Chapter 10.48 — PROHIBITION AGAINST DISCRIMINATION BASED ON ACQUIRED IMMUNE DEFICIENCY

SYNDROME (AIDS), AIDS RELATED CONDITIONS OR MEDICAL CONDITIONS RELATED THERETO Part 1 - PURPOSE

This chapter is enacted to eliminate discrimination against persons with AIDS or any medical sign, condition or symptom related thereto. Towards this end, this chapter is adopted to prohibit such discrimination with respect to employment, real property transactions, educational institutions, business practices, AIDS testing, city facilities, and association and retaliation.

(Ord. 22878.)

A.

AIDS: The term "AIDS" as used in this chapter 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.

Condition Related Thereto: This phrase means any perception or belief that a person is suffering from AIDS, or the perception, real or imaginary, that a person is at risk for AIDS.

C.

Business Establishment: This phrase means any entity, however organized, which furnishes goods or services to the general public. An otherwise qualified establishment which has membership requirements is considered to furnish services to the general public if its membership requirements:(a) consist only of payment of fees; or (b) consist of requirements under which a substantial portion of the residents of the City of San José could qualify.

D.

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

E.

Real Property Transaction: This term means any transaction affecting real property including, but not limited to, the sale, lease, rental, or financing of real property.

F.

Person: This term means any natural person, firm, corporation, partnership, or other organization, association or group of persons however organized.

(Ord. 22878.)

A.

Unlawful Employment Practices: It shall be an unlawful employment practice for any employer, employment agency or labor organization or any agent, officer or employee thereof to do or attempt to do any of the following:

Fail or refuse to hire any person, discharge any person, or otherwise discriminate against any person with respect to compensation, terms, conditions or privileges of employment, including promotion, on the basis (in whole or in part) of the fact that such person has AIDS or any condition related thereto.

Limit, segregate, or classify employees or applicants for employment in any manner which would deprive or tend to deprive any person of employment opportunities, or adversely affect his or her employment status on the basis (in whole or in part) of the fact that such person has AIDS or any condition related thereto.

Fail or refuse to refer for employment any person, or otherwise to discriminate against any person on the basis (in whole or in part) of the fact that such person has AIDS or any condition related thereto.

Fail or refuse to include in its membership or otherwise discriminate against any person; or limit, segregate or classify its membership; or classify or fail or refuse to refer for employment any person in any way which could deprive or tend to deprive such person of employment opportunities, or otherwise adversely affect his or her status as an employee or as an applicant for employment, on the basis (in whole or in part) of the fact that such person has AIDS or any condition related thereto.

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) of the fact that such person has AIDS or any condition related thereto.

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 organization, which indicates an unlawful discriminatory act or preference based on AIDS.

B.

Bona Fide Occupational Qualification: Nothing contained in this section shall be deemed to prohibit selection, rejection or dismissal from employment based upon a bona fide occupational qualification.

A "bona fide occupational qualification" shall include but not be limited to the capacity of a person to perform his or her duties without endangering his or her health or safety, or the health or safety of others.

C.

Burden of Proof. In any action brought under this section, 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:

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

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

D.

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 system or plan is not a subterfuge to evade the purposes of this chapter; and provided further that no such system shall provide an excuse for failure to hire any person.

Nothing in this section shall be construed to prohibit any act specifically authorized by the laws of the state of California or any actions taken by or under the direction of the health department of the county of Santa Clara in order to protect the public health.

(Ord. 22878.)

A.

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 any conditions related thereto:

Interrupt, terminate, or fail or refuse to initiate or conduct any real property transaction, including but not limited to the leasing of a rental unit; to require different terms for such transaction; or falsely represent that an interest in real property is not available for transaction;

Include in the terms or conditions of a real property transaction any clause, condition or restriction;

Refuse to lend money, guarantee the loan or money, accept a deed of trust or mortgage, or otherwise refuse to make available finds 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 AIDS.

B.

Exceptions:

Nothing in this section shall be construed to apply to the rental or leasing of any housing unit in which the owner or any member of her or his family occupies the same unit in common with the prospective tenant.

Nothing in this section shall be construed to prohibit any act specifically authorized by the laws of the state of California or any actions taken by or under the direction of the health department of the county of Santa Clara in order to protect the public health.

(Ord. 22878.)

A.

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, paramedical, banking, financing, 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 any condition related thereto.

B.

No person shall make, print, publish, advertise or disseminate in any way any notice, statement or advertisement with respect to any business establishment or public accommodation which indicates that a person is doing or will do anything prohibited by this section.

C.

Exceptions:

Nothing in this section shall apply to any blood bank, blood donation facility, sperm bank, sperm donation facility, organ 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.

Nothing in this section shall be construed to prohibit any act specifically authorized by the laws of the state of California or any actions taken by or under the direction of the health department of the county of Santa Clara in order to protect the public health.

(Ord. 22878.)

A.

It shall be unlawful educational practice for any person to do any of the following:

Deny admission, or impose different terms or conditions on admission, as a result of the fact, in whole or in part, that a person has AIDS or any condition related thereto.

Deny any individual the fall and equal enjoyment of, or impose different terms or conditions upon the availability of, any facility owned or operated by or any service or program offered by an educational institution as a result of the fact, in whole or in part, that a person has AIDS or any conditions related thereto.

B.

Exceptions:

It shall not be an unlawful educational practice for a religious or denominational institution to limit admission, or give other preference to applicants of the same religion.

Nothing in this section shall apply to public schools, including public colleges or universities as a matter of law.

Nothing in this section shall be construed to prohibit any act specifically authorized by the laws of the state of California or any actions taken by or under the direction of the health department of the county of Santa Clara in order to protect the public health.

(Ord. 22878.)

No

person shall require another to take any test or undergo any medical procedure designed to show or help show that a person has or does not have AIDS, any condition related thereto or the AIDS antibody.

A.

This section does not apply to an employer who can show that the absence of AIDS is a bona fide occupational qualification.

B.

Nothing in this section shall be construed to prohibit any act specifically authorized by the laws of the state of California or any actions taken by or under the direction of the health department of the county of Santa Clara in order to protect the public health.

(Ord. 22878.)

A.

It shall be unlawful 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:

Use of any city facility or city service on the basis (in whole or in part) of the fact that such person has the medical condition AIDS or any condition related thereto.

Any service, program or facility wholly or partially funded or otherwise supported by the City of San José, on the basis (in whole or in part) of the fact that such person has the medical condition AIDS or any condition related thereto. This subsection shall not apply to any facility, service or program which does not receive any assistance from the City of San José which is not provided to the public generally.

(Ord. 22878.)

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 condition related thereto.

B.

Retaliation. It shall be unlawful for any person to do any of the acts described in this chapter to retaliate against a person because a person:

Has acted in support or opposition to any act or practice made unlawful by this chapter;

Has acted in support of this chapter and its enforcement;

Has filed a complaint in any court where such complaint is based upon any act or practice made unlawful by this chapter;

Has testified, assisted, or participated in any way in any investigation, proceeding, or litigation under this chapter.

(Ord. 22878.)

Any person who violates any of the provisions of this chapter or who aids in the violation of any provisions of this chapter is liable for each and every such offense for the actual damages thereof, in such amount as may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than one thousand dollars, and such costs and attorney's fees as may be determined by the court. In addition, punitive damages may be awarded in an appropriate case.

(Ord. 22878.)

A.

Civil Action. Any person aggrieved by an act prohibited by this chapter may enforce the provisions of this chapter in a civil action.

B.

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

C.

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

(Ord. 22878.)

Judicial actions under this chapter must be filed within two years of the alleged discriminatory act.

(Ord. 22878.)

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

(Ord. 22878.)