Chapter 8 — PROHIBITION OF AIDS DISCRIMINATION

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*Note--Chapter 8, Prohibition of Smoking in Certain Public Areas, added by Ord. No. 4219 (N.S.), effective 1-17-74. Repealed and new Chapter 8 added by Ord. No. 4556 (N.S.), effective 9-18-75. Amended by Ord. No. 9970 (N.S.), effective 3-12-09, as Chapter 8, PROHIBITION OF AIDS DISCRIMINATION. (Provisions previously codified at § 32.1201 et seq., added by Ord. No. 7435 (N.S.), effective 2-11-88)

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The Board of Supervisors finds as follows:

(a) The medical condition described as Acquired Immune Deficiency Syndrome, commonly known as AIDS, is a deadly disease which has the potential to affect every segment of the County's population.

(b) AIDS was first recognized in 1981 by the United States Public Health Service's Center for Disease Control and Prevention based on the study of a pattern of unusual illnesses among young, single males reported by the medical centers associated with University of California at Los Angeles and New York University.

(c) AIDS/HIV, in the opinion of the scientific and medical community, is caused by a virus known as HIV (Human Immunodeficiency Virus) which attacks and cripples the body's immune system and neurological system, thereby leaving the body vulnerable to opportunistic infections, certain cancers and neurological diseases.

(d) A person afflicted with AIDS suffers a variety of bacterial, viral and/or fungal caused illnesses, cancers, protozoan and neurological conditions which debilitate the body resulting in a high mortality rate within several years after HIV infection.

(e) Transmission of the virus has occurred through transfer of blood, blood by-products and body organs, through intimate sexual contact, through sharing contaminated hypodermic needles or perinatally.

(f) No evidence exists to indicate the spread of the virus through casual contact, such as contact at work or at school, through the air or water or through the handling of food by persons having the AIDS virus.

(g) Medical studies of family groups in which one or more persons have been diagnosed with AIDS/HIV show no spread of the virus other than through sexual intimacy or through the exchange of blood, such as mother to infant or needle sharing.

(h) A public health danger represented by the HIV virus and its subsequent manifestation as AIDS is exacerbated by the lengthy incubation period during which an apparently healthy but infected individual may spread the disease to other persons through the transfer of blood, blood by-products, body organs, semen or vaginal/cervical secretions, perinatally or through sharing HIV contaminated hypodermic needles.

(i) AIDS/HIV has been recognized as a national public health emergency with a large proportion of the cases diagnosed in California.

(j) AIDS/HIV, in the opinion of the scientific and medical community, will continue to increase at a significant rate within the County for the foreseeable future.

(k) Persons with AIDS/HIV face potential discrimination and this potential for discrimination is sufficient to justify a County ordinance to prohibit discriminatory practices which are not adequately regulated by federal and State law.

(Amended by Ord. No. 8358 (N.S.), effective 3-17-94; amended by Ord. No. 9970 (N.S.), effective 3-12-09)

It is the County's public policy that it is necessary to protect and safeguard the rights and opportunities of persons with AIDS/HIV from discrimination in employment, housing, business establishments, testing and the use and enjoyment of County facilities and services.

(Amended by Ord. No. 8358 (N.S.), effective 3-17-94; amended by Ord. No. 9970 (N.S.), effective 3-12-09)

The following definitions shall apply to this chapter:

(a) "AIDS" means Acquired Immune Deficiency Syndrome, a disease complex which occurs when an important part of the human immune system is destroyed by the action of a human immune deficiency virus known as HIV and as defined by the United States Public Health Services Center for Disease Control and Prevention. AIDS is manifested by infections, cancers or neurological diseases.

(b) "HIV infection" means infection with the Human Immunodeficiency Virus which, although separate and distinct from a diagnosis of AIDS, is a precursor to an AIDS diagnosis.

(c) "Business establishment" includes any entity, however organized, which furnishes goods or services, including health and dental care services, mortuary services, educational services or accommodations to the general public. An otherwise qualifying entity which has membership requirements is considered to furnish services to the general public if its membership requirements: (1) consist only of payment of fees or (2) consist of requirements under which a substantial portion of the residents of the County could qualify.

(d) "Employee" means a person who works for another person for pay.

(e) "Employer" means a person who regularly employs one or more persons or a person acting as the employer's agent.

(f) "Employment agency" means a person who, for compensation, regularly helps employees find jobs or assists employers in finding employees to fill positions and includes an agent of the person.

(g) "Housing accommodation" includes any improved or unimproved real property, or portion of the property, 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.

(h) "Housing services" means services provided by the owner of any housing accommodation to persons renting or leasing the 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, waste removal, furnishings, food service, parking and any other benefits, privileges or facilities provided.

(i) "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.

(j) "Owner" includes 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.

(Amended by Ord. No. 7437 (N.S.), effective 2-18-88; amended by Ord. No. 8358 (N.S.), effective 3-17-94; amended by Ord. No. 9970 (N.S.), effective 3-12-09)

Cross reference(s)—Definitions, § 12.101 et seq.

(a) It shall be unlawful for the owner of any housing accommodation in the unincorporated area of the County to discriminate against any person because the person has AIDS/HIV.

(b) It shall be unlawful for the owner of any housing accommodation in the unincorporated area of the County to deny or limit the housing services offered or provided to a tenant because the tenant has AIDS/HIV.

(c) Nothing in this section shall:

(1) Apply to any housing accommodation in which the owner or any member of the owner's 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) Allow or require the rental or occupancy of any housing accommodation prohibited by law.

(3) Interfere with the right of an owner to evict a person from any housing accommodation for just cause or allow the

delay of any unlawful detainer action.

(4) Require an owner to rent any housing accommodation reserved for student housing to a non- student with

AIDS/HIV.

(Amended by Ord. No. 8358 (N.S.), effective 3-17-94; amended by Ord. No. 9970 (N.S.), effective 3-12-09)

It shall be unlawful for a person in the unincorporated area of the County to deny another person the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any business establishment because the person has AIDS/HIV.

(Amended by Ord. No. 8358 (N.S.), effective 3-17-94; amended by Ord. No. 9970 (N.S.), effective 3-12-09)

(a) It shall be unlawful for any person in the unincorporated area of the County to require another person to take any test or undergo any medical procedure designed to determine that a person has AIDS/HIV.

(b) Nothing in this section shall:

(1) Prohibit any testing or medical procedure authorized by the laws of the United States, the State of California 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 any employer who can show that the absence of AIDS/HIV is a bona fide occupational qualification.

(Amended by Ord. No. 8358 (N.S.), effective 3-17-94; amended by Ord. No. 9970 (N.S.), effective 3-12-09)

(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 County facility or participation in any County funded or supported service or program because the person has AIDS/HIV.

(b) Nothing in this section shall:

(1) Apply to any facility, service or program which does not receive any assistance from the County and which is

generally not open to or provided to the public.

(2) Restrict services or programs specifically designed for persons with AIDS/HIV.

(Amended by Ord. No. 8358 (N.S.), effective 3-17-94; amended by Ord. No. 9970 (N.S.), effective 3-12-09)

(a) It shall be unlawful in the unincorporated area of the County for an employer, because a person has AIDS/HIV, to:

(1) Fail or refuse to hire the person, discharge the person or discriminate against the person with respect to the

person's compensation or terms, conditions or privileges of employment.

(2) Limit, segregate or classify an employee or an applicant for employment in any way which would deprive or tend to

deprive the person of employment opportunities or to adversely affect the person's status as an employee in any other way.

(b) It shall be unlawful in the unincorporated area of the County for an employment agency, because a person has AIDS/HIV to fail or refuse to refer the person for employment or otherwise to discriminate against the person.

(c) It shall be unlawful in the unincorporated area of the County for a labor organization, because a person has AIDS/HIV, to:

(1) Exclude or to expel the person from its membership or discriminate against the person in any other way.

(2) Limit, segregate or classify a member or applicant for membership or fail or refuse to refer the person for

employment in any way which would deprive or tend to deprive the person of employment opportunities or that would limit the person's employment opportunities or in some other manner adversely affect the person's status as an employee or as an applicant for employment.

(3) Cause or attempt to cause an employer to discriminate against the person in violation of this section.

(d) It shall be unlawful in the unincorporated area of the County, for an employer, labor organization or joint labor- management committee controlling apprenticeship or other training or retraining, including an on-the-job training program, to discriminate against a person, because the person has AIDS/HIV regarding admission to or employment in any program established to provide apprenticeship or other training.

(e) Nothing contained in this section shall be deemed to prohibit selection or rejection based upon a bona fide occupational qualification. In an action brought under this chapter, however, if a party asserts that discrimination is justified as a bona fide occupational qualification, that party shall have the burden of proving: (1) the discrimination is a necessary result of a bona fide occupational qualification and (2) there exists no less discriminatory means of satisfying the

occupational qualification.

(f) Notwithstanding any other provision in this chapter, it is not unlawful for an employer to:

(1) Apply different standards of compensation or different terms, conditions or privileges of employment pursuant to a

bona fide seniority or merit system or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that the differences are not the result of an intent to discriminate against a person because the person has AIDS/HIV.

(2) Give and to act upon the results of any professionally developed ability test provided that the test and its

administration or action upon the results of the test is not designed, intended or used to discriminate against a person because the person has AIDS/HIV.

(Amended by Ord. No. 8358 (N.S.), effective 3-17-94; amended by Ord. No. 9970 (N.S.), effective 3-12-09)

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

(Amended by Ord. No. 9970 (N.S.), effective 3-12-09)

(a) Nothing in this chapter shall be construed to prohibit any act authorized by the laws of the United States, the State of California or the County of San Diego 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 a discriminatory practice is justifiable because it is necessary to protect the health or safety of the general public, that party shall have the burden of proving that:

(1) The discrimination is a necessary result of a necessary course of conduct pursued to protect the health or safety of

the general public; and

(2) There is no less discriminatory means to protect the health or safety of the general public.

(Amended by Ord. No. 9970 (N.S.), effective 3-12-09)

Any person who violates this chapter or who aids another person in violating this chapter is liable for each and every violation, for damages up to a maximum of three times the amount of actual damages, for punitive damages as may be determined by a jury or a court sitting without a jury and for costs, including reasonable attorney's fees, as may be determined by the court.

(Amended by Ord. No. 9970 (N.S.), effective 3-12-09)

(a) Any aggrieved person may enforce 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 from that conduct by a court of competent jurisdiction.

(c) An action seeking injunctive relief under subsection (b) above may be brought by an aggrieved person or by any interested person who will fairly and adequately represent the interests of the aggrieved person or class of persons on whose behalf relief is sought.

(d) Nothing in this chapter shall preclude any aggrieved person from pursuing 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 this chapter.

(Amended by Ord. No. 9970 (N.S.), effective 3-12-09)

This chapter shall not apply to any act of discrimination that is regulated by federal or State law.

(Added by Ord. No. 9970 (N.S.), effective 3-12-09)