Curtain Rises on Broadway AIDS Discrimination Case

In what legal experts see as the first big AIDS discrimination case to hit the entertainment industry, a New York State Supreme Court judge has ruled that evidence can be presented in choreographer Michael Shawn’s $2.75-million suit against Broadway producers Marvin Krauss and James M. Nederlander.

Shawn’s suit, filed March 1, accuses Krauss and Nederlander of firing Shawn unjustly from the short-lived 1988 Broadway musical “Legs Diamond” starring Peter Allen. Shawn alleges that they fired him after learning that he had tested positive for HIV, the virus believed to cause AIDS.

The producers deny that this is an AIDS discrimination case and claim that Shawn was fired for failing to live up to his contract. Harvey Fierstein, who co-authored “Legs Diamond,” said that “it just doesn’t make sense that this is an AIDS case. Marvin Krauss also produced ‘La Cage aux Folles,’ and whether people were sick or not they worked. There were other reasons besides health involved in Michael’s being fired. And I worry that if Michael loses, it’ll hurt legitimate AIDS discrimination cases.”

At a pre-trial hearing July 21, Judge Beverly Cohen ruled to allow evidence such as depositions, affidavits and letters of evidence to be presented in court. In April, the producers’ lawyer, Les Fagan, had filed a partial motion to dismiss the case. Fagan asked for a summary judgment to prevent the case from going to trial. No action has yet been taken on that motion.

“The question is whether AIDS is going to be treated differently than all other disabilities under the discrimination laws--and whether producers are somehow exempt from those laws,” said Shawn’s attorney, Margaret Winter. She added that a trial date “is way off into the future.”

“I feel it’s important to punish James Nederlander and Marvin Krauss, and to set precedents that prevent men like this from allowing AIDS hysteria to ruin artists’ careers,” Shawn said last week from his Manhattan apartment.

“Last week’s court date provided us, I think, with our first real victory,” Shawn said. “I think Fagan wants to set a precedent that big-budget musicals should be treated differently than other places of employment when it comes to AIDS discrimination.”

Fagan refused to comment, saying that he did not “care to litigate the case in the press.” He added, however, that “it was nonsense to call this a case of AIDS discrimination” and felt “confident that the court would see no basis in this charge.”

Nederlander could not be reached for comment. (The Nederlander organization, the second-largest theater owner on Broadway, operates the Pantages and Greek theaters in Los Angeles.)

Shawn, 45, who had worked with Allen before “Legs Diamond,” said that he was thrilled when Allen asked him to choreograph for the Broadway show. “This was my big break,” Shawn said.

However, in August, 1988, when auditions were over and much of the choreography had been set, Shawn came down with fever and a bad cough. Shawn said that only his close associates knew that his roommate had died from AIDS.

Shawn, who said that he never missed a day of work, took his doctor’s advice and checked into the hospital for diagnostic tests on Aug. 10. He says that preproduction work had already been completed.

According to the March 1 complaint, Krauss called Shawn repeatedly during his second day in the hospital, screaming, “This is a $4-million show. I want a guarantee that you won’t break down before the opening.” The next day, the complaint claims, Krauss added: “Jimmy Nederlander is on my back to fire you.”

Eventually, when Shawn learned that his ailment was related to a sinus condition that could be cured with antibiotics, his doctor, Sharon Lewin, wrote a letter to Krauss saying that her patient was “functioning at full capacity,” and “could return to work.”

But the letter came too late. According to the complaint, Krauss had already telephoned Dr. Lewin, who explained that while Shawn was HIV-positive, he was “functioning at close to 100% normal capacity and there was no medical reason why plaintiff could not perform his job.” Within the hour, a letter was hand-delivered to Shawn, informing him that he was fired.

(While Shawn was paid his $14,000 fee, his union, the Society of Stage Directors and Choreographers, is seeking the royalties his contract specified, which could amount to $20,000).

An Aug. 29 letter from the “Legs” attorney to Shawn’s union stated that Shawn “was not able to complete several scheduled work days and then he was not able to work at all.”

Shawn said that these allegations are “blatantly false.” Mary Rotella, Shawn’s assistant on the show, confirmed that Shawn had not missed any work days.

Shawn has worked consistently as a choreographer and dance teacher since the firing, even though he admits that his health has deteriorated recently.

Mitchell Karp, who handles the AIDS discrimination cases for the New York City Commission on Human Rights, said that while he couldn’t confirm whether Shawn’s case “was the only such one in the entertainment industry,” he was certain it was the largest.

Karp added that under New York State’s Human Rights Law, “it is illegal for employers to fire disabled employees--even if they have AIDS or HIV infection--as long as they can perform their duties in a reasonable manner.”