AIDS Not a Physical Handicap Protected by Laws, Judge Says

In a major case closely watched by employers, homosexual rights activists and public health officials, a state hearing officer Wednesday declared that AIDS is not a physical handicap as far as laws against discrimination in employment are concerned.

The opinion, which is subject to review by the state Fair Employment and Housing Commission, appeared to make even murkier the turbid issue of whether AIDS patients are protected by existing anti-discrimination prohibitions.

The opinion of State Administrative Law Judge Richard J. Lopez was submitted to the state commission. The commission can adopt, rewrite or enact its own decision in the case of AIDS patient John E. Chadbourne, who was put on permanent medical leave in 1984 by his employer, the Raytheon Co. of Goleta.

Subject to Ratification

Unlike the ruling of a court judge, an opinion of an administrative law judge does not have the force of law. The proposed decisions of administrative law judges, who largely act as referees in administrative disputes, are usually subject to ratification by superiors in government and can be appealed.

The Raytheon case action was announced 11 days after Gov. George Deukmejian vetoed legislation by Assemblyman Art Agnos (D-San Francisco) that was aimed at preventing AIDS patients from being fired or denied housing. The veto touched off a landslide of criticism.

The announcement Wednesday of Lopez’s ruling followed by several hours an appeal by Agnos to Deukmejian to reconsider his position and support such legislation when the Legislature reconvenes next week for the wrap-up of its two-year session.

The Agnos bill proposed defining AIDS as a physical handicap and disability, subject to anti-discrimination provisions of the Fair Employment and Housing Act and the state Civil Code. In a veto message, Deukmejian said that “our compassion for the victims of AIDS should not cause us to make a significant change in existing law without a compelling need to do so.”

The governor seemed to suggest that AIDS patients now have anti-discrimination remedies available to them through the Department of Fair Employment and Housing, which he said had received “only 20 complaints alleging discrimination.”

The department is charged with enforcing anti-discrimination laws, and the commission acts as the arbiter in disputes that are not settled at the department level.

The Raytheon case is the first AIDS employment discrimination matter to reach the Fair Employment and Housing Commission, and has been carefully watched.

Took Medical Leave

Chadbourne, a three-year employee of Raytheon, took a medical leave in December, 1983, after learning that he was afflicted with AIDS. In January, 1984, he applied for reinstatement to his job as a quality-control analyst and was turned down. Instead, the company left him on medical leave with normal benefits such as income protection and medical and life insurance coverage.

He died in January, 1985. Subsequently, the department, acting on behalf of the estate of Chadbourne, charged that Raytheon illegally discriminated against him because of his fatal disease when it refused to reinstate him.

But Lopez found that the department had no basis for its action, and declared that under pertinent state statutes “AIDS could not be considered a physical handicap as a matter of law.”

Lopez said he found nothing to indicate that the Legislature “intended or contemplated that AIDS--an incurable disease (syndrome); highly contagious; invariably fatal, with cause unknown--be included within the statutory definition of physical handicap.”

Lopez said Raytheon decided that to return Chadbourne to his workplace “would jeopardize or endanger not only his health and safety but the health and safety of other employees.” He said the decision was the “only reasonable judgment an employer could make given the information then available to it.”