Chapter 38
PROHIBITION OF DISCRIMINATION ON THE BASIS OF AIDS
Sections:
5-38.05 Business establishments and public accommodations.
5-38.06 Educational institutions.
5-38.07 City facilities and services.
5-38.08 Association and retaliation.
5-38.12 Limitation on actions.
5-38.15 Application to the City of Watsonville.
5-38.01 Policy and findings.
(a) It is the policy of the City to eliminate discrimination based on the fact that person has AIDS or any medical signs or symptoms related thereto. In adopting this chapter, the City Council does not intend to proscribe any activity the proscription of which would constitute an infringement of the free exercise of religion as guaranteed by the United States and California Constitutions.
(b) The City Council in order to implement this policy enacts this chapter upon the basis of the following findings:
(1) 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 the City’s population.
(2) There is no evidence to indicate that AIDS 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”).
(3) Individuals with AIDS or ARC 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, public accommodations, and associations.
(4) Such discrimination creates discord and deprives the city 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 directly linking the findings to a health-related cause.
(5) Such discrimination may therefore pose a threat to the health, safety, and welfare of the community.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.02 Definitions.
As used in this chapter, the following words or phrases shall have the meanings indicated:
(a) The word “AIDS” shall mean the condition which occurs when an individual is infected with the virus known as lymphadenopathy-associated virus or human R-lymphotropic virus type III or AIDS-associated retrovirus including, but not limited to, acquired immunodeficiency syndrome (“AIDS”), AIDS-related complex, progressive generalized lymphadenopathy, lymphadenopathy syndrome, asymptomatic infection, and AIDS related conditions (“ARC”). It also includes anyone who has any medical condition as a result of having any of the above. It also includes any perception, whether real or imaginary, that a person is suffering from AIDS, any of the conditions described above, or the perception, real or imaginary, that a person is at risk for any of the conditions described in this subsection.
(b) The phrase “business establishment” shall mean any entity, however organized, which furnishes goods or services to the general public, including, but not limited to, medical, dental, paramedical, banking, financial, insurance, health care and convalescent establishments. An otherwise qualifying establishment which has membership requirements is considered to furnish services to the general public if its membership requirements under which a substantial portion of the residents of this City would qualify.
(c) The words “educational institution” shall mean a school or any other place where instruction is systematically imparted.
(d) The word “employer” shall mean any person who compensates another to perform work for him. As used in this chapter the word “employer” includes individuals, firms, corporations, or other organizations or groups of persons however organized.
(e) The word “person” as used in this chapter shall mean any individual, person, firm, corporation, or other organization or group of persons however organized.
(f) The words “public accommodation” shall mean any place open to serve the public, including, but not limited to, inns, hotels, motels, and restaurants.
(g) The phrase “transaction in real property” shall mean any transaction affecting real property including, but not limited to, the sale, lease, rental or financing of real property.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.03 Employment.
(a) Prohibited activity. It shall be 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 of the associated conditions covered by this chapter.
(1) By an employer. To fail or refuse to hire, or to discharge any individual; to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his/her status as an employee;
(2) By an employment agency: To fail or refuse to refer for employment any individual; or otherwise to discriminate against any individual;
(3) By a labor organization: To exclude or expel from its membership or to otherwise discriminate against any individual; or to limit, segregate or classify its membership; or to classify or fail or refuse to refer for employment any individual in any way which would deprive or tend to deprive such individual of employment opportunities, or would limit such employment opportunities, or otherwise adversely affect his/her employment status as an employee or as an applicant for employment;
(4) By an employer, employment agency or labor organization:
(i) To discriminate against any individual in admission to, or employment in any program established to provide apprenticeship or other training or retraining, including any on-the-job training program;
(ii) To 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 such organization, which indicates an unlawful discriminatory act or preference.
(b) Bona fide occupational qualification not prohibited; burden of proof.
(1) Nothing contained in this section shall be deemed to prohibit selection or rejection based upon a bona fide occupational qualification.
(2) In any action brought under Sections 5-38.10 and 5-38.11 of this chapter (Criminal Penalties; Civil Enforcement), 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:
(i) That the discrimination is in fact a necessary result of a bona fide occupational qualification; and
(ii) That there exists no less discriminatory means of satisfying the occupational qualification.
(3) The capacity of an individual to perform his or her duties without endangering his or her health or safety, or the health or safety of others is a bona fide occupational qualification.
(c) Exceptions.
(1) Nothing in this section shall be construed to prohibit an employer from observing 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 Santa Cruz County Health Services Agency in order to protect the public health.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.04 Housing.
(a) Prohibited activity. It shall be 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 of the associated conditions covered by this chapter:
(1) To interrupt, terminate, or fail or refuse to initiate or conduct any transaction in real property, including but not limited to the rental thereof; to require different terms for such transaction; or falsely to represent that an interest in real property is not available for transaction;
(2) To include in the terms or conditions of a transaction real property any clause, condition, or restriction;
(3) To 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, alternation, 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) To refuse or restrict facilities, services, repairs or improvements for any tenant or lessee;
(5) To 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 deemed to permit the rental or occupancy of any dwelling unit or commercial space otherwise prohibited by law.
(2) 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 his or her family occupies the same unit in common with the prospective tenant.
(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 Santa Cruz County Health Services Agency in order to protect the public health.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.05 Business establishments and public accommodations.
(a) Prohibited activity. It shall be an unlawful practice for any person to deny any individual the full and equal enjoyment of the foods, services, facilities, privileges, advantages and accommodations of any business establishment or public accommodation as a result of the fact, in whole or in part, that a person has AIDS or any other associated conditions covered by this chapter.
(b) Advertising. No person shall 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 that a person is doing or will do anything which this section prohibits.
(c) Exceptions.
(1) Nothing in this section shall be construed to apply to blood banks, blood donation facilities, sperm banks, sperm donation facilities, organ donation facilities, surrogate mothers, surrogate mother facilities, or to any other 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 Santa Cruz Health Services Agency in order to protect the public health.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.06 Educational institutions.
(a) Prohibited activity. It shall be an unlawful practice for any person to do any of the following:
(1) To deny admission to an educational institution, or to impose different terms or conditions on admission, as a result of the fact, in whole or in part, that a person has AIDS or any of the associated conditions covered by this chapter.
(2) To deny any individual the full and equal enjoyment of, or to 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 as a result of the fact, in whole or in part, that a person has AIDS or any of the associated conditions covered by this chapter.
(b) Exceptions.
(1) It shall not be an unlawful discriminatory 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 be construed to apply to public schools, including public colleges or universities which are exempt from city ordinances 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 Santa Cruz County Health Services Agency in order to protect the public health.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.07 City facilities and services.
(a) Prohibited activity. It shall be an unlawful practice for any person to deny any person, the full and equal enjoyment, or to impose different terms and conditions on the availability, of any of the following:
(1) Use of any City facility or City service as a result of the fact, in whole or in part, that a person has AIDS or any of the associated conditions covered by this chapter.
(2) Any service, program or facility wholly or partially funded or otherwise supported by the City, as a result of the fact, in whole or in part, that a person has AIDS or any of the associated conditions covered by this chapter.
(b) Exceptions. Nothing in this section shall be construed to prohibit any act which is specifically authorized by the laws of the State of California or any actions taken by or under the direction of the Santa Cruz County Health Services Agency in order to protect the public health.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.08 Association and retaliation.
(a) Association. It shall be unlawful for any person to do any of the acts described in Sections 5-38.03(a), 5-38.04(a), 5-38.05(a), 5-38.06 (a), or 5-38.07(a), as a result of the fact that a person associates with or has associated with anyone who has AIDS or any of the associated conditions covered by this chapter.
(b) Retaliation. It shall be unlawful for any person to do any of the acts described in Sections 5-38.03(a), 5-38.04(a), 5-38.05(a), 5-38.06(a), or 5-38.07(a), or to retaliate against a person because a person:
(1) Has opposed any act or practice made unlawful by this chapter;
(2) Has supported this chapter and its enforcement;
(3) Has filed a complaint under this chapter with the City or any court;
(4) Has testified, assisted or participated in any way in any investigation, proceeding, or litigation under this chapter.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.09 Testing.
(a) No person shall require another to take any test or undergo any medical procedure designed to show or help show that a person has AIDS or any of the associated conditions covered by this chapter.
(b) Subsection (a) of this Section 5-38.09 does not apply to an employer who can show that the absence of AIDS is a bona fide occupational qualification.
(c) 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 Santa Cruz County Health Services Agency in order to protect the public health.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.10 Criminal penalties.
Any person who violates any provision of this chapter shall be declared guilty of a misdemeanor and, upon conviction thereof, shall be punishable as provided in Section 1-2.01 of this Code.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.11 Civil enforcement.
(a) Any aggrieved person may enforce the provisions of this chapter in a civil action.
(b) Any person who violates any provision of this chapter or who aids in such a violation is liable for each violation. Upon a finding of liability, a jury or a court sitting without a jury, may award a maximum of three times the amount of actual damages caused by the violation or violations; however, upon a finding of liability, no damage award shall be less than One Thousand and no/100ths ($1,000.00) Dollars. In addition, upon a finding of liability, the court shall award to the person discriminated against his or her court costs and reasonable attorney fees as determined by the court. Where a person has intentionally and knowingly violated any provision or provisions of this chapter, the court shall have the discretion to award punitive damages in an amount which, in the court’s judgment, will serve to punish the violator and deter future violations.
(c) Any person who commits, or proposes to commit, an act in violation of this chapter may be enjoined therefrom by any court of competent jurisdiction. An action for equitable relief under this subsection may be brought by any aggrieved person, by the District Attorney, or by the City Attorney.
(d) The civil remedies afforded by this section are in addition to, not in lieu of, the criminal penalties provided for in Section 5-38.10.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.12 Limitation on actions.
Civil actions taken pursuant to this chapter must be filed within two (2) years of the last alleged discriminatory act.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.13 Severability.
If any part or provision of this chapter, or the application thereof to any person or circumstance is held invalid, the remainder of the chapter, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this chapter are severable.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.14 Nonwaiverability.
Any written or oral agreement which purports to waive any provision of this chapter is against public policy and void.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)
5-38.15 Application to the City of Watsonville.
All the provisions of this chapter apply to the City of Watsonville.
(§ 1, Ord. 855-90 C-M, eff. December 27, 1990)