SR-8-A (27)
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CA:RMM:jwhaids/hpadv
City Council Meeting 2-9-88
Santa Monica, California
STAFF REPORT
TO:
Mayor and City Council
city Attorney
Ordinance Adding Chapter 9C to Article IV
of the Santa Monica Municipal Code to Prohibit
Discrimination Against Persons with AIDS, A
History of AIDS, or Persons Regarded as Having
or Transmitting AIDS
FROM:
SUBJECT:
BACKGROUND
At its meeting on October 21, 1987, the City Council
directed the City Attorney to draft an ordinance prohibiting
discrimination against persons with Acquired Immune Deficiency
Syndrome (AIDS).
The accompanying ordinance has been prepared
to prohibit discrimination against persons with AIDS, a history
of AIDS, or those regarded as having or transmitting AIDS, in the
areas of employment, housing and other real estate transactions,
business establishments, city facilities and services, and
educational institutions.
To date, the cities of Los Angeles, West Hollywood, San
Francisco and New York have enacted AIDS anti-discrimination
ordinances.
The definition of the term "AIDS" found in Section 495l(d)
of the accompanying ordinance is based upon the definition
utilized by the City of Los Angeles in its AIDS ordinance.
However, it expands on that definition to include
current medica~
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knowledge as to the causes and effects of AIDS and also to
include within the definition of AIDS persons with AIDS Related
Complex (ARC) and those who have tested positive for exposure to
the AIDS virus, whether or not they have any other manifestations
of the illness. These additions have been made because persons
with ARC and those who have tested positive for exposure to AIDS
are frequently subjected to the same discriminatory practices as
those with AIDS.
In addition to including a definition of the term AIDS, the
operative language of the ordinance prohibits discrimination
because an "individual has AIDS, a history of AIDS, or is
regarded as having or transmitting AIDS." This language builds
upon Los Angeles's ordinance, as well as other more general
disability statutes. It is intended to protect not only persons
with AIDS, but also persons with ARC, persons who have tested
positive for exposure to AIDS and those feared capable of
transmitting AIDS whether or not they in fact have AIDS.
Typically this latter group includes household members of AIDS
victims who frequently face the same discrimination as the AIDS
victims. Neither a diagnosis of AIDS nor a currently active AIDS
caused illness is necessary in order to trigger the ordinance's
protections. An act of discrimination caused by an irrational
fear that someone has AIDS or is capable of transmitting it is
sufficient to bring the ordinance into play.
The ordinance contains limited exceptions. It does not
apply to in-home employers and with respect to other employers,
if the absence of AIDS is a bona fide occupational qualification,
it is not an act of discrimination for an employer to refuse to
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hire someone on account of AIDS. sections 4952 (c) and (d) (2) .
In addition, the ordinance does not apply to rentals in certain
specified shared housing arrangements. Section 4953(c).
Since the ordinance is more comprehensive both in the
definition of AIDS and in the class of persons protected than
state or federal law, it is unlikely that it will be preempted by
these laws. Currently, state and federal handicapped
discrimination laws have been administratively interpreted to
include within their scope persons with AIDS. However, as to
state law, the issue has yet to be fully resolved by the Courts
and there remains a question as to what stage of illness such
protection attaches. In any event, state and federal laws may
not include within their scope all persons covered by the
ordinance, such as family members of AIDS diagnosed children, who
face discrimination because they are erroneously feared capable
of transmitting AIDS.
In addition to proscribing acts of discrimination against
persons with AIDS or those perceived to have AIDS, the City of
Los Angeles has taken the affirmative approach of enacting a
comprehensive AIDS education program for City employees and
residents. The experience of Los Angeles' AIDS discrimination
unit has shown that education and counseling of residents and
employees serves as a useful adjunct to the ordinance's mandatory
prOhibitions. Accordingly, it is recommended that City staff
develop an appropriate educational program for the city and
return it to the city Council for its consideration during the
1988-89 Budget process.
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RECOMMENDATION
It is respectfully recommended that:
1. The accompanying ordinance be introduced for first
reading.
2. City staff develop an AIDS education program for
consideration during Fiscal Year 1988-89 Budget process.
PREPARED BY:
Robert M. Myers, city Attorney
Joseph Lawrence, Assistant City Attorney
Jeffrey W. Holtzman, Deputy City Attorney
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