La Mesa Municipal Code Ch. 7.29 Discrimination Against Persons with Life-Threatening Diseases Prohibited

It is hereby declared as the public policy of the city of La Mesa that it is necessary to protect and safeguard the rights and opportunities of persons who have, or are thought to have, life-threatening diseases not otherwise protected by state and/or federal law or regulations in respect to discrimination in housing, employment, business establishments, testing and city facilities and services.

(Ord. 2492 § 1; March 22, 1988)

(a) "Life-threatening diseases" refers to diseases such as Acquired Immune Deficiency Syndrome (AIDS), cancer, heart disease and all other diseases that pose an imminent danger to the survival of a human being.

(b) "Business establishment" includes any entity, however organized, whether for profit or not for profit, which furnishes goods or services, including educational services, or accommodations, to the general public; including any entity which has a membership requirement if its membership requirement consists only of the payment of a membership fee and at least ten percent of the residents within the city of La Mesa could qualify.

(c) "Housing accommodation" includes any improved or unimproved real property, or portion thereof, which is used or occupied, or is intended, arranged or designed to be used or occupied, as the home, residence, or sleeping place of one or more persons.

(d) "Housing services" shall mean services otherwise provided by the owner of any housing accommodation to persons renting or leasing such housing accommodation, including but not limited to, utilities such as light, heat, water and telephone; ordinary repairs or replacement, and maintenance, including painting; elevator services, laundry facilities and privileges, the use of common recreational facilities, janitorial services, resident manager, refuse removal, furnishings, food service, parking and any other benefits, privileges or facilities provided.

(e) "Person" shall include one or more individuals, partnerships, associations, corporations, labor organizations, legal representatives, trustees in bankruptcy and receivers or other fiduciaries.

(f) "Owner" shall include the lessee, sublessee, assignee, managing agent, real estate broker or salesman, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing accommodations.

(g) "Employer" shall mean every person including any public service corporation, regularly employing one or more persons, or any person acting directly or indirectly as an agent of an employer.

(Ord. 2492 § 1; March 22, 1988)

(a) It shall be unlawful for any owner of any housing accommodation or housing service to discriminate against any person because such person has, or is thought to have, a life-threatening disease.

(b) Nothing in this chapter shall:

(1) Apply to any housing accommodation in which the owner or any member of his or her family occupies the same housing accommodation in common with the prospective tenant. This exception shall not apply where the owner occupies a separate apartment, condominium or other housing unit in a multiple-unit complex.

(2) Permit or require the rental or occupancy of any housing accommodation otherwise prohibited by law.

(3) Otherwise interfere with any just cause for the owner to evict a person from any housing accommodation or permit the delay of any unlawful detainer action.

(4) Require the renting of any housing accommodation reserved for the housing of students to nonstudent persons with a life-threatening disease.

(Ord. 2492 § 1; March 22, 1988)

(a) Unlawful employment practices. It shall be an unlawful employment practice for any employer, employment agency or labor organization or any agent or employee thereof to do or attempt to do any of the following:

(1) Fail or refuse to hire, or to discharge any person, or otherwise to discriminate against any person with respect to compensation, terms, conditions or privileges of employment, including promotion, on the basis (in whole or in part) that such person has, or is thought to have, a life-threatening disease.

(2) Limit, segregate or classify employees or applicants for employment in any manner which would deprive or tend to deprive any person of employment status on the basis (in whole or in part) that such person has, or is thought to have, a life-threatening disease.

(3) Fail or refuse to refer for employment any person, or otherwise to discriminate against any person on the basis (in whole or in part) that such person has, or is thought to have, a life-threatening disease.

(4) Fail or refuse to include in its membership or to otherwise discriminate against any person, or to limit, segregate or classify its membership, or otherwise adversely affect her or his status as an employee or as an applicant for employment on the basis (in whole or in part) that such person has, or is thought to have, a life-threatening disease.

(5) Discriminate against any person in admission to or employment in, any program established to provide apprenticeship or other training or retraining, including any on-the-job training program on the basis (in whole or in part) that such person has, or is thought to have, a life-threatening disease.

(6) Make, print, publish, or cause to be made, printed, or published any notice, statement, sign, advertisement, application or contract with regard to employment that indicates any preference, limitation, or discrimination with respect to the fact that a person has, or is thought to have, a life-threatening disease.

(b) Bona fide occupational qualification not prohibited; burden of proof:

(1) Bona fide occupational qualification. Nothing contained in this chapter shall be deemed to prohibit selection, rejection or dismissal based upon a bona fide occupational qualification.

(2) Burden of proof. In any action brought under this chapter, if a party asserts that an otherwise unlawful discriminatory practice is justified as a bona fide occupational qualification, that party shall have the burden of proving:

a. That the discrimination is in fact a necessary result of a bona fide occupational qualification;

b. That there exists no less discriminatory means of satisfying the occupational qualification.

(c) Exceptions. It shall not be an unlawful discriminatory practice for an employer to observe the conditions of a bona fide employee benefit system, provided such systems or plans are not a subterfuge to evade the purposes of the chapter; provided further that no such system shall provide an excuse for failure to hire any person.

(Ord. 2492 § 1; March 22, 1988)

It shall be unlawful for any person or business establishment to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any business establishment on the grounds that such person has, or is thought to have, a life-threatening disease.

(Ord. 2492 § 1; March 22, 1988)

(a) It shall be unlawful for any person to require another person to take any test or undergo any medical procedure designed to determine that a person has a virus that would lead to a life-threatening disease.

(b) Nothing in this chapter shall:

(1) Prohibit any testing or medical procedure authorized by the laws of the United States, the state of California, the city of La Mesa or the county of San Diego, or any testing or medical procedure required by the county department of health services to protect the public health;

(2) Apply to an employer who can show that the absence of a life-threatening disease virus is a bona fide occupational qualification.

(Ord. 2492 § 1; March 22, 1988)

(a) It shall be unlawful to deny any person the full and equal enjoyment of, or to impose less advantageous terms, or restrict the availability of, the use of any city facility or participation in any city funded or supported service or programs on the grounds that such person has, or thought to have a life-threatening disease.

(b) Nothing in this chapter shall:

(1) Apply to any facility, service or program which does not receive any assistance from the city and which is not open to or provided to the public generally;

(2) Restrict services or programs specifically designed for persons with life-threatening diseases.

(Ord. 2492 § 1; March 22, 1988)

It shall be unlawful to make, print, publish, advertise or disseminate in any way, or cause to be made, printed, published, advertised or disseminated in any way, any notice, statement sign, advertisement, application or contract which indicates an intent to engage in any practice made unlawful by this chapter.

(Ord. 2492 § 1; March 22, 1988)

(a) Nothing in this chapter shall be construed to prohibit any act specifically authorized by the laws of the United States, the state of California or the city of La Mesa or any act required by the county department of health services to protect the-public health.

(b) Nothing in this chapter shall prohibit any act which is necessary to protect the health or safety of the general public.

If a party to any action brought under this chapter asserts that an otherwise discriminatory practice is justified as necessary to protect the health or safety of the general public, that party shall have the burden of proving:

(1) That the discrimination is in fact a necessary result of a necessary course of conduct pursued to protect the health or safety of the general public; and

(2) That there exists no less discriminatory means of satisfying the necessary protection of the health or safety of the general public.

(Ord. 2492 § 1; March 22, 1988)

Any person who violates any of the provisions of this chapter or who aids in the violation of any provisions of the chapter is liable for each and every such offense for actual damages, such amount of punitive damages as may be determined by a jury or a court sitting without a jury, and such costs and attorney's fees as may be determined by the court.

(Ord. 2492 § 1; March 22, 1988)

(a) Any aggrieved person may enforce the provisions of this chapter by means of a civil action.

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

(c) An action for injunction under paragraph (b) above may be brought by any aggrieved person or by any person or entity which will fairly and adequately represent the interests of the protected individual class.

(d) Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law.

(e) An action arising under this chapter shall not be rendered moot because of the death, or physical or mental incapacity of the person who was the subject of the claimed discrimination.

(f) Notwithstanding any provision of law, no criminal penalties shall attach for any violation of the provisions of this chapter.

(Ord. 2492 § 1; March 22, 1988)

If any part or provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this chapter are severable.

(Ord. 2492 § 1; March 22, 1988)