II. Offenses Against the Person

Chapter 9.16
DISCRIMINATION BASED ON AIDS OR HIV INFECTIONS

Sections:

9.16.010  Policy.

9.16.020  Prohibited conduct.

9.16.030  Definitions.

9.16.040  Exceptions.

9.16.050  Enforcement.

9.16.060  Limitation of actions.

9.16.070  Waiver not valid.

9.16.080  Application.

9.16.010  Policy.

It is the policy of the city to eliminate discrimination based on the fact that a person has AIDS or a related condition, or HIV infection. In adopting the ordinance codified in this chapter, the city council does not intend to proscribe any activity, the proscription of which would constitute an infringement of the Constitution of the United States or the Constitution of the state of California.

Recognizing that existing federal and state enactments proscribe such discrimination in some, but not all, circumstances, the city council finds that such enactments do not occupy the field of such arbitrary discrimination, but that local regulation is both necessary and proper. This chapter is not intended, and shall not be construed to apply to any person or activity which is regulated by federal or state law, to the extent that application of this chapter would conflict with such law or would unduly interfere with the achievement of federal or state regulatory objectives. It is the intention of the city council that this chapter shall be interpreted to be compatible with federal and state enactments, and in furtherance of the public policies which those enactments express. (Ord. 91-9, 1991).

9.16.020  Prohibited conduct.

A.  Discrimination Prohibited. Discrimination against any person because that person has or is perceived to have AIDS, an HIV condition, or any disease which cannot be casually transmitted, is prohibited.

B.  Retaliation Prohibited. It is unlawful for any person to discriminate against a person who has or who is believed to have:

1.  Opposed any act or practice made unlawful by the ordinance codified in this chapter;

2.  Supported this chapter or its enforcement;

3.  Filed a complaint under this chapter;

4.  Testified, assisted or proceeded in any way in any investigation, proceeding or litigation under this chapter. (Ord. 91-9, 1991).

9.16.030  Definitions.

As used in this chapter, the words or phrases listed below shall have the following meanings:

"AIDS" means acquired immune deficiency syndrome.

"Business entity" means any person, partnership, corporation or other entity, whether public or private, however organized, which provides goods or services to the public. The existence of membership requirements does not exempt any organization if (1) the only requirement for membership is payment of dues, or (2) membership is restricted only by occupation, gender, age, or similar qualification which includes a substantial number of residents of the city, with or without dues.

"Discrimination" includes but is not limited to the following actions affecting a person based upon the knowledge or perception that the person has an HIV disease or infection:

A.  By an employer: limiting, segregating, classifying or taking any adverse action against an otherwise qualified employee or job applicant;

B.  By an employer: not making reasonable accommodations to the limitations of an otherwise qualified applicant or employee so as to deprive any individual of employment opportunities, or otherwise adversely affect his or her status as an employee;

C.  By an employer: to fail or refuse to refer for employment any individual, or otherwise to discriminate against any individual;

D.  By an educational institution: to deny admission, services or use or enjoyment of facilities, or to impose different terms or conditions upon admission, services, or use and enjoyment of services;

E.  By a health care provider or business entity: to exclude from participation in or be denied the benefits of the services, programs or activities of the provider or entity, or to provide such services, programs or activities on less favorable terms;

F.  By any person: doing any of the acts described in this definition of discrimination because a person associates with a person who has or is perceived to have an HIV condition;

G.  In housing: to refuse to rent or lease a rental unit, refuse to negotiate for the rental or lease of a rental unit, evict from a rental unit, or otherwise deny to or withhold a rental unit or services connected therewith from any person, or to rent or lease a rental unit or provide related services on less favorable terms.

"Educational institution" means any corporation, partnership or business entity engaged in training, classes or education of adults or children.

"Employer" means any person regularly employing one or more persons, or any person acting directly or indirectly as the agent of an employer, including an employment agency.

"Health care provider" means any person or facility licensed or certified by the state or any emergency medical transport, prehospital emergency care, dental care and mental health care.

"HIV" means the infectious agent known as human immune virus, human immunodeficiency virus, HTLV-III, LAV or AIDS virus.

"HIV condition" means AIDS, AIDS-related complex, or HIV infection.

"Housing" means use or occupancy of any rental unit, including dwelling units, guest rooms, hotel or motel rooms, suites or dormitories rented or offered for rent for living or dwelling purposes, the land and building appurtenant thereto, and all services, privileges and facilities supplied; in connection with the use or occupancy thereof. This term shall also include mobilehomes whether rent is paid for the mobilehome and the land upon which it is located, or rent is paid for the land alone.

"Otherwise qualified" describes a person with an HIV condition who, with or without reasonable modifications to rules, policies or practices or the provision of auxiliary aids or services, meets the essential eligibility requirements for the receipt of services or participation in programs or activities or for employment or housing.

"Person" includes any individual or legal entity, public or private, located or doing business within city. (Ord. 91-9, 1991).

9.16.040  Exceptions.

A.  Owner-Occupied Dwellings. Nothing in this chapter shall be construed apply to the rental or leasing of any housing unit in which the owner or lessor or any member of his or her family occupies the same dwelling unit as the prospective tenant.

B.  Employee Benefit Systems. Nothing in this chapter is intended to require an employer to violate the conditions of a bona fide employee benefit program. Notwithstanding the foregoing, an employee benefit program which prohibits or is construed to prohibit the hiring of any person who would otherwise be required to be hired under the provisions of this chapter, or which purports to exclude coverage of HIV conditions either by its express terms or by inclusion of conditions such as sexually transmitted diseases or transfusion-related conditions, is to that extent void as against public policy.

C.  In-Home Employers. Nothing in this chapter shall apply to employment of individuals to perform services in the place of residence of the employer.

D.  Bona Fide Occupational Qualifications. Nothing in this chapter shall be deemed to prohibit selection or rejection based upon a bona fide occupational qualification or the lack thereof. However, in any action brought under this chapter, if a party asserts that an otherwise prohibited practice is justified by a bona fide occupational qualification, that party shall have the burden of proving (a) that the discrimination is in fact a necessary result of bona fide occupational qualification; and (b) that there exists no less discriminatory means of satisfying the occupational qualification.

E.  Lawful Insurance Practices. Discrimination as defined in this chapter does not include actions taken by insurance companies which are expressly permitted by state or federal law with respect to applicants or covered persons or groups.

F.  Religious Organizations. Discrimination as defined in this chapter does not include bona fide restrictions by religious organizations limiting employment or services to persons of the same religion. (Ord. 91-9, 1991).

9.16.050  Enforcement.

A.  Any aggrieved person may enforce the provisions of this chapter by means of a civil action for damages, injunction, and such other relief as the court may allow.

B.  Any persons who permit or who propose to commit an act in violation of this chapter may be enjoined therefrom by a court of competent jurisdiction. An action for injunction under this section may be brought by any aggrieved person, by the city attorney, district attorney, or by any person or entity which will fairly and adequately represent the interests of the protected class.

C.  The criminal penalties imposed by the Sonoma Municipal Code shall not apply to violations of this chapter. (Ord. 91-9, 1991).

9.16.060  Limitation of actions.

Any action or complaint under this chapter must be commenced within two years of the date upon which the alleged discriminatory act occurred. This time period shall not begin to run until the aggrieved person discovers or with reasonable diligence should have discovered the discriminatory act. (Ord. 91-9, 1991).

9.16.070  Waiver not valid.

Any written or oral agreement to waive any of the provisions of this chapter is against public policy and therefore void. (Ord. 91-9, 1991).

9.16.080  Application.

The provisions of this chapter shall apply within the incorporated area of the city of Sonoma. (Ord. 91-9, 1991).