Tiburon Municipal Code Ch. 20C Discrimination Prohibited

The town council finds that discrimination against persons with Acquired Immune Deficiency Syndrome (AIDS), with AIDS-related conditions (ARC), or otherwise infected with Human Immunodeficiency Virus (HIV), and against persons believed to have AIDS, ARC or otherwise infected with HIV, discourages individuals from obtaining medical treatment, counseling, education and other essential services. In order to encourage such persons to seek diagnosis and treatment and to reduce the risk of HIV transmission to others, the town council intends to prohibit discrimination against such persons in matters affecting employment, real property transactions, business practices and education.

(Ord. No. 348 N.S., § 1 (part))

The following words and phrases, whenever used in this chapter, shall be construed as set forth in this section:

"AIDS" means Acquired Immune Deficiency Syndrome, an advanced or terminal condition caused by infection with HIV.

"ARC" means AIDS-related conditions, which are manifestations of infection with HIV that are less severe, or different, than the manifestations of AIDS.

"Discriminate against" means to act or to practice in a prejudicial manner on a categorical rather than on an individual basis, to the detriment of a person.

"HIV infection" means the condition of being infected with HIV, which may be asymptomatic or manifested by ARC or AIDS.

"Real property transaction" means any transaction affecting the use of real property, including, but not limited to, the sale, lease, rental or financing of real property.

Terms such as "business establishment," "employer," "business transaction" and "person" shall be construed to have their common meanings or as defined in the Tiburon Municipal Code.

(Ord. No. 348 N.S., § 1 (part))

Within the Town of Tiburon it is unlawful for any person, business establishment or employer to discriminate against any person on the basis, in whole or in part, of being infected with or suspected of being infected with HIV.

(Ord. No. 348 N.S, § 1 (part))

(a) Specific acts of unlawful discrimination on the part of an employer, employment agency or labor organization, or any agent or employee thereof, are exemplified by, but not limited to, doing or attempting to do with regard to any person protected hereunder any of the following:

(1) To fail or refuse to hire any qualified person, or to discharge any person without sufficient cause, or otherwise to disadvantage any person with respect to compensation, terms, conditions or privileges of employment including promotion;

(2) To 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;

(3) To fail to refuse to refer for employment any person, or otherwise to discriminate against any person protected hereunder who applies to an employment agency;

(4) To fail or refuse to include in the membership of a labor organization or to otherwise discriminate against any person; or to limit, segregate or classify such membership; or to classify or fail or refuse to refer for employment any person in any way which would 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;

(5) 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-the-job training program.

(b) With respect to the announcement of employment opportunities, membership in a trade or labor organization, classification of persons seeking the assistance of an employment agency, or referral of any person for employment or training, it is unlawful for any person or organization to print, publish, advertise or disseminate in any way any information which would encourage discrimination against persons protected hereunder.

(c) Nothing contained in section 20C-4 shall be deemed to prohibit selection, rejection or dismissal of an employee based upon a bona fide occupational qualification.

(1) A "bona fide occupational qualification" shall include but not be limited to the capacity or lack of 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.

(2) 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:

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

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

(d) 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 plans are not a means to evade the purpose of this chapter, and provide further that no such system shall provide an excuse for failure to hire any person.

(e) Nothing in section 20C-4 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 officer of the county of Marin in order to protect the public health.

(Ord. No. 348 N.S., § 1 (part))

(a) Specific acts of unlawful discrimination on the part of any person or business organization engaged in or associated with buying, selling, leasing or renting real property are exemplified by, but not limited to, doing or attempting to do with regard to any person protected hereunder any of the following:

(1) To interrupt, terminate, or fail or refuse to initiate or conduct any real property transaction;

(2) To require different terms for such transaction than the terms that would prevail for any or all other buyers, lessees or renters;

(3) To represent falsely that an interest in real property is not available for transaction;

(4) To include in the terms or conditions of a transaction in real property any clause, condition or restriction adversely affecting the buyer, lessee or renter;

(5) To refuse to lend money, guarantee a loan, accept a deed of trust or otherwise refuse to implement a real property transaction in the same manner that would prevail for any or all other buyers, lessees, renters or owners of real property for the purchase, acquisition, construction, alteration, rehabilitation, repair or maintenance of such property;

(6) To impose special or different conditions on real property transaction financing that would adversely affect persons protected hereunder;

(7) To refuse or restrict facilities, services, repairs or improvements for any tenant, renter or lessee.

(b) With respect to notices, statements and advertisements regarding real property transactions, it shall be unlawful for any person or organization to print, publish, advertise or disseminate in any way any information which would encourage discrimination against persons protected hereunder.

(c) Nothing in section 20C-5 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 officer of the county of Marin in order to protect the public health.

(Ord. No. 348 N.S., § 1 (part))

(a) It is an unlawful business practice for any person to deny any individual protected hereunder 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, legal, food, health care and convalescent services of any kind whatsoever.

(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 would encourage discrimination against any person protected hereunder.

(c) Nothing in section 20C-6 shall apply to any blood bank, blood donation facility, surrogate mother or surrogate mother facility, sperm bank, sperm donation facility, organ donation facility, or to any like service facility or establishment engaged in the exchange of products containing elements of human blood, sperm or other tissue.

(d) Nothing in section 20C-6 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 officer of the county of Marin in order to protect the public health.

(Ord. No. 348 N.S., § 1 (part))

(a) It is unlawful for any person or educational institution to do or attempt to do with respect to any person protected hereunder any of the following:

(1) To deny admission, or to impose different terms or conditions of admission to any facility owned or operated or any service or program offered by an educational institution;

(2) To deny any individual 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.

(b) It shall not be an unlawful discriminatory practice under this section for a religious institution to limit admission, or give other preference to applicants of the same religion.

(Ord. No. 348 N.S., § 1 (part))

(a) No person shall require another person to take an HIV antibody test, or any other test or to undergo any medical procedure designed to determine or to help to determine that a person is or is not infected with HIV.

(b) Nothing in section 20C-8 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 human blood, sperm or other tissue.

(c) Nothing in section 20C-8 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 officer of the county of Marin in order to protect the public health.

(Ord. No. 348 N.S., § 1 (part))

It is unlawful for any person to deny any person protected hereunder the full and equal enjoyment of, or to impose different terms and conditions on the availability of, any of the following:

(1) Any town facility;

(2) Any facility wholly or partially funded or otherwise supported by the town.

(Ord. No. 348 N.S., § 1 (part))

It is 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 is infected with HIV or suspected of being infected with HIV.

(Ord. No. 348 N.S., § 1 (part))

It is unlawful for any person to do any of the acts described in this chapter as retaliation measures against a person because that person has done any of the following:

(1) Has opposed any act or practice made unlawful by this chapter;

(2) Has supported this chapter and its enforcement;

(3) Has filed a complaint hereunder in any court;

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

(Ord. No. 348 N.S., § 1 (part))

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

(b) 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) The provisions of this chapter shall not be construed to create criminal penalties for violations hereof, nor shall anything in this chapter be deemed to preclude any aggrieved persons from seeking any remedy otherwise provided by law.

(Ord. No. 348 N.S., § 1 (part))

Judicial actions under this chapter must be filed within one year of the alleged discriminatory act.

(Ord. No. 348 N.S., § 1 (part))

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

(Ord. No. 348 N.S., § 1 (part))

This chapter shall not apply to any act of discrimination to the extent that regulating such act is preempted by state or federal law.

(Ord. No. 348 N.S., § 1 (part))