LESBIAN/GAY LAW NOTES ISSN 8755-9021 February 1997 Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@counsel.com Contributing Writers: Otis Damslet, Esq., New York; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Dirk Williams, Esq., Boston; Charles Wertheimer, NY Law School Student. Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: le-gal@interport.net LeGaL Homepage: http://www.interport.net:80/~le-gal Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln (C) 1997 by Lesbian & Gay Law Association of Greater New York $45/yr by subscription; Foreign Rate US$60 Tennessee Supreme Court Denies AIDS-Phobia Claim By Hospital Patient In a unanimous decision announced Jan. 13, the Tennessee Supreme Court granted summary judgment on behalf of a hospital faced with an emotional distress claim by a patient who had been placed in the same room with an HIV+ patient. __Bain v. Wells__, 1997 WL 9056. Reversing the refusal of lower courts to dismiss the case, Justice Drowota reaffirmed for the court its prior holding that actual exposure to HIV is a prerequisite for a negligent infliction of emotional distress claim, and that placing a PWA in a room with another patient (without revealing to the other patient that his roommate is HIV+) is not the sort of "outrageous" conduct necessary for an intentional tort claim. Plaintiff Jerry Bain was admitted as a patient in an alcohol and drug rehabilitation program at University Medical Center in Lebanon, Tennessee. Bain was not informed that the other patient in his two-person room was HIV+. Bain and the other patient shared the same room for eight days, during which time they used the same bathroom. At that time, Bain had "an open cut on his buttock" and once mistakenly used his roommate's disposable razor. When Bain told his roommate about having used the razor, the roommate told Bain that he was HIV+. Alarmed, Bain left the hospital before having completed his rehabilitation program, but later returned and completed the program. Bain claimed that as a result of these incidents he developed severe emotional distress about the possibility of developing AIDS and passing it to his wife. He claimed that the hospital's practice of placing HIV- and HIV+ patients in the same room was so outrageous as to give rise to an intentional infliction of emotional distress claim; failing that, he asserted negligent infliction of emotional distress and loss of consortium. Bain has consistently tested HIV- since these events, over a period now stretching to more than six years. In support of its motion to dismiss Bain's claims, the hospital offered an affidavit and deposition of Dr. William Schaffner, a professor at Vanderbilt University Medical Center and a member of the American Hospital Association's Technical Panel on managing HIV infection in hospitals. Schaffner testified that AHA standards prescribe isolating HIV+ patients under only three circumstances (patient has other airborne transmissible infections; patient is violent; or patient is so ill with AIDS as to be unable to control body fluids), none of which applied to this case. (Bain's HIV+ roommate was in the hospital for the same reason as Bains: participation in the drug rehabilitation program.) Schaffner also opined that under the circumstances Bain's fear of contracting AIDS was unreasonable, since the recognized modes of transmission did not include sharing a toilet seat or a razor, and since Bains had tested negative repeatedly well past the time when more than 99 percent of infected persons would have tested positive. In opposing the motion, Bain's own affidavit asserted that he was not warned his roommate was HIV+ and was thus unable to watch out for his own safety. Bain also asserted that he normally cuts himself and bleeds when shaving, and that the experience caused him great emotional distress. The trial court refused to dismiss the case, and the court of appeals, affirming such refusal, opined that defendants had failed to prove that their conduct was not "wrongful" or that Bains had not been exposed to HIV through the shared toilet and razor incidents. After reviewing the standard for intentional infliction of emotional distress, Justice Drowota asserted that it had clearly not been met in this case. "In this case, it is clear that neither the defendants' patient housing policy nor their failure to inform Bains about his roommate's HIV positive status constitutes outrageous conduct," wrote Drowota, pointing out that the housing policy was in compliance with AHA recommendations, which both allow housing HIV- and HIV+ patients together and provide for protection of confidentiality of HIV information. As a matter of law, compliance with industry standards may not be characterized as "outrageous." Turning to the negligence claim, Drowota agreed with the defendants that __Carroll v. Sisters of Saint Francis__, 868 S.W.2d 585 (Tenn. 1993), requires a plaintiff to allege actual exposure to HIV before an emotional distress claim may be brought on a negligence theory. Bain sought to rely on a more recent decision, __Camper v. Minor__, 915 S.W.2d 437 (Tenn. 1996), in which the court had abandoned the rule that an emotional distress claimant must allege an actual physical injury, but Drowota pointed out that in __Camper__ the court had insisted that an emotional distress plaintiff must still "present material evidence as to each of the five elements of negligence" and that this would logically include, in an HIV case, "proof of actual exposure to HIV." "Our decision in Carroll," wrote Drowota, "therefore, also stands for the proposition that in the absence of proof of an actual exposure to HIV, public policy imposes no legal duty to protect against the fear of contracting AIDS. Reviewing the facts of this case in the light most favorable to the plaintiff, it is clear that there are no disputed facts as to the issue of actual exposure to HIV. The only medical expert proof in the record unequivocally states that Bain was not actually exposed to HIV during his hospitalization. Indeed, Dr. Schaffner said that a person cannot contract the AIDS virus by sharing a toilet seat or a disposable razor with a person with HIV because HIV is transmitted only through fluid to fluid contact or exposure." Since Bain had not offered any contradictory medical evidence in support of his motion, and admitted that he had tested negative for HIV over a period of several years since the incidents at issue, "he has failed to establish proximate cause, an essential element of a claim for negligent infliction of emotional distress. . . The hospital owes no duty to protect against the irrational fear of contracting AIDS." Consequently, the court reversed the decision of the court of appeals and granted summary judgment to the defendants, awarding costs of the appeal against the plaintiffs. A.S.L. LESBIAN/GAY LEGAL NEWS Marriage Pot Boils In Hawaii The marriage pot continues to boil in Hawaii in reaction to December's decision in __Baehr v. Miike__, 1996 WL 694235, holding that the state had failed to prove a compelling interest in denying access to marriage to same-sex couples and ordering the state to commence issuing marriage licenses. On Jan. 8, Deputy Attorney General Rick Eichor filed an appeal to the Hawaii Supreme Court, Circuit Judge Kevin Chang having stayed his decision pending the appeal. Eichor's appeal seeks a stay of Judge Chang's opinion until the state can decide on amending its constitution to overturn the supreme court's prior ruling in the case. In the meantime, the 1997 legislative session has begun with the swift introduction of two pertinent bills in the Hawaii House of Representatives, __both__ of which were approved by the Judiciary Committee after brief hearings, and one of which received immediate endorsement from the full House. H.B. 117 proposes a constitutional amendment that would overturn the __Baehr v. Lewin__ decision of 1993 by adding a proviso that a violation of the constitution's ban on sex discrimination cannot be based on the failure of the state to allow same-sex couples to marry. (Thus, the amendment would not place a direct ban on same- sex marriage into the state constitution, but rather would remove from the state's courts the ability to find a constitutional violation based on the state's existing marriage laws.) This measure was brought up in the House swiftly after Judiciary Committee approval, and was passed 44-7 on Jan. 23. H.B. 118, "A Bill for an Act Relating to Unmarried Couples," would create a new status of "reciprocal beneficiaries" for couples who are unable to marry as a matter of law. Couples would become reciprocal beneficiaries by filing a form with the state health department declaring under oath that they meet the statutory requirements: each at least 18 years old, neither married to anybody else or participating in a reciprocal beneficiary relationship with anybody else; legally prohibited from marrying; freely consenting to the relationship. Reciprocal beneficiaries would have the following rights under Hawaii law: (1) the same rights as a spouse with respect to hospital visitation and health care decision making; (2) the same rights as a spouse with respect to creating ownership interests in property jointly acquired; (3) many of the same rights as a spouse with respect to inheritance, although elective share rights would be prorated based on the length of the reciprocal beneficiary relationship; (4) the same right as a spouse to sue for wrongful death. The bill would not go into effect until and unless the constitutional amendment proposed in H.B. 117 is enacted, since same-sex marriage will probably be available in Hawaii if the constitutional amendment is not enacted. Thus, the bill is not really being put forward as a mechanism to satisfy the Hawaii Supreme Court (as was the rationale for last year's much more comprehensive domestic partnership bill that passed in the state Senate but never came to a vote in the House). It was reported that a more comprehensive domestic partnership bill might be introduced in the House on Jan. 24, the last day for filing bills for this legislative session. The fate of these bills in the Senate, where similar measures were being introduced, was less certain than in the House, as there are several supporters of same-sex marriage in the Senate in key committee positions who are adamantly opposed to the constitutional amendment and supportive of the full domestic partnership bill passed last year. A.S.L. Georgia Court Against Strikes Down Domestic Partnership Benefits for Atlanta In 1995, the Georgia Supreme Court ruled in __City of Atlanta v. McKinney__, 454 S.E.2d 517, that the city of Atlanta's attempt to enact domestic partnership benefits eligibility for the unmarried partners of its employees exceeded the legislative authority of the city. The ruling was premised on an interpretation of a state law which establishes employee benefits rights for public employees in the state of Georgia. According to the state Supreme Court, the city could not extend benefits to all partners on the presumption that they were "dependents" of their employee-partners. Determined to enact such benefits, the city took a second crack at an ordinance, this time carefully limiting eligibility to those domestic partners who could show that they are dependent upon their employee-partners by defining an eligible partner as "one who relies on another for financial support." In a new decision in __Morgan v. City of Atlanta__, No. E-52854 (Ga. Superior Ct., Fulton County, Dec. 31, 1996), Judge Isaac Jenrette granted summary judgment to the plaintiff-taxpayer who was contesting the new ordinance, finding that the new language did not save the measure from the same defect identified in the earlier decision by the state supreme court. In a brief, unpublished opinion noticeably short on legal analysis, Jenrette wrote: "The Court concludes that the City is still exceeding its authority by now attempting to incorporate a `family relationship' it has created, domestic partners, into the definition of a dependent. By incorporating domestic partners into the City's definition of dependents, the City's definition of dependents is now inconsistent with the above-noted state law. `Since it is beyond the city's authority to define dependents inconsistent with state law' this Court holds that the ordinance is unconstitutional as ultra vires under the home rule act and the Georgia Constitution." The city is appealing this decision. Robin Shahar and Kendric Smith of the City Attorney's office are defending the ordinance, with amicus assistance from the ACLU of Georgia. A.S.L. Marriage and Domestic Partnership Notes Washington State Representative Ed Murray introduced H.B. 1203 on Jan. 17. The bill would amend the existing state marriage laws to allow same-sex couples to marry, and was introduced at the request of retiring Governor Mike Lowry. The bill changes all references from "husband and wife" to "spouses" and states: "Persons of the same gender have the right to enter into a civil marriage contract in the same manner and with the same force and effect as persons of the opposite gender." A similar bill will be introduced in the state Senate by Senator Pat Thibaudeau, who represents the same district as Murray. A bill to ban same-sex marriages will be introduced by Rep. Bill Thompson, whose draft was expected to mirror the federal Defense of Marriage Act in its provisions. __Seattle Post-Intelligencer__, Jan. 10; supplemented by later postings to the Marriage Listserve on the Internet. The Arkansas legislature's Senate Judiciary Committee rejected an attempt to add an amendment protecting gay people from employment discrimination to a pending measure banning recognition of same-sex marriages. Sen. Mike Everett's amendment failed for lack of a second during a Jan. 22 Committee meeting. The Committee then approved the anti-gay marriage bill. A similar version of the bill was approved by the Arkansas House 92-2 on the same day. Construing the Defense of Marriage Act, which provides that only opposite-sex marriages will be recognized under federal law, the Administrative Office of the U.S. Courts issued a memorandum on Dec. 17 informing court administrators that same-sex marriages cannot be recognized for benefit entitlements under the following statutes: Federal Employee Retirement System, Civil Service Retirement System, Federal Employees Health Benefits Program, Federal Employees Group Life Insurance, and the Family and Medical Leave Act. However, the memorandum pointed out that the statutes governing federal employee sick leave and bereavement leave and the federal leave sharing program, which define "family member" to include "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship," are apparently not affected by DOMA. The memorandum was issued by Charlotte G. Peddicord, Chief of the Human Resources Division. The __Washington Times__ reported Jan. 13 that bills banning same- sex marriages were expected to be on the legislative agenda this year in 18 states. A new survey of its members by the Society for Human Resource Management found that seven percent of organizations employing the Society's members offer domestic partnership benefits to employees. __Memphis Commercial Appeal__, Jan. 19. A gay community newspaper in Houston, Texas, reports that Vinson & Elkins, the city's largest law firm (and reportedly the fifth largest law firm in the nation) has announced adoption of a domestic partnership benefits policy for its employees, effective Jan. 1. This will bring V&E into line with the major firms in New York, Washington, Chicago, San Francisco and Los Angeles with which it competes for new law graduates at the nation's leading law schools. A committee of the San Francisco Board of Supervisors has voted to make renewal of a major contract with United Airlines contingent on United agreeing to adopt a domestic partnership benefits policy for its employees. The city enacted an ordinance last year barring contracts with employers who do not provide such benefits, but the measure was not expected to take effect until the spring. However, the United contract was up for a vote this month, and the committee decided to take a stand in support of its new policy. United has 7500 employees at San Francisco International Airport. __San Francisco Chronicle__, Jan. 15. A.S.L. ILGO Loses Another Round in St. Patrick's Day Annual Battle In what is becoming an annual ritual, a first harbinger of spring, the Irish Gay and Lesbian Organization (ILGO) sued the City of New York over the City's denial of a permit to hold a parade down Fifth Avenue roughly 90 minutes before the annual St. Patrick's Day parade, which is sponsored by the Ancient Order of Hibernians. In __Irish Gay and Lesbian Organization v. Giuliani__, 1996 WL 735511 (S.D.N.Y., Dec. 20). U.S. District Judge Koetl granted the city's motion for judgment on the pleadings. The City has the authority to regulate parade permits under sec. 10-110 of the NYC Administrative Code, and the Police Department's Administrative Guide Procedure sec. 321-14, which interprets that provision. The City's position is that it cannot grant two permits for the same route on the same day at virtually the same time because that would create unacceptable levels of traffic congestion and impose unacceptable burdens on police, sanitation and emergency medical services. ILGO brought the instant suit challenging the facial constitutionality of the City's parade permitting scheme and, in particular, its application to ILGO. ILGO argues that the ordinance delegates unfettered discretion to city officials and is unconstitutionally broad. The City counters that these were issues that were or could have been raised in ILGO's 1995 action, and were thus barred by collateral estoppel and res judicata. The court agreed with the city. The issues raised in this suit were, indeed, raised in the 1995 action, or could have been, and the minute factual distinctions raised by ILGO (e.g., that the parade would be on a Saturday, not a week day) did not warrant relitigating the issues involved and there were no public policy reasons for relitigating the issues. Claims for compensatory damages on behalf of ILGO's members were rejected because the group did not have standing. S.K. California Appeals Court Rules In Bizarre Gay Obsession Case Soap Opera Alert! On Dec. 23, the California Court of Appeal, 2nd District, authorized publication of a partial opinion in the case of __People v. Landis__, 1996 WL 733135, a tale of sexual obsession and tragedy. Although omitting publication of several sections of the court's opinion, what was published is sufficient to provide a story that seems destined for B movie production, involving the sexual obsession of Kelly Jon Landis for Karl Rosenquist, a lecturer at UCLA. Landis and Rosenquist met in May 1993, when Landis was a USC student and Rosenquist was a doctoral candidate at UCLA. The men had a friendly dating relationship for several months, during which they had sex and stayed over at each other's apartments several times. (The amount of sex they had was vigorously contested at trial.) Landis later claimed that their sex included detailed role playing involving humiliation, and sought to introduce a videotape at trial showing Rosenquist engaging in such activity with another man. Rosenquist began to doubt their continuing relationship based on various incidents during which Landis acted strangely. (At trial, the prosecution introduced witnesses who described Landis as "odd," "creepy," or "weird.") There followed beginning in the fall of 1993 and continuing to May 1995 a bizarre series of events, in which Landis, rejected by Rosenquist, acted out a chain of obsessive behavior, breaking into Rosenquist's apartment and car, telephoning incessantly, stealing items of Rosenquist's personal property, and even assaulting him on various occasions. At one point, Landis's psychiatrist approached Rosenquist to warn him that Landis might attempt to kidnap him and had studied surveillance manuals for various purposes, including a possible attempt to tap Rosenquist's phone. These events culminated in Landis's arrest on May 2, 1995, after a May 1 assault against Rosenquist. At a jury trial, Landis was convicted of residential burglary, vehicular burglary, and receiving stolen property, but the jury deadlocked on two counts of "stalking," as to which the court declared a mistrial. Landis was sentenced to six years in prison on the other charges. The appeal raised numerous technical challenges to the court's charge to the jury, some of which were successful, necessitating a partial remand for reconsideration of sentencing, but the court rejected Landis's claims of ineffective assistance of counsel by his court-appointed lawyer, and prosecutorial misconduct, and also rejected Landis's argument that the jury verdict was not supported by the evidence. Landis's own theory of the case was that he and Rosenquist were lovers, and that Rosenquist's purported "rejection" of him was all part of the elaborate role-playing in their relationship. A.S.L. Transsexual Can Claim Sex Discrimination Under NY Law A federal district court has allowed a transsexual plaintiff to proceed with a claim of sex discrimination under New York State and City laws. __Rentos v. Oce-Office Systems__, 1996 WL 737215 (S.D.N.Y. Dec. 24). Plaintiff Corinne M. Rentos began working at Oce in 1993, while in the process of changing her sex from male to female. Oce became aware of the sex change in 1994, when Rentos requested payments for related medical expenses through the company's health plan. Almost immediately, Rentos's manager attempted to place her on probation, pending termination. Rentos also began to suffer harassment, job interference, and negative performance evaluations. Oce delayed payment of Rentos's medical claims, and terminated her in 1995. Rentos sued in N.Y. Supreme Court, and Oce removed to federal court on the basis of diversity. Oce moved to strike the complaint, arguing that it failed "to identify a protected class to which Plaintiff allegedly belongs." Although discrimination laws speak in terms of prohibited classifications, such as sex, judicial precedents have re-formulated the elements of a discrimination claim to require a plaintiff to assert membership in a "protected class," such as males or females. Rentos did not fit neatly into either class. Judge Preska observed that every federal court that has considered the question has rejected the application of Title VII to transsexuals. See, e.g., __Ulane v. Eastern Airlines, Inc.__, 742 F.2d 1081 (7th Cir. 1984). Preska also observed, however, that the only case addressing the issue under the NYS and NYC anti-discrimination laws had extended protection to transsexuals. __Maffei v. Kolaeton Industries, Inc.__, 164 Misc.2d 547, 626 N.Y.S.2d 391 (Sup.Ct., N.Y. Co. 1995). Rentos's amended complaint quoted directly from the __Maffei__ decision, and Judge Preska reasoned that it identified her as a member of what at least one New York court had identified as a protected class. As a result, the judge denied the motion to strike, allowing Rentos to proceed with her claim. O.R.D. Ohio Appeals Court Revives Defamation Claim Against Television New Anchor by Transsexual Litigant In a unanimous per curiam decision, the Ohio Court of Appeals, 1st District, has revived a defamation claim by Susan Pollock against Norma Rashid, news anchor for television station WLWT, while at the same time sustaining dismissal of claims of invasion of privacy and intentional infliction of emotional distress. The claims arose out of a televised report about a lawsuit filed by Susan Pollock, a convicted felon, against the warden of the prison in which she had been confined. __Pollock v. Rashid__, 1996 WL 741977 (Dec. 31). In the mid-1970s, Mark Pollock, a transsexual, had surgery and hormone treatment to become a woman, legally taking the name of Susan Pollock. After Susan was convicted of a felony, prison officials sent her to a male institution where she suffered harassment, rape and physical assaults and was denied hormone therapy to maintain her feminine appearance. She filed suit against the warden seeking transfer to a female prison and resumption of her hormone therapy. WLWT did a news report about her case, allegedly based solely on interviews with the warden and other prison officials, in which Susan was referred to throughout as "Mark." The only depiction of Susan during the report was an old photograph showing a bearded man that had been obtained from the prison warden, and the gist of the broadcast interview with the warden concerned "frivolous" suits by prisoners wasting taxpayer money. Susan sued WLWT news anchor Norma Rashid, and two former employees of the station who worked on the report, after her written demands for retraction and a balanced report on her case were ignored, claiming defamation, invasion of privacy and intentional infliction of emotional distress. Because Susan was never able to secure service of process on the two former employees, Rashid was the sole defendant, and moved to dismiss the case. The trial court granted the motion without making findings of fact or issuing an opinion. On this appeal, the court held that the trial judge erred in dismissing the defamation claim, but had correctly dismissed the other claims. By filing her lawsuit, Susan had made public her identity as a transsexual, and thus could not assert an invasion of privacy claim for a news report containing that information. The court also found that the television station's conduct was not sufficiently outrageous to meet the requirements for a claim of intentional infliction of emotional distress. However, the court found that based on the allegations of her complaint as to the one- sided nature of the report and the way it depicted Pollock and held her up to ridicule, it was inappropriate for the trial court to have concluded that she could not possibly prove a defamation claim, and remanded for trial. A.S.L. Another Loss on Military Policy U.S. District Judge Earl E. O'Connor granted the government's motion for summary judgment in __Walmer v. U.S. Dept. of Defense__, 1996 WL 717330 (D.Kan. Nov. 25). The motion, which was unopposed, finally disposed of Joyce L. Walmer's claim that her discharge from the Army for "homosexual acts" (not specified in the court's opinion) violated both the equal protection clause and the bill of attainder clause (U.S.Const., art. I, sec. 9). The case has been pending for several years, and already went to the 10th Circuit in 1995 on an appeal of the district court's refusal to enjoin Walmer's discharge pending a ruling on the merits. The discharge was under the "old policy" in effect prior to the 1993 action by President Clinton and Congress modifying and codifying the policy against service by lesbians, gay men and bisexuals. Since Walmer failed to file responsive papers, the court treated the motion as unopposed and, reciting and summarizing the legal reasoning from its prior rulings against preliminary relief, held that neither cited constitutional provision was violated. (As to the bill of attainder claim, the court rested its ruling on the proposition that the "old policy," embodied solely in military regulations, was not a legislative act, which is theoretically required to find a bill of attainder. Under this reasoning, the "new policy," which is contained in a congressional enactment, could be attacked under the attainder clause.) A.S.L. Law and Society Notes The U.S. Supreme Court has refused to review a lower court decision upholding an injunction against the Rev. Fred Phelps's church, which had been organizing picketing of another church in furtherance of Phelps's abrasively anti-gay agenda. __Westboro Baptist Church, Inc., v. St. David's Episcopal Church__, 921 P.2d 821 (Kans.App. 1996), cert. denied, 65 USLW 3322 (U.S.S.Ct., Jan. 21). The Kansas courts had rejected Phelps's argument that his activity was shielded from judicial regulation by the 1st Amendment of the Constitution. The __National Law Journal__ reported Dec. 30 that a jury in Detroit awarded more than $14 million to the estate of a gay man who died following a delay in treatment by St. John's Hospital, where a resident referred to the deceased, Gay Romic, as a "scumbag" because of his sexual orientation. The jury award was made on Nov. 27. The city of Cleveland, Ohio, has enacted an ordinance that applies criminal penalties for employment discrimination, including discrimination based on sexual orientation. According to Cleveland Mayor Michael White, this is the first time that any jurisdiction has enacted criminal penalties for unlawful employment discrimination. __Washington Blade__, Jan. 17. Atlanta Mayor Bill Campbell signed an administrative order on Dec. 20, 1996, requiring all city contractors whose contracts exceed $1,000 to adopt employment policies banning sexual orientation discrimination. The order affects contracts signed by the city after the order's effective date of Dec. 20. __Washington Blade__, Jan. 10. The State of Colorado and the plaintiffs in __Romer v. Evans__ have reached a settlement of $950,000 for the plaintiffs' attorney fees and costs. The original claim by plaintiffs was for $1.4 million. In addition to this out-of-pocket expense, the state's direct costs of defending anti-gay Amendment 2 are estimated at about $400,000. Attorneys who will share in the payment are: Jean E. Dubofsky (who argued the case in the Supreme Court) and Jeanne Winer of Boulder; the law firm of Holland and Hart in Denver; the Denver City Attorney's Office; Wilson Sonsini of Palo Alto, California; the ACLU in Denver and New York; and Lambda Legal Defense and Education Fund, New York. __Rocky Mountain News__, Jan. 3. The __Lexington Herald-Leader__ (Jan. 22) reported that a Fayette County Circuit Court jury has awarded $75,500 in damages to Kenneth Gene Hillard, who accused his former male supervisor of sexual harassment based on allegations of groping and propositioning Hillard to perform oral sex. The supervisor, who is no longer employed by Consolidated Freightways Corp. of Delaware, Hillard's employer, had denied harassing Hillard but admitted to sexual horseplay as described by Hillard's testimony, insisting that it was common in the workplace. The jury found the employer 90 percent responsible for $75,000 in compensatory damages, and specifically assessed $500 in punitive damages against the former supervisor. The __Boston Globe__ (Jan. 3) reports that a Norfolk, Massachusetts, Superior Court jury has awarded $1.2 million in damages to John B. Walsh, who claims he was discharged by Carney Hospital, a Catholic facility, because the managers there believe that Walsh is gay. Walsh has not identified his sexual orientation publicly. Massachusetts passed a law banning sexual orientation discrimination in 1989, confiding enforcement authority in a state commission. This is reportedly the first jury verdict to award damages for alleged sexual orientation discrimination. The attorney for the hospital argued that the verdict represented anti- Catholic prejudice by the jury, and filed a motion to set aside the verdict with Judge Judith Cowin. The hospital will appeal if the verdict is not overturned. The further appeal of an adverse lesbian custody decision in __Ward v. Ward__, 1996 W 491692 (Fla. Dist. Ct. App., 1st Dist. Aug. 20), may have been mooted on Jan. 22 when Mary Ward, the appellant, died from a sudden heart attack. Her case stirred national press controversy after a trial judge changed custody of her daughter to Mrs. Ward's ex-husband, who had previously served a prison term for the murder of his previous wife. The judge had opined that the daughter should have the opportunity not to be raised in a "lesbian environment," and the court of appeals had refused to reverse that decision. However, one issue remaining in the case was the potential applicability of a state statute concerning eligibility for child custody of parents convicted of serious domestic violence offenses, so it is possible the Florida Supreme Court will still be interested in ruling on the appeal. __New York Times__, Jan. 23. Several law schools have reportedly been contacted by the Defense Department about military recruitment pursuant to the Solomon Amendment that was attached to federal appropriations for this year. The latest version of this Amendment purports to cut off all direct federal financial assistance to any school that bars military recruiters, but there is some difference of opinion as to whether this also applies to scholarship assistance. U.S. District Judge Shira Scheindlin ruled Jan. 22 that a recently enacted federal statute banning the sale of sexually-explicit materials on military bases violates the 1st Amendment and requirements of due process and equal protection under the 5th Amendment. __General Media Communications, Inc. v. Perry__, N.Y.L.J., Jan. 23, p.1. Scheindlin concluded that only sale of obscene material can be banned; thus, Congress's attempt to ban the sale of "indecent" material chills protected speech and imposes a vague standard. A.S.L. International Notes Gay rights activists in Argentina report success in getting the city council in Rosario, the nation's second largest city, to pass a proposal on Dec. 20 which bans discrimination on the basis of race, ethnic affiliation, gender, sexual orientation, age, religion, ideology, nationality, physical appearance, psychological, social or economic condition or any other circumstance. "The City promotes the removal of any and every type of obstacles that, actually restricting equality and freedom, impede a person's full development and her/his effective participation in the social, political or economical community life," reads a translation of the proposal posted to the Internet by a member of the activist group, who reports that the measure was similar to one passed in Buenos Aires a few months ago. An appeals committee of the District Court in Tel-Aviv, Israel, ruled on Jan. 8 that Adir Steiner, the domestic partner of the late Colonel Doron Meisel, has the right to be recognized as a surviving partner under the military pension law. In a brief opinion, Judge S. Aloni found that the refusal of the Israel Defense Forces (IDF) to recognize Mr. Steiner (although opposite-sex unmarried partners are recognized) constituted sex discrimination. Judge Aloni referred to the Israel Supreme Court's decision in __El-Al v. Danilowitz__, in which the court held that employers must give gay couples the same spousal benefits they give heterosexual couples. This decision is seen as an important expansion of the __Danilowitz__ decision, since that case was based on employment discrimination statutes while this one construes the military pension law, a separate statute. The IDF has 30 days to file an appeal. Our thanks for details on this case from Aeyal Gross and Dori Spivak of the Tel-Aviv University Faculty of Law. In the opinion of Judge Luca Pistorelli, it is not defamatory to call somebody a homosexual. According to a Reuters story cited in the __Washington Blade__ (Jan. 17), Pistorelli dismissed a defamation suit brought by the members of a women's soccer team against their coach, who had told a newspaper that he was disbanding the team because its members were more interested in having sex with each other than in playing soccer. Wrote Pistorelli, "The idea that attributing homosexuality to someone is an insult to the honor, in the sense of an assault on the dignity of their person, must be rejected decisively. . . Calling someone homosexual cannot constitute in itself a diminishment of the person." A.S.L. Professional Notes and Announcements The Honorable Deborah A. Batts, a LeGaL member who is a judge of the U.S. District Court, Southern District of New York, will deliver the Noreen E. McNamara Memorial Lecture at Fordham University Law School on Feb. 4. A portrait of Judge Batts, a former professor at Fordham, will be unveiled on the occasion of the lecture, which will take place at 5:30 p.m. __The American Lawyer__ has singled out Beatrice Dohrn, Legal Director of Lambda Legal Defense Fund, as one of 45 "young lawyers outside the private sector whose vision and commitment are changing lives," and called Dohrn a "key agenda-setter for gay rights litigation, a leader among a small group of lawyers who determine which issues to pursue and how to frame cases for maximum impact." __Washington Blade__, Jan. 17. The Washburn Law Students Gay & Lesbian Network and the National Lesbian & Gay Law Association co-sponsored a conference titled "Constructing Change: Seeking Our Human Rights" at the Washburn Law School in Topeka, Kansas, on January 31. Speakers included Nancy Maxwell, Patricia Cain, Matt Coles, Roger Leishman, James Wilets, Mark Wojcik, Suzanne Levitt, James Schwartz, and Deb Taylor. The 6th Annual Transgender Law and Employment Policy Conference will be held in Houston, Texas, on July 11-12, 1997. Principal plenary speakers will be the Honorable Reginald E. Jones, Chair of the U.S. Equal Employment Opportunity Commission, and Kerry Lobel, Executive Director of the National Gay and Lesbian Task Force. For full details, visit the web page of the International Conference on Transgender Law and Employment Policy at the following address: www.abmall.com/ictlep, or e-mail an inquiry to ictlep@aol.com. Contact the same for information about the newly published 5th Annual Book on Transgender Issues, which was released in January 1997. AIDS AND RELATED LEGAL NEWS BRIEFS HIV+ Surgeon in France Appears to Have Infected Patient The French Health Ministry has announced that Dr. Patrick Cohen, a French orthopedic surgeon who discovered he was HIV+ after being tested in March 1994, seems to have infected a patient while performing surgery in 1992 or 1993. __New York Times__, Jan. 17. Dr. Cohen suspects that he was infected through exposure to a patient's blood while performing surgery in 1983. When his HIV test came back positive in 1994 and informed the Health Ministry, the agency attempted to contact approximately 5,000 people on whom the doctor had operated since 1983. Of the 986 who responded, only one tested positive. Dr. Cohen believes that he cut himself while performing hip replacement surgery on this patient. Based on a comparison of the virus retrieved from Dr. Cohen and from the patient, Dr. Luc Montagnier, director of the National Center of Virology at the Pasteur Institute and an early pioneer of AIDS research credited with having first isolated and identified HIV in the blood of persons with AIDS stated that it is "highly probable" that Dr. Cohen transmitted the virus to the patient. What this portends for the ability of HIV-infected surgeons to continue their careers is uncertain. Out of the thousands of surgeries performed by HIV+ surgeons since the early 1980's, this is to date the only documented case of transmission. (The only other case of transmission from a health care worker while rendering treatment involved an American dentist.) Up to now, the failure to document any case has helped to provide a strong argument to those who contend that HIV+ surgeons should be allowed to continue their practices without revealing their HIV status to patients. However, it was always expected that at some time a documented case of transmission would emerge. Does this change the calculus of risk sufficiently to justify the view expressed by Dr. Montagnier in his report on this incident -- that "if a surgeon is HIV positive, he should abstain from performing invasive surgery, such as obstetric, gynecological, orthopedic or stomach interventions" (as summarized in the __N.Y. Times__ report on this incident)? On Jan. 22, the __Times__ reported that the association governing French doctors had called on all HIV+ surgeons to refrain from further surgical practice, although it did not call for mandatory testing of all surgeons. So far, every U.S. federal court to consider the issue has concluded that HIV+ surgeons can be barred by their employers from continuing to practice surgery, notwithstanding the provisions of the Americans With Disabilities Act and section 504 of the Rehabilitation Act, which ban unjustified employment discrimination on the basis of disabilities. This new incident report will likely be seen by the courts as increasing the justification for such rulings, as it indicates that the theoretical possibility of surgeon to patient transmission is no longer merely theoretical. (However, since it is the only documented cases among thousands of possible exposures, it does not change the calculus of risk from what it was before this case was uncovered.) A.S.L. Illinois High Court Opts For Professional Standard on Blood Bank Liability In a Dec. 19 decision, the Supreme Court of Illinois defined the standard of care under the Illinois Blood and Organ Transaction Liability Act against which the conduct of a nonprofit blood bank charged with negligence in collecting whole blood contaminated with the human immunodeficiency virus (HIV) must be measured. Marietta Advincula, as the special administrator of the estate of her husband, Ronaldo Advincula, brought a wrongful death action against United Blood Services after Advincula's husband died of AIDS, which he contracted from a blood transfusion during open heart surgery in 1994. The trial court charged the jury that the Blood and Organ Transaction Liability Act requires that the blood bank's actions be judged by the normal standard of due care. At issue was whether a Hepatitis B test available in 1994, that would have eliminated some HIV-infected blood, should have been employed by United Blood Services in testing the blood for AIDS even though most blood banks did not employ this test at the time. Based on the jury charge, the jury returned a verdict in favor of plaintiff and awarded damages of $2.14 million. The intermediate appellate court affirmed. The Supreme Court of Illinois reversed. __Advincula v. United Blood Services__, 1996 WL 732045. The decision turns on the interpretation of the Blood and Organ Transaction Liability Act. The Act states that "[e]very person, firm or corporation involved in rendition of any of the services described in Section 2 warrants to the person, firm or corporation receiving the service and to the ultimate recipient that he has exercised due care and followed professional standards of care in proving the service according to the current state of medical arts." Ill. Rev. Stat. 1983, ch. 111, par. 5103. The lower courts had reconciled the conflict between the "due care test, which in Illinois is the reasonable person test and the professional standard of care, in favor of due care. The supreme court reversed, finding that the Act represents "no more than a classic statement of the general duty to which every professional is answerable, to exercise due care, and the particularized measure of his conduct, by professional standards of care." The professional standards test requires blood banks to be judged by the standard of what other blood banks are doing rather than the reasonable person test. Since the wrong test was employed, the court reversed and remanded the case for a new trial. T.V.L. Montana Supreme Court Order Reconsideration of Workers Compensation Decision Stemming from AIDS Phobia Claim The Montana Supreme Court has ordered the state's Workers Compensation Court to reconsider its decision in the case of Michael S. Blythe, a respiratory therapy technician who had been receiving benefits for mental injuries connected with exposure to HIV. __EBI/Orion Group v. Blythe__, 1997 WL 10410 (Jan. 7). Blythe suffered a needlestick injury with a needle that had been used to draw blood from an AIDS patient on Jan. 29, 1989. He has never tested positive for HIV, but claimed that he suffered disabling psychosis as a result of the incident and filed a workers compensation claim. The insurer, EBI/Orion, accepted the claim under a "reservation of rights" and began paying benefits. In 1995, EBI/Orion petitioned the Workers Compensation Court for permission to discontinue payments, contending that at this point any mental injury Blythe may have suffered should have ended as a result of his failure to develop HIV-infection, and that he was now just malingering. The Workers Compensation Court agreed with EBI/Orion, basing its opinion on testimony from two clinical psychologists, one of whom examined Blythe pursuant to court order and the other of whom, a national authority on "malingering," testified based on his observation of Blythe's courtroom testimony and a review of his medical records. Blythe's own physician testified that his psychological problems were real and continuing. On appeal, Blythe contended that the Court did not have authority to order an independent medical examination, and even if it did, that the examination that took place was invalid because the clinical psychologist who performed the evaluation was not a medical doctor. The court agreed with Blythe on this point; the statute in Montana requires that medical examinations be performed by medical doctors, and the court opined that it could not stretch the definition of a medical doctor to include a psychologist. However, the court concluded that this objection would not extend to the testimony of the other psychologist, since he did not examine Blythe and was merely called as an expert witness to give his opinion based on observation and a review of the medical records. Thus, the court remanded the case to the Workers Compensation Court, ordering it to reconsider without reference to the examining psychologist's testimony. A.S.L. Federal Court Finds HIV+ Plaintiff Covered by ADA, But Holds There Was No Actionable Discrimination On Dec. 23, U.S. District Judge James M. Kelly ruled against an HIV+ plaintiff who claimed that he was mistreated by hospital personnel after seeking treatment for his assault-related injuries. However, in granting summary judgment in favor of the defendant hospital and employees in __Doe v. Montgomery Hospital__, 1996 WL 745524 (E.D.Pa.), the court recognized that an HIV+ individual is disabled within the meaning of the Americans with Disabilities Act (ADA). In Oct. 1994, the John Doe plaintiff sought treatment at Montgomery Hospital for two fractured wrists which he sustained after being assaulted. Doe informed the nurse who took his medical history that he was HIV+. He was admitted to the hospital and underwent orthopedic surgery on his broken wrists. After his discharge from the hospital, the plaintiff was seen on an out-patient basis in the orthopedic surgeon's office and in the hospital emergency room. Doe claimed that, before his surgery, an anesthesiologist solicited his HIV status within earshot of another patient and that hospital personnel indicated in large lettering on his chart that he was HIV+. He further claimed that a nurse came to his hospital room to take his temperature wearing a gown, mask and gloves. Doe also stated that a priest paid an unsolicited visit to his hospital room to pray over his bed. After his release from the hospital, Doe returned to the emergency room complaining of an odor emanating from one of his casts. The intake nurse advised Doe to schedule a regular appointment with his orthopedic surgeon. Feeling that he needed more immediate attention, Doe refused to leave the emergency room until he was treated for this condition. Several hours later an on-call surgeon replaced one of his casts. The court first determined that Doe was disabled under the ADA because he had an impairment "that substantially limits one or more of the major life activities." It identified procreation as such an activity and indicated that the plaintiff has sworn that he has and will continue to refrain from procreating due to his HIV status. The court further found that the defendant hospital as "a place of public accommodation" is liable under the ADA, as is any individual who has control over the service provider. Despite these findings, the court determined that the hospital personnel lacked both the power and decision-making authority necessary to be held them liable under the ADA. The court examined all of Doe's allegations and held that the plaintiff had failed to demonstrate that the hospital gave him inadequate or discriminatory case as a result of his disability. After granting summary judgment on the ADA claim, the court also dismissed, without prejudice, the plaintiff's remaining pendant state claim for lack of jurisdiction. C.W. Ohio Appeals Court Upholds Felonious Assault Conviction of HIV+ Man Who Spit at Police Officer Finding that a "no contest" plea constituted a waiver of the right to litigate contested facts, the Court of Appeals of Ohio, 10th District, unanimously denied an appeal of a felonious assault conviction of Jimmy Lee Bird on Dec. 31. __State v. Bird__, 1996 WL 751467. Bird was arrested on disorderly conduct charges on Oct. 2, 1993. Because of his condition at the time of the arrest, the police officers decided to take him to the hospital. At that time, Bird told the officers he was HIV+ and was taking AZT. At the hospital, Bird "became belligerent and disrespectful toward personnel in the emergency room" and was ordered out of the hospital by the attending physician. The police officers took him back to their wagon, at which time Bird spat in the face of one of the officers. He was indicted for felonious assault, which requires proof that a person knowingly causes or attempts to cause harm to another by means of a deadly weapon. Ohio R.C. 2903.11. Bird was assigned counsel, who assisted him in negotiating a no contest plea under which he was sentenced to probation rather than incarceration on his conviction. Bird attempted to appeal the conviction, claiming that the indictment was defective, that HIV-infected saliva is not a "deadly weapon" within the meaning of the statute, and that he received ineffective assistance of counsel. In an opinion for the appeals court, Judge Petree found that "the question whether HIV may be communicated through saliva is a question of medical fact which can be determined only by resort to expert medical evidence," but that a no contest plea constituted a waiver of the right to contest disputed facts at trial, and that Bird had failed to allege any particular in which the factual recitation of the indictment was defective. As to the ineffective assistance of counsel claim, the court appeared to believe that Bird came off pretty well, having his sentence initially suspended and then being placed on probation. "Under the circumstances," wrote Petree, "we will indulge the presumption that counsel's performance fell within the wide range of reasonable assistance." A.S.L. District Court Finds Employer Met Accommodation Requirement; Struggled With Disability Determination for HIV+ Plaintiff The United States District Court for the Eastern District of Virginia allowed summary judgment for an employer on the ground that it had reasonably accommodated its employee's HIV-related handicap. __EEOC v. Newport News Shipbuilding & Drydock Co.__, 1996 WL 731895 (E.D. Va. Dec. 18). Eugene O'Donnell, a 25-year employee of Newport News, experienced flu-like symptoms which he attributed to an allergic reaction enhanced by his HIV infection. Newport News first relocated O'Donnell to another building, where his symptoms apparently abated somewhat, and then relocated him again, to a second office where his allergies worsened. O'Donnell went on short-term disability while the company attempted to fix the environmental systems that were spreading the allergens. The EEOC argued that Newport News had failed to reasonably accommodate O'Donnell by forcing him to relocate out of the first office, and by placing him on short-term disability rather than allowing him to return to the first office. The court rejected both arguments, finding no evidence that it was medically necessary for O'Donnell to remain in the first office. In addition, the company was not required to select the accommodation O'Donnell favored, i.e., returning him to the first office. Newport News also showed that the level of allergens in the first office was higher than in the second, which undercut the EEOC's argument that reasonable accommodation would have meant O'Donnell returning there. Underlying the court's decision are hints that the court struggled with the question of whether to define O'Donnell's condition as a "true" disability. The opinion notes twice that O'Donnell did not have an AIDS diagnosis, that he had never had any opportunistic infections, and that his immune system was functioning within the normal range. D.W. D.C. Commission Fumbles Back-Pay Determination for PWA Hairdresser Affirming a decision on liability for disability and personal appearance discrimination, the District of Columbia Court of Appeals has remanded an employment discrimination case to the District's Human Rights Commission for a redetermination of the backpay award, holding that the Commission failed to make the required inquiry into mitigation of damages. __Natural Motion by Sandra, Inc. v. D.C. Commission on Human Rights__, 1997 WL 13685 (Jan. 29). The case concerns a discrimination claim by Richard Hamilton, a gay PWA who worked as a hairdresser for the appellant. In the spring of 1989 he developed lesions characteristic of Kaposi's sarcoma, as well as severe swelling on his leg. He did not tell his employer, Sandra Butler, that he had AIDS, but did tell her that he needed an accommodation to deal with the leg. She allowed him to take a reduced schedule and supplied a stool to help him keep the leg elevated. Over the next three years, Hamilton claims he was subjected to derogatory remarks about his illness and his sexual orientation. He was hospitalized several times to deal with AIDS complications, and had to cancel some appointments with clients. On January 30, 1991, he was discharged and filed a complaint with the Human Rights Commission, which determined that the various justifications offered by Butler for the discharge were pretextual. The Court of Appeals agreed, in an opinion by Judge Farrell, finding that there was substantial evidence in the record for the Commission's determination of pretext and for the Commission's conclusion: "It was obvious that respondents, especially Butler, became uncomfortable with [Hamilton]. They feared the swollen leg. By terminating Hamilton for this condition despite having received `assurances from [his] health provider that [his] condition was not a threat to anyone,' Natural Motion committed unlawful discrimination under the Act." However, the Court of Appeals found merit to Butler's contention that the backpay award was flawed by the Commission's failure to take into account what Hamilton earned or could have earned in other employment from the time of his discharge until the date of the reinstatement order. At the hearing before the Commission, Butler's counsel had asked questions concerning attempts by Hamilton to find other work, including his explanation as to why he did not actively look for work, but the Commission's decision goes into none of this and inexplicably states that the issue of mitigation was never raised by the respondent. The court pointed out that the record contained various factual assertions relevant to the mitigation issue, and that the Commission must fully consider the issue before making an award. The court rejected as premature Butler's challenge to the Commission's determination to award attorney's fees, since an amount was not yet specified pending conclusion of the appellate process. A.S.L. Connecticut Court Rejects Attempt to Fix Tort Liability on Per Diem Nurse for Another Nurse's Needlestick Injury Granting a defense motion for summary judgment, Judge Hurley of the Connecticut Superior Court ruled Jan. 3 in __Milam v. Carol__, 1997 WL 12235, that a nurse employed by the Waterford Health and Rehabilitation Center could not sue another nurse who worked at the Center for negligence in connection with a needlestick injury suffered by the plaintiff. According to papers filed with the motion, Carol Collette, a per diem nurse at Waterford, was on duty the evening of April 4, 1995, when a patient died from AIDS and an intravenous cassette used to deliver morphine to the patient was placed in a medication cart. When Susan Milam, also a nurse, reported for duty on the morning shift, she was stuck by the needle attached to the morphine cassette while it was being removed from the medication cart. Milam could not sue her employer for any resulting injury due to the workers compensation act, under which her sole remedy for injury due to negligence by the employer or a fellow employee was a prescribed claim for benefits. However, Milam claimed that the needle was negligently left in the cart by Collette, and asserted that Collette was an independent contractor and thus amenable to personal tort liability to Milam for the resulting injury. Judge Hurley's decision focuses solely on the question whether Collette was an employee. Although Collette worked on an as- needed, per diem basis, and also provided nursing services at other facilities in the community and carried her own personal liability insurance, Hurley found that she was, as a matter of law, an employee of the hospital after undertaking a searching review of Connecticut precedents and all the relevant facts of her relationship with Waterford. The court does not address the substance of the negligence claim. A.S.L. Pennsylvania Appeals Court Denies Unemployment Benefits to Nursing Assistant Fired For Refusing to Serve PWA's Affirming an order of the Pennsylvania Unemployment Compensation Board of Review, a panel of the Pennsylvania Commonwealth Court voted 2-1 to deny unemployment benefits to Darrin A. Dougherty, who was discharged from his position as a nursing assistant at Fair Acres Geriatric Care Center for refusing to work with AIDS patients. __Dougherty v. Unemployment Compensation Review Board__, 686 A.2d 53 (Dec. 3, 1996). Dougherty claimed that when he was assigned to the unit in question, he was not told in advance that certain patients had AIDS or that he was to use any special precautions. Dougherty had been instructed to use universal precautions with all patients, and had been issued rubber gloves. He expressed concern about the possibility of contracting HIV from a patient and bringing the infection home to his family, and refused to deal with the PWA's in his ward. He was discharged for willful misconduct, and his application for unemployment benefits was contested by the Center. The Review Board affirmed the referee's determination that Dougherty's willful misconduct in refusing to follow a reasonable assignment order justified disqualifying him for benefits. Rejecting Dougherty's contention that the assignment was unreasonable because he was not given adequate training, Judge Narick wrote for the court: "Claimant did not offer any evidence of what training he believed he was lacking. Claimant did receive Universal Precautions training but did not specify what type of information Employer omitted in that training which was necessary to protect his health while working with AIDS patients. In fact, Claimant's training included information about the cause and prevention of AIDS. The Universal Precautions training also included instruction on how to prevent the transmission of disease, including the routine use of gloves, proper hand washing, the use of further protective equipment for certain procedures, methods of handling needles, and how to dispose of infectious waste and handling soiled laundry." Concluded Narick, "Our careful review of the record reveals solely that Claimant, despite his training, harbored unnecessary fears and misconceptions concerning AIDS. Claimant has only demonstrated to this Court that he had subjective beliefs that these patients posed a special risk to him and that Employer had inadequately equipped him to deal with those risks. A subjective belief alone does not constitute good cause for actions that would otherwise disqualify a claimant from benefits." In a brief dissent, Judge Freedman contended that the court had improperly failed to address the contention that the employer's directive to work with AIDS patients was reasonable under the circumstances, apparently accepting Dougherty's contention that the Center had provided inadequate training and protective gear for the assignment. A.S.L. U.S. Court in Louisiana Allows Action to Proceed Against Discriminatory Counselor at Trade School U.S. District Judge Livaudais refused to dismiss a claim under the Louisiana Human Rights Act against a financial aid counselor at Cameron College alleging differential treatment of an HIV+ applicant for admission. __Griffin v. Cameron College, Inc.__, 1997 WL 13717 (E.D.La., Jan. 13). The claim is presented as supplementary to federal claims against the college under the Rehabilitation Act of 1973 and the Americans With Disabilities Act. Pansy Aaron Griffin learned she was HIV+ early in 1995. On July 21 of that year, she applied for admission to Cameron College, a private, for-profit institution, seeking to pursue a course of study either as a licensed practical nurse or a medical assistant. She disclosed her HIV status to the Admissions representative, who told her that it would not be a bar to admission and referred her to Pam Corona, the Financial Aid counselor. Corona advised her that she would be entitled to a federal Pell Grant to assist with tuition and fees, but that she would have to pay for books and uniforms without such assistance, and advance payment would be required before she could be admitted. Griffin alleges that this advance payment requirement was not imposed on applicants who were not HIV+, and also that Corona criticized Neal for admitting an HIV+ applicant. She also claims that Neal was discharged for admitting her to the college. Griffin sued Corona and the college for disability discrimination. As individual employees are not subject to liability for their employer's actions under the federal statute, Griffin did not oppose Corona's motion to dismiss the federal claims against her, and this decision concerned only Corona's continued inclusion as a co-defendant on the supplementary state law claim under Louisiana's Human Rights Act. Corona argued that "because she had no authority or discretion to make decisions on behalf of defendant Cameron College," she could not be held liable under the Act. "By law," wrote Judge Livaudais, "the statute is not so limiting," and found that summary judgment would be inappropriate since there were issues of material fact as to whether Corona had treated Griffin differently based on her HIV status. A.S.L. Federal Court Dismisses Tort Claims Against Prominent AIDS Doctor In __Santan-Morris v. New York University Medical Center__, 1996 WL 709577 (S.D.N.Y. Dec. 10), U.S. District Judge Miriam Cedarbaum ruled that the plaintiff, Eileen Santan-Morris, failed to state a claim of intentional infliction of emotional distress and dismissed as time barred the plaintiff's claim of tortious interference with economic interests. When Ellen Santan-Morris was assigned to work for Dr. Alvin Friedman-Kien in May 1990 her duties were administrative in nature. After a laboratory technician resigned in June 1993, Ms. Santan- Morris was assigned to perform new tasks including the preparation, handling and transporting of blood and urine samples. Plaintiff alleged that some of the specimens were HIV- infected. After being given these added responsibilities, the plaintiff began to suffer anxiety attacks. Plaintiff claimed that in the course of obtaining medication for this condition, she discovered that Dr. Friedman- Kien had used her name for other prescriptions that she had never received. According to Ms. Santan-Morris, when she confronted Dr. Friedman-Kien with these facts he threatened to fire her if she reported it. Plaintiff requested and was denied a transfer to another department. Plaintiff then informed her superiors that she would notify the Occupational Safety and Health Administration (OSHA) if she was required to continue handling the specimens. Plaintiff claims that Dr. Friedman-Kien then asked for her resignation which she gave him under duress in April 1994. Ms. Santan-Morris claims that after she stopped working at NYU, Dr. Friedman-Kien continued to retaliate against her by telling others that she was mentally unstable and by informing her bank that she had embezzled money. The court requested that Dr. Friedman-Kien turn over materials that he claimed proved that the Ms. Santan-Morris had embezzled funds. The defendant refused these requests. The court chose to ignore the defendant's lack of cooperation and further asserted that even if Dr. Friedman-Kien acted in the manner alleged by Ms. Santan- Morris, the defendant's conduct was not "atrocious and intolerable" and did not rise to the required level of outrageousness to make out a claim of intentional infliction of emotional distress. The court also held that the defendant's conduct occurred and his statements were made more than one year before Jan. 29, 1966, the expiration date of the statute of limitations. Even though Dr. Friedman-Kien allegedly continued to make defamatory remarks after this date, Judge Cedarbaum refused to extend the statutory period under New York's doctrine of continuing wrongs. She held that in order to toll the statute of limitations under this doctrine the continuing wrongs must be sufficient to state a claim of intentional infliction of emotional distress independent of the acts that fell outside of the time bar. The court held that the continuing statements failed to meet this standard. C.W. 11th Circuit Endorses EEOC Position on Disabilities That Can Be Controlled Through Medication Departing from the reasoning of a small but growing body of cases on the subject, the U.S. Court of Appeals for the 11th Circuit held in __Harris v. H & W Contracting Co.__, 102 F.3d 516 (Dec. 31), that a person with Grave's disease, which is controllable through medication, may nonetheless be considered a person with a disability under the Americans With Disabilities Act and thus protected from unjustified employment discrimination. This decision opens up a disagreement with the 5th Circuit, which ruled in __Chandler v. City of Dallas__, 2 F.3d 1385 (Sept. 20, 1993), that a person with impaired vision is not covered by the Act if his vision can be corrected through glasses or contact lenses, and with several district courts that have expressly refused to follow an EEOC interpretive guideline that is followed in the __Harris__ decision. __See__, e.g., __Murphy v. United Parcel Service__, 1996 WL 699380 (D.Kans., Oct. 22); __Moore v. City of Overland Park__, 1996 WL 753949 (D.Kans., Dec. 17); __Gerdes v. Swift-Eckrich, Inc.__, 1996 WL 738523 (N.D.Iowa, Dec. 2, 1996). The EEOC interpretation, published at 29 C.F.R. app. sec. 1630.2(j) (1996), states, in pertinent part: "The determination of whether an individual is substantially limited in a major life activity [a requirement to be considered disabled under the first prong of the definition under the ADA] must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." The 11th Circuit in __Harris__ found that this statement is fully supported by Congressional intent as expressed in the legislative history of the statute, contrary to the other courts cited above, which refused to defer to this interpretation on the ground that it was seen as inconsistent with the express language of the statute. This issue is, of course, potentially crucial for ADA and Rehabilitation Act sec. 504 protection for persons with HIV- infection and/or AIDS, particularly as new treatments make it possible that HIV/AIDS will become a medically manageable condition over significant periods of time for many persons with AIDS. A.S.L. Another Court Finds Estoppel Bars Discrimination Claim by Disability Benefits Recipients Continuing a disturbing trend, the Michigan Court of Appeals has approved the use of estoppel to prevent a person who is receiving disability benefits from asserting an employment discrimination claim under disability law. In __Tranker v. Figgie International__, 1997 WL 3193 (Jan. 3), a per curiam decision, the court affirmed dismissal of a claim under the Michigan Handicappers' Civil Rights Act on the ground that the plaintiff had begun receiving Social Security Disability benefits based on a claim of total disability prior to his discharge from employment. (The case involved a man who suffered continuing disabling effects of injuries sustained in an automobile accident; he was discharged some time after returning to work.) Facing a question of first impression under Michigan law, the court found "persuasive" the decision of the U.S. Court of Appeals for the 3rd Circuit in __McNemar v. Disney Store, Inc.__, 91 F.3d 610 (1996), in which that court held that an HIV+ plaintiff who had filed a claim for disability benefits with the Social Security Administration could not simultaneously pursue a claim for employment discrimination under the Americans With Disabilities Act against his employer. The court's reasoning was that a plaintiff under ADA must allege that the impairment constituting a disability does not prevent him from performing the duties of his job, but an applicant for Social Security disability benefits must allege under oath that he is disabled from performing gainful employment. Seeing this allegations as inconsistent, the court raises an estoppel against the plaintiff who has been receiving disability benefits from pursuing the discrimination claim. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Blumenkopf, Jay S., Dean M. Conway, and Kristina B. Pett, __Same- Gender Harassment in the Workplace__, 38 For the Defense No. 12, 24 (Dec. 1996). Boyd, Elizabeth A., Richard A. Berk, and Karl M. Hamner, __"Motivated by Hatred or Prejudice": Categorization of Hate- motivated Crimes in Two Police Divisions__, 30 L. & Soc. Rev. 819 (1996). Chambers, David L., __What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples__, 95 Mich. L. Rev. 447 (November 1996). Colker, Ruth, __Pregnant Men Revisited or Sperm Is Cheap, Eggs Are Not__, 47 Hastings L.J. 1063 (April 1996) Herbert, Steve, __Morality in Law Enforcement: Chasing "Bad Guys" with the Los Angeles Police Department__, 30 L. & Soc. Rev. 799 (1996). Ikemoto, Lisa C., __The In/Fertile, the Too Fertile, and the Dysfertile__, 47 Hastings L.J. 1007 (April 1996). Mountbatten, John, __Priscilla's Revenge: or the Strange Case of Transsexual Law Reform in Victoria__, 20 Melbourne U. L. Rev. 871 (June 1996). Nivala, John, __Constitutional Architecture: The First Amendment and the Single Family House__, 33 San Diego L. Rev. 291 (Feb-Mar 1996). O'Connell, Rory, __Natural Law: Alive and Kicking? A Look at the Constitutional Morality of Sexual Privacy in Ireland__, 9 Ratio Juris 258 (Sep. 1996). Robertson, John A., __Assisted Reproductive Technology and the Family__, 47 Hastings L.J. 911 (April 1996). Stychin, Carl F., __Constituting Sexuality: The Struggle for Sexual Orientation in the South African Bill of Rights__, 23 J. L. & Society (Cardiff Law School, Wales) 455 (December 1996). __Student Notes & Comments:__ Dillof, Anthony M., Romer v. Evans__ and the Constitutionality of Higher Lawmaking__, 60 Albany L. Rev. 361 (1996). Eichinger-Swainston, Katja M., Fox v. Fox__: Redefining the Best Interest of the child Standard for Lesbian Mothers and Their Families__, 32 Tulsa L.J. 57 (Fall 1996). Lee, Tiffani G., Cox v. Department of Health and Rehabilitative Services__: A Challenge to Florida's Homosexual Adoption Ban__, 51 U. Miami L. Rev. 151 (Oct. 1996). Loveland, Ian, __A Fundamental Right to Be Gay Under the Fourteenth Amendment?__, Pub. L. 601 (Winter 1996). McFarland, Deborah N., __Beyond Sex Discrimination: A Proposal for Federal Sexual Harassment Legislation__, 65 Fordham L. Rev. 493 (Oct. 1996). Pham, Curt, __Let's Get Married in Hawaii: A Story of Conflicting Laws, Same-Sex Couples, and Marriage__, 30 Fam L. Q. 727 (Fall 1996) (Schwab Essay Contest Winner). Wachs, Scott W., __Slamming the Closet Door Shut:__ Able, Thomasson__ and the Reality of "Don't Ask, Don't Tell"__, 41 N.Y.L.S. L. Rev. 309 (1996). __Symposia:__ A theme issue on new reproductive technology and the law in Vol. 47, No. 4 (April 1996) of the Hastings Law Journal includes several articles of particular interest to lesbians and gay men, highlighted above, but the whole issue is undoubtedly of value to those with an interest in the subject. __Specially Noted:__ Prof. Chambers's article, noted above, is the first we have seen to do an extensive analysis of the legal consequences for same-sex couples if marriage becomes available. * * * The International Gay and Lesbian Human Rights Commission and the Lambda Legal Defense & Education Fund, Inc., have jointly published __Asylum Based on Sexual Orientation: A Resource Guide__, to assist asylum seekers in the U.S. The Guide is edited by Sydney Levy, IGLHRC Asylum Project Coordinator, with the assistance of Lambda staff attorney Suzanne Goldberg. Copies may be purchased from IGLHRC (415-255-8680) or Lambda (212-995-8585); there is a reduced price for pro bono attorneys and low-income clients. AIDS & RELATED LEGAL ISSUES: Alkas, Peri H., and Wayne X. Shandera, __HIV and AIDS in Africa: African Policies in Response to AIDS in Relation to Various National Legal Traditions__, 17 J. Legal Med. 527 (Dec. 1996). Association of the Bar of the City of New York, __Comment on Maternal Pediatric HIV Prevention and Care Program__, 51 Record of the Association of the Bar of the City of New York 826 (December 1996). Closen, Michael L., __HIV-AIDS, Infected Surgeons and Dentists, and the Medical Profession's Betrayal of Its Responsibility to Patients__, 41 N.Y.L.S. L. Rev. 57 (1996). Elovitz, Marc E., __Why the Debate on Restricting Health Care Workers With HIV Should End: A Response to Professor Closen__, 41 N.Y.L.S. L. Rev. 141 (1996). Karlan, Pamela S., and George Rutherglen, __Disabilities, Discrimination, and Reasonable Accommodation__, 46 Duke L.J. 1 (Oct. 1996). Wilson, John P., __Limitation of Manufacturer Liability for Administration of an AIDS Vaccine Overseas__, 30 Int'l Lawyer 783 (Winter 1996). Symposium Dialogue, __Job Restrictions and Disclosure Requirements for HIV-Infected Health Care Professionals: Whose Privacy Is It Anyway?__, 41 N.Y.L.S. L. Rev. 5 (1996) (Participants: Michael L. Closen, Marc E. Elovitz, Arthur S. Leonard, Kathryn C. Meyer, Norton Spritz). __Student Notes & Comments:__ Robling, Kenneth C., __Negligent HIV Testing and False-Positive Plaintiffs: Pardoning the Traditional Prerequisites for Emotional Distress Recovery__, 43 Cleveland State L. Rev. 655 (1995). Stenger, Christine E., __Taking__ Tarasoff__ Where No One Has Gone Before: Looking at "Duty to Warn" Under the AIDS Crisis__, 15 St. Louis U. Pub. L. Rev. 471 (1996). __Symposia:__ __Symposium: Job Restrictions and Disclosure Requirements for HIV- Infected Health Care Professionals: Whose Privacy Is It Anyway?__, 41 N.Y.L.S. L. Rev. No. 1 (1996) (edited transcript of discussion, bibliography, and two articles, noted above, with introduction by Arthur S. Leonard). EDITOR'S NOTE All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are not official positions of the Lesbian and Gay Law Association of Greater New York. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing. Please address correspondence to the Editor or send by e-mail. A.S.L.