Chapter 9.40 — DISCRIMINATION BASED ON AIDS

The purpose of this chapter is to prohibit discrimination in the city against persons who have the medical condition known as Acquired Immune Deficiency Syndrome (AIDS) or AIDS related conditions (ARC) or any other related conditions; or who are suspected of or are perceived as having AIDS, ARC or related conditions; or against persons who are believed to be at risk of having AIDS, ARC or related conditions; or against persons who associate with, or who are suspected of or perceived to associate with persons having AIDS, ARC or related conditions.

(Prior code § 3-21.01)

The City Council finds and declares that:

A.

The medical condition described as Acquired Immune Deficiency Syndrome and commonly known as AIDS is a life-threatening disease which has the potential to affect every segment of our city's population.

B.

AIDS was first recognized by the Federal Centers for Disease Control in 1981 based on a study report by the UCLA Medical Center.

C.

It is the opinion of the scientific and medical community that AIDS is caused by a virus, variously known as human T-lymphotropic virus type III (HTLV-III) or lymphadenopathy-associated virus (LAV), or AIDS- associated retrovirus, which attacks the body's immune system by killing T-helper lymphocytes, thereby leaving the body vulnerable to opportunistic infections and malignancies.

D.

A person afflicted with AIDS may suffer a variety of viral, bacterial, fungal and protozoal infections and malignancies which debilitate the body resulting in a high mortality rate within three years after diagnosis.

E.

The spread of the virus has occurred only through the exchange of bodily fluids between individuals, i.e., blood, blood by-products, or semen.

F.

No evidence exists to indicate the spread of the virus or AIDS or ARC by casual contact between individuals.

G.

Medical studies of family groups in which one or more persons have been diagnosed with AIDS or ARC indicate no transmission of the virus other than through sexual intimacy or through the exchange of blood (i.e., mother to fetus). Medical studies of hospital personnel caring for AIDS patients indicate no transmission of the virus other than by the puncturing of medical personnel with needles previously inserted in persons having the virus.

H.

The virus can thrive only in favorable conditions, and cannot exist for a significant period of time outside the body, and can be prevented by the application of regular practices of hygiene, such as the use of chlorine in swimming pools or spas, and the use of household bleach when washing garments or cleaning contaminated surfaces.

I.

The public health danger represented by the virus and its subsequent manifestation as AIDS or ARC is caused by the lengthy incubation period, during which period an apparently healthy individual may transmit the disease to other persons through the exchange of blood, blood by-products or semen.

J.

AIDS, ARC and the presence of the virus in individuals constitute a national public health emergency. The reported number of AIDS and ARC cases in the nation has been concentrated in urban areas such as Oakland, with the Bay Area being a section of the country reporting high numbers of cases.

K.

The 1985 Alameda County AIDS Response Plan reported that AIDS cases in Alameda County are doubling every nine to twelve (12) months, and that for every case of AIDS there exist two or three individuals with ARC or other related, nonfatal illnesses. The report states that as of June 14, 1985, there were one hundred thirteen (113) diagnosed AIDS cases in Alameda County, and estimates that by the end of 1989 there could be nearly eight thousand (8,000) diagnosed AIDS cases in the county. The report indicates that as of June 14, 1985, there were sixty-seven (67) diagnosed AIDS cases in Oakland.

L.

AIDS and ARC have created a discrete and insular minority of our citizens who are afflicted with a seriously disabling condition whose ultimate outcome is often fatal. Individuals infected with the virus represent a segment of our population particularly victimized due to the nature of the disease and to the present climate of misinformation, ignorance and fear in the general population.

M.

Discrimination against persons having AIDS and ARC exists in the city. This discrimination may occur with regard to employment, housing, business establishments, services, and accommodations. This discrimination affects persons in all racial, ethnic, and economic groups, and poses a substantial threat to the health, safety and welfare of the community.

N.

Existing state and federal restraints on such arbitrary discrimination are inadequate to meet the problems of discrimination in this city.

O.

The City Council, therefore, determines that there is a need to prohibit discrimination on the basis of AIDS, ARC and related conditions.

(Prior code § 3-21.02)

As used in this chapter:

"AIDS" means the condition which occurs when an individual is infected with the virus known as lymphadenopathy-associated virus or human T-lymphotropic virus type III or AIDS-associated retrovirus including, but not limited to, Acquired Immune Deficiency Syndrome (AIDS), AIDS-related complex (ARC), progressive generalized lymphadenopathy, lymphadenopathy syndrome, asymptomatic infection, and seropositive. The term AIDS shall also include within its meaning anyone who has any medical condition as a result of being infected by any of the above. The term AIDS and the protections of this chapter shall also

apply to: any individual who is suspected of, or perceived as having any of the conditions listed herein; any individual who is believed to be at risk of contracting any of the conditions listed herein; or any individual who is believed to associate with persons who have any of the conditions listed herein.

"Business establishment" means any person, organization or entity, however organized, which provides or offers goods, services or accommodations to the general public. An otherwise qualifying establishment which has membership requirements is considered to furnish services to the general public if its membership requirements: (1) consist only of payment of fees; (2) consist of requirements under which a substantial portion of the residents of the city could qualify; (3) consist of an otherwise unlawful business practice.

"Commercial units" means and includes all real properties that are not housing units, and are rented or offered for rent for business, retail, office, industrial, and other commercial purposes, the land and buildings appurtenant thereto, and all privileges, furnishings, and facilities supplied in connection with the use and occupancy thereof, including garage and parking facilities.

"Employer" means every person, organization or entity, including the city and any other public service corporation, and the legal representative of any deceased employer, employing one or more persons, or any person acting as an agent of an employer, directly or indirectly.

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

"Housing services" means and includes services connected with the use or occupancy of a rental unit including, but not limited to, utilities (including light, heat, water, telephone, refuse service), ordinary repairs or replacement, and maintenance, including painting. This term shall also include the provision of elevator service, laundry facilities, janitorial services, resident management, furnishings, food service, parking and any other benefits, privileges or facilities.

"Housing units" means and includes all dwelling units, efficiency units, guest rooms, and suites in the city as defined by other city enactments, rented or offered for rent for living or dwelling purposes, the land and buildings appurtenant thereto, and all housing services, privileges, furnishings, and facilities supplied in connection with the use or occupancy thereof, including garage and parking facilities.

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

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

"Rent" means the consideration, including any bonus, benefits or gratuity, demanded or received by a landlord for or in connection with the use or occupancy of a commercial or rental unit, including but not limited to moneys demanded or paid for the following: meals where required by the landlords as a condition of the tenancy; parking; furnishings; other housing services of any kind; subletting; or security deposits.

(Prior code § 3-21.03)

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, attempt to do, or threaten to do any of the following acts as a result, in whole or in part, of another person having AIDS, ARC or other related condition (as defined in this chapter):

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

By an employment agency: To fail or refuse to refer for employment any person; to fail or refuse to offer to a prospective employer any otherwise qualified person; or otherwise to discriminate against any person;

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

By an employer, employment agency or labor organization:

a.

To discriminate against any person in admission to, or employment in, any program established to provide apprenticeship or other training or retraining including any on-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 exceptions set forth in Section 9.40.090A shall constitute affirmative defenses to any otherwise unlawful employment practice described in this chapter.

(Prior code § 3-21.04)

A.

Unlawful Practices. It is unlawful for any person or any authorized agent or employee of such person to do, attempt to do, or threaten to do any of the following as a result, in whole or in part, of a person having AIDS (as defined in this chapter):

Interrupt, terminate, or fail or refuse to initiate or conduct any transaction in real property; to require different terms for such transaction; or falsely to represent that an interest in real property is not available for transaction;

Refuse to rent or lease a commercial or housing unit; refuse to negotiate for the rental or lease of a unit; evict from a unit; or otherwise deny to or withhold a unit from any person;

Rent or lease a commercial or housing unit on less favorable terms, conditions, or privileges, or discrimination in the provision of housing services to any person;

Represent to any person that a commercial or housing unit is not available for inspection, rental or lease when such unit is, in fact, available;

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 (as defined in this chapter);

Make, print, publish, advertise or disseminate, or cause to be made, printed, published, advertised or disseminated, any notice, statement, sign, advertisement, application, or contract with regard to a commercial or housing unit that indicates any preference, limitation, or discrimination with respect to the fact that a person has AIDS (as defined in this chapter);

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;

Refuse or restrict facilities, services, repairs, or improvements for any tenant or lessee;

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 (as defined by this chapter);

Tell any person expressing interest in a real estate transaction, commercial unit or housing unit that any prior or current tenant or holder of any interest in the real estate affected by the proposed transaction has or had AIDS (as defined by this chapter).

B.

Exemptions.

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 unit in common with the prospective tenant.

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

Rent Arbitration Ordinance. Nothing in this chapter shall override the provisions of the city's rent arbitration ordinance.

C.

Affirmative Defense. The health and safety exception set forth in Section 9.40.090B shall constitute an affirmative defense in any action brought under this section.

D.

Presence of AIDS Not a Material Factor. In the conduct of any transaction in real property, including the renting and leasing of commercial and housing units, the sale of commercial and housing units, and the financing of real property transactions, whether or not any participant or proposed participant in the transaction has or had, in whole or in part, AIDS (as defined by this chapter) is declared not to be a material factor in the city.

(Prior code § 3-21.05)

A.

Unlawful Business Practice. It shall be an unlawful business practice to deny any person 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, that such person has AIDS (as defined in this chapter).

B.

Affirmative Defense. The health and safety exception set forth in 9.40.090B shall constitute an affirmative defense in any action brought under this section.

(Prior code § 3-21.06)

A.

Unlawful Practices. It shall be an unlawful practice 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:

Use of any city facility or city service on the basis, in whole or in part, that a person has AIDS (as defined in this chapter);

Any service, program or facility, wholly or partially funded or otherwise supported by the city, as a result, in whole or in part, that a person has AIDS (as defined in this chapter).

B.

Affirmative Defense. The health and safety exception set forth in Section 9.40.090B shall constitute an affirmative defense in any action brought under this section.

(Prior code § 3-21.07)

A.

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

To deny admission or continued enrollment, or to impose different terms or conditions on admission, or continued enrollment, on the basis, in whole or in the part, of such person having AIDS (as defined in this chapter);

To deny any person 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 such person having AIDS (as defined in this chapter).

B.

Exemption. It shall not be an unlawful discriminatory practice under this section for a religious or denominational 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 9.40.090B shall constitute an affirmative defense in any action brought under this section.

(Prior code § 3-21.08)

A.

Affirmative Defenses—Employment Practices. The affirmative defenses described herein shall be applicable to Section 9.40.040. Any party asserting these defenses shall have the burden of proving their affirmative defense.

Nothing in this chapter shall be deemed to prohibit employment 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 this chapter) is reasonably necessary to the essence of the employer's business and that all or substantially all persons with AIDS are unable to perform the duties of the position in question without endangering their health or safety or the health and safety of others.

Nothing in this chapter shall be deemed to prohibit employment selection, rejection or assignment where, because a person has AIDS (as defined in this chapter), he or she is unable to perform his or her duties, or cannot perform such duties in a manner that would not endanger her or his or her health or safety or the health and safety of others.

Nothing in this chapter shall be deemed to prohibit employment selection or rejection where it can be demonstrated that the employer, employment agency or labor organization is unable reasonably to

accommodate a person who has AIDS (as defined in this chapter) without undue hardship on the conduct of the employer's business.

B.

Affirmative Defenses—Housing, Accommodations, City Facilities and Services and Educational Institutions. The affirmative defenses described herein shall be applicable to Sections 9.40.050 through 9.40.080, inclusive. In any action brought under Sections 9.40.050 through 9.40.080, 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 (as defined in this chapter) or the health and safety of the general public, that party has the burden of proving:

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

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

That there exists no less discriminatory means of protecting the health and safety of the person with AIDS or of the general public.

(Prior code § 3-21.09)

A.

No person shall require another person to take any test or undergo any medical procedure designed to show or help show that a person does or does not have AIDS, ARC, or any other related condition as set forth in this chapter.

B.

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

C.

No person may disclose to another that a person has AIDS (as defined by this chapter) for the purpose of aiding in any act which would violate this chapter.

D.

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

(Prior code § 3-21.10)

A.

Association. It is unlawful for any person to do any of the acts described in Sections 9.40.040 through 9.40.100, inclusive, as a result of the fact that a person associates with anyone who has AIDS, ARC or any other related conditions as defined by this chapter.

B.

Retaliation. It is unlawful for any person to do any of the acts described in Sections 9.40.040 through 9.40.100, inclusive, or to retaliate against a person because a person has opposed any practice made unlawful by this chapter or because he or she has 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, ARC, or other related conditions.

(Prior code § 3-21.11)

A.

Posting Requirement. Every employer with fifteen (15) or more employees, every labor organization with fifteen (15) or more members, every employment agency, and every landlord who rents three or more commercial units or five or more housing units shall keep posted in conspicuous places upon the premises where notices to employees, applicants for employment, members and tenants are customarily posted, the following notice:

 Discrimination is prohibited by Chapter 9.40 of the Oakland Municipal Code, against persons who have the medical condition known as Acquired Immune Deficiency Syndrome (AIDS) or AIDS Related Conditions (ARC) or any other related conditions; or against persons who are suspected of or are perceived as having AIDS, ARC, or related conditions; or against persons who are believed to be at risk of having AIDS, ARC or related conditions; or who are suspected of or perceived to associate with persons having AIDS, ARC or related conditions.

B.

Alternative Compliance. Notwithstanding the above, the provisions of this subsection may be complied with by adding to all nondiscrimination notices required by federal, state or other local law language indicating on the notice that discrimination on the basis of AIDS, ARC and other related conditions is prohibited by Chapter 9.40 of the Oakland Municipal Code.

(Prior code § 3-21.12)

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 each violation as follows:

A.

For actual damages, including compensatory damages for pain and suffering;

B.

For a civil penalty which can be up to three times the amount of actual damages, but in no case will the civil penalty be less than one thousand dollars ($1,000.00).

C.

For court costs and attorneys' fees;

D.

For any equitable relief determined by a court to be necessary to remedy the wrong to the person whose rights are 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;

E.

For any punitive damages as a court may deem appropriate and proper.

(Prior code § 3-21.13)

A.

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

B.

Injunctive Relief.

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.

Actions for injunctive relief under this subsection may be brought by an aggrieved person, by the City Attorney, or by any person or entity which will fairly and adequately represent the interests of the class protected herein.

C.

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

D.

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

(Prior code § 3-21.14)

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

(Prior code § 3-21.15)

Nothing in this chapter shall be construed to prohibit any act which is specifically required by the laws of the state of California or the laws of the United States.

(Prior code § 3-21.16)

Any written or oral agreement which waives any provision of this chapter is against public policy and void.

(Prior code § 3-21.17)