imminent and substantial risk of 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, 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 without undue hardship on the conduct of the employer's business.

(Ord. 92-4 Div. 2 (part), 1992.)

A. Unlawful Housing Practice. 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 of condition 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 to 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 preferences, limitations or discrimination based on the fact that a person has or is perceived to have AIDS or related medical conditions.

B. Exemptions.

1. Owner Occupied. Nothing in this 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 this 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 10.50.070 of this chapter shall constitute an affirmative defense in any action brought under this section.

(Ord. 92-4 Div. 2 (part), 1992.)

A. Unlawful Business Practice. No business establishment shall 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 or is perceived to have 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, organ 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 10.50.070 of this chapter shall constitute an affirmative defense in any action brought under this section.

(Ord. 92-4 Div. 2 (part), 1992.)

A. Unlawful Practices. It shall be 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 facility or service on the basis, in whole or in part, that a person has or is perceived to have AIDS or associated conditions;

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

3. Affirmative Defenses. The health and safety exception set forth in Section 10.50.070 of this chapter shall constitute an affirmative defense in any action brought under this section.

(Ord. 92-4 Div. 2 (part), 1992.)

A. The affirmative defenses described herein shall be applicable to Sections 10.50.040 through 10.50.060 inclusive of this chapter. In any action brought under Sections 10.50.030 through 10.50.070 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 actual risk to the person who has AIDS or associated conditions, or to others; or

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

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.

(Ord. 92-4 Div. 2 (part), 1992.)

A. Except as provided by law, 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.

(Ord. 92-4 Div. 2 (part), 1992.)

A. Association. It shall be unlawful for any person to do any of the acts described in this chapter as a result of the fact that a person associates with anyone who has AIDS or any of the associated conditions covered by this chapter.

B. Nonretaliation. It shall be unlawful for any person to do any of the acts described in this chapter to retaliate against a person because that person exercises any rights afforded by this chapter.

(Ord. 92-4 Div. 2 (part), 1992.)

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 except for pain and suffering, and up to a maximum of three times the amount of actual damages but in no case less than one thousand dollars, and such attorney's fees as may be determined by the court in addition thereto.

(Ord. 92-4 Div. 2 (part), 1992.)

A. Mediation by Commission. Any person who believes that he or she has been discriminated against in violation of the provisions of this chapter may file with the commission a request to have the commission investigate and mediate his or her complaint pursuant to procedures adopted by the commission. In the course of investigating and mediating such complaints, the commission shall make an effort to provide AIDS information and education to the parties.

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

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

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

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

F. This chapter is intended to supplement state and federal law and shall not be interpreted or applied so as to create any power or duty in conflict with the preemptive effectiveness of any federal or state law.

(Ord. 92-4 Div. 2 (part), 1992.)

Actions under this chapter must be filed within one year of the alleged discriminatory acts.

(Ord. 92-4 Div. 2 (part), 1992.)