Chapter 8.50
PROHIBITION OF AIDS AND RELATED DISCRIMINATION IN EMPLOYMENT, REAL ESTATE TRANSACTIONS, EDUCATIONAL INSTITUTIONS, BUSINESS PRACTICES AND COUNTY FACILITIES

Sections:

8.50.010    Findings.

8.50.020    Purpose of chapter.

8.50.030    Definitions.

8.50.040    Employment.

8.50.050    Real property transactions.

8.50.060    Unlawful business practices.

8.50.070    Educational institutions.

8.50.080    AIDS testing.

8.50.090    County facilities.

8.50.100    Association and retaliation.

8.50.110    Civil liability.

8.50.120    Enforcement.

8.50.130    Limitation on actions.

8.50.140    Nonwaiverability.

8.50.150    Severability.

8.50.010 Findings.

(A)    The medical condition described as Acquired Immune Deficiency Syndrome and commonly known as AIDS is a life-threatening disease which has the potential to affect every segment of our County’s population.

(B)    No evidence exists to indicate that the disease is spread through casual contact, such as contact at work or at school, through the air or water, or through the handling of food by persons having AIDS or AIDS related conditions (ARC).

(C)    Individuals with AIDS or AIDS related conditions are subject to discrimination because of their medical condition. This discrimination may occur with regard to employment, testing, education, real estate transactions, business establishments, services, accommodations and associations.

(D)    Such discrimination creates discord and deprives the County of the fullest utilization of its resources and capacity for development and advancement, and may further pose a direct public health threat in that it may deter persons from pursuing medically indicated diagnosis and treatment.

(E)    Such discrimination may pose a threat to the health, safety and welfare of the community, and existing State and Federal restraints on arbitrary discrimination are inadequate to meet the particular problems of this County. [Ord. 3973 § 1, 1989].

8.50.020 Purpose of chapter.

This chapter is enacted to eliminate discrimination against persons with AIDS or any medical sign, condition or symptom related thereto. Toward this end, this chapter is adopted to prohibit such discrimination with respect to employment, real property transactions, educational institutions, business practices, AIDS testing, and County facilities. [Ord. 3973 § 1, 1989].

8.50.030 Definitions.

As used in this chapter:

(A)    “AIDS” means Acquired Immune Deficiency Syndrome (AIDS), or any conditions related thereto. For the purposes of this chapter, AIDS also includes the diagnosis or clinical finding of AIDS Related Complex (ARC) as well as testing positive for exposure to Human Immuno-deficiency Virus (HIV), whether or not any clinical manifestations of AIDS are currently present.

(B)    “Business establishment” means any entity, however organized, which furnishes goods or services to the general public. An otherwise qualified establishment which has membership requirements is considered to furnish services to the general public if its membership requirements:

(1)    Consist only of payment of fees; or

(2)    Consist of requirements under which a substantial portion of the residents of the County of Santa Cruz would qualify.

(C)    “Employer” means every person, including any public service corporation, or any person acting directly or indirectly as an agent of an employer.

(D)    “Person” means any natural person, firm, corporation, partnership, or other organization, association or group of persons however organized.

(E)    “Persons with AIDS” or “a person with AIDS” includes those who have AIDS, or those who are suspected of or perceived as having AIDS, or who are believed to be at risk of contracting such a condition.

(F)    “Real property transaction” means any transaction affecting real property, including but not limited to the sale, lease, rental or financing of real property. [Ord. 3973 § 1, 1989].

8.50.040 Employment.

(A)    Unlawful Employment Practices. It shall be an unlawful employment practice for any employer, employment agency or labor organization, or any agent, officer or employee thereof to do or attempt to do any of the following acts as a result of the fact (in whole or in part) that a person has AIDS or any condition related thereto:

(1)    Fail or refuse to hire any person, discharge any person, or otherwise discriminate against any person with respect to compensation, terms, conditions or privileges of employment, including promotion;

(2)    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)    Fail or refuse to refer for employment any person, or otherwise to discriminate against any person;

(4)    Fail or refuse to include in its membership or otherwise discriminate against any person; or limit, segregate or classify its membership; or classify or fail or refuse to refer for employment any person in any way which could 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)    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;

(6)    Print, publish, advertise or disseminate in any way, or cause to be printed, published, advertised or disseminated in any way, any notice or advertisement with respect to employment, membership in, or any classification or referral for employment or training by any organization, which indicates an unlawful discriminatory act or preference based on AIDS.

(B)    Bona Fide Occupational Qualification. Nothing contained in this section shall be deemed to prohibit selection, rejection or dismissal from employment where the employee, because of his or her AIDS-related medical condition, is unable to perform his or her duties, or cannot perform such duties in a manner without endangering his or her health or safety, or the health and safety of others.

(C)    Burden of Proof. 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:

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

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

(D)    Exceptions.

(1)    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 plan is not a subterfuge to evade the purposes of this chapter; and provided further, that no such system shall provide an excuse for failure to hire any person.

(2)    Nothing in this section 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 Department of the County of Santa Cruz in order to protect the public health. [Ord. 3973 § 1, 1989].

8.50.050 Real property transactions.

(A)    It is unlawful for any person to do any of the following acts as a result of the fact (in whole or in part) that a person has AIDS or any conditions related thereto:

(1)    Interrupt, terminate, or fail or refuse to initiate or conduct any real property transaction, including but not limited to the leasing of a rental unit; to require different terms for such transaction; or falsely represent that an interest in real property is not available for transaction;

(2)    Include in the terms or conditions of a real property transaction any clause, condition or restriction;

(3)    Refuse to lend money, guarantee the loan of money, accept a deed of trust or mortgage, or otherwise refuse to make available funds for the purchase, acquisition, construction, alteration, rehabilitation, repair or maintenance of real property; or impose different conditions on such financing; or refuse to provide title or other insurance relating to the ownership or use of any interest in real property;

(4)    Refuse or restrict facilities, services, repairs or improvements for any tenant or lessee;

(5)    Make, print, publish, advertise, or disseminate in any way, or cause to be made, printed or published, advertised or disseminated in any way, any notice, statement or advertisement with respect to a transaction or proposed transaction in real property, or with respect to financing related to any such transaction, which unlawfully indicates preference, limitation, or discrimination based on AIDS.

(B)    Exceptions.

(1)    Nothing in this section shall be construed to apply to the rental or leasing of any housing unit in which the owner or any member of her or his family occupies the same unit in common with the prospective tenant.

(2)    Nothing in this section 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 Department of the County of Santa Cruz in order to protect the public health. [Ord. 3973 § 1, 1989].

8.50.060 Unlawful business practices.

(A)    It shall be an unlawful business practice for any person to do any of the following acts as a result of the fact (in whole or in part) that a person has AIDS or any condition related thereto:

(1)    Deny any individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any business or business establishment, including but not limited to medical, dental, paramedical, banking, financial, insurance, health care, and convalescent services of any kind whatsoever;

(2)    Make, print, publish, advertise or disseminate in any way any notice, statement or advertisement with respect to any business establishment or public accommodation which indicates an unlawful act under this section.

(B)    Exceptions.

(1)    Nothing in this section 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 tissue, blood or sperm.

(2)    Nothing in this section 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 Department of the County of Santa Cruz in order to protect the public health. [Ord. 3973 § 1, 1989].

8.50.070 Educational institutions.

(A)    It shall be an unlawful practice for any person or educational institution to do any of the following acts as a result of the fact (in whole or in part) that a person has AIDS or any conditions related thereto:

(1)    Deny admission, or impose different terms or conditions on admission;

(2)    Deny any individual the full and equal enjoyment of or impose different terms or conditions upon the availability of any facility owned or operated by or any service or program offered by an educational institution.

(B)    Exceptions.

(1)    It shall not be an unlawful educational practice for a religious or denominational institution to limit admission or give other preference to applicants of the same religion.

(2)    Nothing in this section shall apply to public schools, including public colleges or universities which are exempt from County regulations as a matter of law.

(3)    Nothing in this section 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 Department of the County of Santa Cruz in order to protect the public health. [Ord. 3973 § 1, 1989].

8.50.080 AIDS testing.

No person shall require another to take any test or undergo any medical procedure designed to show or help show that a person has or does not have AIDS or any condition related thereto.

(A)    This section does not apply to an employer who can show that the absence of AIDS is a bona fide occupational qualification.

(B)    Nothing in this section 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 Department of the County of Santa Cruz in order to protect the public health. [Ord. 3973 § 1, 1989].

8.50.090 County facilities.

It shall be unlawful for any person to deny any person the full and equal enjoyment of or to impose different terms and conditions on the availability of any of the following as a result of the fact (in whole or in part) that a person has AIDS or any condition related thereto:

(A)    Use of any County facility or County service;

(B)    Any service, program or facility wholly or partially funded or otherwise supported by the County of Santa Cruz. [Ord. 3973 § 1, 1989].

8.50.100 Association and retaliation.

(A)    Association. It shall be 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 has AIDS or any condition related thereto.

(B)    Retaliation. It shall be unlawful for any person to do any of the acts described in this chapter to retaliate against a person because a person:

(1)    Has acted in support or opposition to any act or practice made unlawful by this chapter;

(2)    Has acted in support of this chapter and its enforcement;

(3)    Has filed a complaint in any court where such complaint is based upon any act or practice made unlawful by this chapter;

(4)    Has testified, assisted or participated in any way in any investigation, proceeding or litigation under this chapter. [Ord. 3973 § 1, 1989].

8.50.110 Civil liability.

Any person who violates any of the provisions of this chapter, or who aids in the violation of any provisions of this chapter is liable for each and every such offense for the actual damages thereof, in such amount as may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage, but in no case less than $1,000, and such costs and attorney’s fees as may be determined by the court. In addition, where a person has intentionally and knowingly violated the provisions of this chapter, punitive damages may, in the discretion of the court, be awarded in an amount determined appropriate by the court to punish the violator and to deter future violations. [Ord. 3973 § 1, 1989].

8.50.120 Enforcement.

(A)    Civil Action. Any person aggrieved by an act prohibited by this chapter may enforce the provisions of this chapter in a civil action.

(B)    Injunction. 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)    Nonexclusive Remedy. Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law. [Ord. 3973 § 1, 1989].

8.50.130 Limitation on actions.

Judicial actions under this chapter must be filed within two years of the alleged discriminatory act. [Ord. 3973 § 1, 1989].

8.50.140 Nonwaiverability.

Any written or oral agreement which purports to waive any provision of this chapter is against public policy and void. [Ord. 3973 § 1, 1989].

8.50.150 Severability.

If any section, subsection, sentence, clause or phrase of the ordinance codified in this chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the ordinance.

The Board of Supervisors hereby declares that it would have passed the ordinance codified in this chapter and each and every section, subsection, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be declared invalid or unconstitutional. [Ord. 3973 § 1, 1989].