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Q & A : JOHN J. DURAN AND MARJORIE RUSHFORTH : Taking AIDS Patients’ Cases : Lawyers Seek Remedies for Discrimination on the Job

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Times Staff Writer

As of April 30, 1,049 people in Orange County were known to have contracted AIDS. Of that number, 614 had died.

For some, the despair associated with terminal illness is aggravated by the loss of their jobs, or the fear that they might lose them. Federal and state laws prohibit such discrimination against those with acquired immune deficiency syndrome--and also against those infected with the HIV virus that causes AIDS--but the process of seeking redress can take so long that the patient can die before the case is heard.

In most such cases, a worker claiming discrimination cannot sue an employer until after a complaint has been filed with the state Department of Fair Employment and Housing and the department determines that there is a basis for a discrimination suit.

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The AIDS anti-discrimination ordinance the Orange County Board of Supervisors rejected June 13 would have given those individuals claiming AIDS discrimination the right to sue immediately.

John J. Duran and Marjorie Rushforth are lawyers active in the fight to end discrimination against people with AIDS.

Duran, 29, said he began representing victims of discrimination for a personal reason: “One of my best friends died of AIDS suddenly in 1984. Since the day he died, I vowed I would be involved in this issue until the day a cure is found.”

Duran is also co-chairman of the Eleanor Roosevelt Lesbian and Gay Democrats in Orange County, and co-chairman of the Southern California chapter of the Lobby for Individual Freedom and Equality, an AIDS political action group in Sacramento.

Rushforth, 46, is the attorney who represented Irvine teacher Vincent Chalk, an AIDS patient who successfully fought to be returned to the classroom after being reassigned to a desk job by the Orange County Department of Education.

Rushforth has been practicing since 1978 and is the mother of two children.

Duran and Rushforth recently spoke with Times Staff Writer Gregory Crouch about discrimination against those with AIDS.

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Q. How widespread is discrimination against people with AIDS in Orange County?

A. Rushforth: It’s pervasive. Where anyone has AIDS or is known to have HIV infection or is suspected of either of those conditions, there are usually problems on the job.

Duran: I think between our two offices, Marge and I get three to five calls a week--at least. The calls range from everything from “Should I tell my employer?” to “I have told my employer and now I fear retribution.”

Rushforth: Or “I told my employer a month ago and now I’m not working.”

Q. Do you have any idea how many actual, documented cases of discrimination occurred in the last year?

A. Rushforth: We never documented it. We never kept track. It is just something that is always an issue.

Duran: When these people who call in are informed about what they have to do to get their job back, many abandon hope of ever going back to the workplace. Others would rather take care of their physical health than take on the stress of litigation or a legal battle.

Rushforth: The unwritten issue there is that the potential litigant will try to figure out whether he thinks he has enough life left to do the fight. Once you are diagnosed with AIDS, the emphasis all around you is to provide tranquility because that tranquility helps your immune system. Fighting to be reinstated in the job is not an activity that provides you with tranquility. I have even had people with HIV infection and AIDS who have wanted custody or visitation with children and have abandoned fighting for it because it’s just too stressful.

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Duran: The other factor, of course, is the cost of pursuing legal remedies. Neither Marjorie’s firm nor this firm is a public service agency. Quite frankly, if we took every case that called in, we would go belly-up. The person with HIV who loses his or her job is not likely to have the attorney fees to launch a legal battle.

Rushforth: That is why it is frustrating that the Department of Fair Employment and Housing remedy doesn’t seem to have been effective yet. Remember, the only DFEH case was Chadbourne vs. Raytheon, which was resolved after Chadbourne was dead. (A Santa Barbara County Superior Court judge in 1988 upheld a California Fair Employment and Housing Commission ruling that said, among other things, that AIDS patients such as John Chadbourne of Santa Barbara are protected by state laws guarding the physically handicapped against job discrimination. Raytheon Corp. in Goleta had refused to allow Chadbourne to return to work when it was learned that he had AIDS. Chadbourne died in 1985 of AIDS-related cancer, three years before the court ruling.)

Q. What kinds of discrimination have you seen?

A. Rushforth: One fellow we represented was a bright, go-getting young man who was wooed by the owners of a small manufacturing company to go work for them. It was so small they would bring the children into the workplace some days. And our client saw these people socially and house sat for them and took care of their kids while they were off for the weekend. After about a year of employment, he disclosed to them he was gay. Several months later, he got a cold. The wife of the owner fired him because she thought he had AIDS and would give it to her and her children. We filed suit on his behalf, and we reached a money settlement without going to court.

Duran: There was a married couple in Seal Beach where a husband was fired from his job because he had HIV infection. He was unable to secure employment, missed his mortgage payments, which cast him and his wife out in the streets. And to top things off, their oldest child, an adult, kidnaped the younger children because he feared mom and dad were both HIV positive. The last I heard, which was about eight months ago, they were homeless in Long Beach, living on the streets--no health care, no medical insurance, no home and no knowledge of the whereabouts of any of their children.

Q. Has there been an increase in discrimination in the workplace against non-infected homosexuals because of AIDS?

A. Rushforth: Generally speaking, I believe unmarried men under the age of about 45 are experiencing difficulties securing new employment.

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Duran: I’m chuckling to myself because as we get to the second wave of the epidemic, we are seeing non-gay people with HIV and they are getting the double whammy of not only being accused of carrying the virus but of being discriminated against for the perception of being gay.

Q. Are there any laws that protect gays and lesbians not infected with HIV from employment discrimination?

A. Rushforth: Their remedy is the Department of Fair Employment and Housing. You have to torture the definitions of the law, but there is a line of reasoning that if you are perceived to have AIDS merely because you are gay, then you are perceived handicapped and the DFEH will investigate your complaint. Additionally, there are some city ordinances such as those in Laguna Beach and Irvine that protect gays and lesbians from discriminatory employment practices.

Duran: The other possible solution is Sections 1101/1102 of the state labor code, which protects the political activities and statements of employees. It’s arguable that just being out of the closet is a political statement, but that has never been tested.

Q. What should people with the HIV infection or with AIDS do to protect themselves against discrimination on their jobs?

A. Rushforth: They should keep their diagnosis to themselves for as long as possible. After all, they are no threat to their co-workers or to members of the public they might come in contact with.

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Duran: And take care of themselves. Go to the AIDS Services Foundation. I always inquire about their physician to make sure they are getting current and up-to-date health care.

Rushforth: Then after that, we attempt to help them strategize, utilizing their health benefits in terms of making sure they are in a position when they do terminate to go on their company disability benefits and to maintain their health insurance as long as possible.

Q. What should employees do if they believe they are being discriminated against at work?

A. Rushforth: Keep a journal. Go check your personnel file. Make an index of the documents in your personnel file so that if some of them disappear later, you will have at least some evidence that a flattering employee review used to be in your file--even though it may later become lost between the office and the courtroom.

Duran: Like most civil cases, the burden of proof, absent something obvious, is whether you can prove your case by relying on information that implicitly shows discriminatory intent. For example, if you have an employee with a history of excellent performance reviews and all of a sudden he or she is terminated after disclosure of HIV, it’s easier to show discriminatory intent. But if you have an employee with a checkered past, then the question becomes whether the reason for termination was HIV infection or poor performance.

Q. What should employers do if their employees tell them they have AIDS or HIV infection?

A. Rushforth: The first thing they ought to do is inform themselves about the disease. They ought to schedule an AIDS education program for all their employees that is not necessarily keyed to any news put out that someone in the company has AIDS.

Duran: They should treat AIDS like any other life-threatening or catastrophic illness in the workplace.

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Rushforth: There are a number of legal guidelines they must follow. For instance, it is an improper employer practice to permit co-workers’ objections to working with a person with AIDS to cause the firing or displacement of the person with AIDS. There are cases that have held that an employee who was fired for refusing to work with a person with AIDS is not entitled to reinstatement.

Duran: In developing a company’s AIDS policy, not only do they want to be in compliance with state and federal law but also with a local ordinance--if any--and any applicable collective bargaining agreement in the event workers belong to a union.

Q. Are there any local corporations that have treated employees with AIDS or HIV infections particularly well?

A. Duran: Some of the more admirable companies are Taco Bell, Disneyland, Digital Equipment, The Gap and American Airlines. They sensitize key managers and other employees about AIDS, educate them about the transmission of HIV and bend over backward to accommodate the employee if the employee’s health begins to fail. They guard the employee’s health benefits and cooperate if that employee ever makes the transition to disability, whether temporary or permanent.

Q. Where can employers turn for direction in regard to AIDS in the workplace?

A. Rushforth: There are a number of excellent employee handbooks put out by such companies as Levi Strauss, Bank of America, Pacific Mutual. These are handbooks for management on how to deal with AIDS.

Duran: They want to make sure their company policy of confidentiality regarding medical information is in place. That is where employers could be opening themselves up to liability because state law requires confidentiality of medical information.

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Q. Do you know of any employers who have violated the confidentiality laws?

A. Rushforth: We’ve seen (it happen that) after a claim is filed for AZT or Pentamidine aerosol (these are treatments for AIDS) with the claims department of an employer that somehow the word gets out through human resources back to management. So the key is to make sure your benefits department keeps a lid on confidential medical information.

Q. How can a person with AIDS avoid being fired for excessive absence because of illness?

A. Rushforth: The toughest problem used to be when to figure it’s time to go out on disability and when your absences due to occasional illnesses gave your employer the right to terminate you because you simply weren’t there to do your job. The trick was to go out on disability before that time came. Now, with the supportive new medications, there is far less time loss on the job even with an AIDS diagnosis. We don’t know how long the working life of a person with AIDS is going to be. We are just starting to see the guys who have been well medicated throughout the course of their infection. Take Vince Chalk, for example. He went through tremendous stress during his litigation, but here we are two years later and he is still a productive employee.

Q. How do you address the concerns of the small businessman or businesswoman who may worry that the health care costs of an employee with AIDS could bankrupt the business?

A. Rushforth: There have been a lot of hypotheticals thrown out by people who focus on the businessman’s right to define his own business environment. And the hypotheticals run along the lines of, ‘Why should we make a man lose his restaurant because he continues to employ a person with AIDS as a waiter?’ We know of no businesses whose gross income has fallen as a result of maintaining a person with AIDS in employment.

Q. Don’t an employer’s insurance rates go up if he or she employs several people with AIDS?

A. Rushforth: Sure. This is the big unresolved problem. When we resolve it, most of the other problems with AIDS discrimination will probably work out. The insurance cost is the disincentive to hire single men.

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Duran: But the courts have held that the possibility of increased costs of insurance is not a rational reason for employers to discriminate against the physically handicapped.

Q. Employers sometimes worry that the co-workers of a person with AIDS may overreact if they find out the person has the disease. Is this a valid concern?

A. Duran: What happens is that a lot of co-workers rally around the person with AIDS with love and support, not fear. So the employers’ concerns are sometimes unfounded. These are people whom the person with AIDS has worked with day in and day out for years. They are not going to leave him unsupported, just as they wouldn’t abandon a co-worker with cancer or leukemia.

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