AIDS Ruled No Basis for Firing : State Employment Panel Cites Laws Protecting Handicapped

In a precedent-setting ruling, the California Fair Employment and Housing Commission declared Tuesday that AIDS patients are protected by state laws that guard the physically handicapped against job discrimination.

Overturning the advisory decision of a state administrative judge, the seven-member commission unanimously ruled that employers cannot fire or otherwise discriminate against people with AIDS because of fear of contagion in the workplace.

“What this means is people who have AIDS can’t be fired for it,” said Gloria Barrios, a staff attorney in the Department of Fair Employment and Housing who handled the case. “A lot of these people do get fired and they don’t go public; they don’t file lawsuits. And what I hope this decision says to them is that they can.”

Claimant Dies

The ruling came in a complaint brought by John E. Chadbourne of Santa Barbara, but it came too late to put him back on the job. Chadbourne, a quality control analyst at Raytheon Co. in Goleta, was diagnosed as having AIDS in December, 1983. Although his condition improved and his doctor said he was fit to work, Raytheon refused to permit him to return to his job and forced him to take medical leave. He filed the complaint, but died of AIDS-related cancer on Jan. 6, 1985.

Although the opinion is subject to appeal through the courts, it was cheered by homosexual rights activists and helps clarify murky public policy issues regarding AIDS discrimination--at least in California.

“This is something we as a movement have been striving for for some time,” said Jean O’Leary, executive director of National Gay Rights Advocates, which helped argue Chadbourne’s case. “This is the first major employment case of its kind in the country and definitely the first in finding AIDS as a handicap. . . . It’s a very strong warning to employers.”

Supports City Ordinances

The ruling buttresses city ordinances prohibiting AIDS discrimination in Los Angeles, West Hollywood, San Francisco, Berkeley and Oakland. Although the commission declined to award punitive damages in the Chadbourne case, it “left open the possibility” that other employers in future AIDS discrimination cases may be forced to pay punitive and compensatory damages, said Steve Owyang, the commission’s executive secretary.

The decision also parallels the position of the office of civil rights of the federal Department of Health and Human Services, which has emphatically stated that the blood-borne AIDS virus is infectious only through intimate contact, such as sexual intercourse or the sharing of intravenous needles.

However, the opinion contradicts that of the U.S. Justice Department. In a memo issued last year, the Justice Department asserted that federal contractors who fire AIDS victims based on the fear of contagion cannot be challenged under federal law protecting the handicapped. That opinion was widely criticized by public health authorities who said it reinforced unfounded fears that AIDS could be transmitted in casual contact.

Gov. George Deukmejian has twice vetoed bills that would have explicitly forbidden job discrimination against AIDS victims. One of his explanations has been that he believes the discrimination is already prohibited by state law, an interpretation that was also followed by the commission. All seven commissioners are Deukmejian appointees.

Chadbourne’s case itself matriculated through the contradictory and confusing employment policies regarding AIDS patients on the state and federal levels. When Raytheon refused to allow Chadbourne to return to work after a three-week hospitalization, he filed complaints with both state and federal authorities.

Chadbourne was healthy enough to perform his job from January through October, 1984, Barrios said. During that time, he did volunteer work at the Gay and Lesbian Community Center in Santa Barbara. Raytheon’s refusal to allow him to return to work created emotional stress and an economic strain, Barrios said. “He felt very, very strongly that people with AIDS should not be terminated,” she said.

Federal Anti-Bias Laws

As a defense contractor, Raytheon is required to follow federal laws prohibiting discrimination against the handicapped. However, in Chadbourne’s complaint to federal authorities, the government ruled in Raytheon’s favor, saying that medical evidence regarding contagion was inconclusive.

But Chadbourne’s case was still pending before state authorities. Last August, state Administrative Law Judge Richard J. Lopez ruled that “AIDS could not be considered a physical handicap as a matter of law.” Raytheon’s action, Lopez said, was the “only reasonable judgment an employer could make given the information then available.”

Lopez’s ruling was subject to review by the Fair Employment and Housing Commission, which decided to take up the case and Tuesday overturned Lopez’s decision.

Under the state law, employers can terminate employees for health reasons “if they can’t do the job,” Barrios said. “That’s an automatic defense. The employer wins. If they can do the job, but are a danger to themselves or others, that also is a defense.

“In this case, we said Chadbourne can do the job and he isn’t a danger to self. He would have been as much at risk of opportunistic infections going to market as at work.”

Medical Consensus

In early 1984, when Raytheon refused to allow Chadbourne back on the job, “there was a strong medical consensus . . . including all of the experts and organizations that (Raytheon) contacted, that AIDS could not be transmitted through the kind of contact that Chadbourne’s co-workers would have had with him,” the commission said.

In ruling that AIDS is a physical handicap under the law, the disease joins the ranks of such maladies as diabetes and epilepsy, Barrios said.

In addition to declaring AIDS a handicap, the commission ordered Raytheon to provide $4,300 in back pay, plus interest, to Chadbourne’s estate. The total will be about $6,000.

The commission decided against ordering Raytheon to pay compensatory and punitive damages.

“The unique circumstances of this case convinced us that compensatory damages would not be appropriate here,” the commission said in its 24-page ruling. “We fully recognize that Chadbourne suffered significant emotional injury as a result of respondent actions.

“But we also recognize that the respondent took these actions in early 1984 in a state of considerable uncertainty and we therefore believe that we cannot in fairness order respondent to pay compensatory damages in this case.”

Raytheon spokesman Jeff Charney said the company has not decided whether to appeal the ruling through the courts.

Medical Benefits

“Obviously we are disappointed,” Charney said. “We do feel we acted reaonsably and in good faith and didn’t violate Mr. Chadbourne’s rights.”

While Chadbourne was on medical leave, Charney said, the company provided “all medical and weekly disability income.” The medical care totaled “a little more than $70,000,” the spokesman said.

Barrios said the state has handled about 50 complaints of job discrimination from AIDS patients, most of which are mediated successfully by the agency. She said she hoped other cases could be handled more expeditiously than Chadbourne’s.

“One of the biggest problems in doing AIDS cases is that the clients die,” she said. “They don’t live long enough to see the benefit.”

The AIDS virus attacks the body’s immune system, leaving the victim vulnerable to a variety of infections and tumors. It is transmitted by sexual contact, by contaminated blood and from an infected mother to her newborn. As of Feb. 2, 30,396 Americans had developed AIDS and 17,338 had died, according to the federal Centers for Disease Control.