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SANTA CLARA COUNTY CODE OF ORDINANCES: CHAPTER IV. PROHIBITION AGAINST DISCRIMINATION BASED ON HIV OR AIDS*

Copyrighted by SANTA CLARA COUNTY CODE & Municipal Code Corporation, 1998.

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CHAPTER IV.
PROHIBITION AGAINST DISCRIMINATION BASED ON HIV OR AIDS*

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Editor's note--Section 1 of Ord. No. NS-519.5, enacted Oct. 21, 1986, repealed former Ch. IV, §§ B13-62--B13-70, which pertained to parades, processions and meetings and derived from §§ 7.1.2-1--7.1.2-8 of the 1954 Code. Section 2 of Ord. No. NS-519.5 added a new Ch. VII to Div. B3 pertaining to parades. Subsequently, § 1 of Ord. No. NS-300.423, adopted Dec. 8, 1987, added a new Ch. 4, §§ B13-62--B13-74. Additionally, Ord. No. NS-300.646, § 1, adopted Jan. 23, 2001, amended the title of Ch. IV to read as herein set out.

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Sec. B13-62. Purpose.

It is the policy of the County of Santa Clara to eliminate discrimination against persons with HIV or AIDS, or persons perceived to have HIV or AIDS. Towards this end, the County of Santa Clara hereby adopts anti-discriminatory ordinance provisions affecting employment, real property transactions, business establishments, and HIV/AIDS testing.

(Ord. No. NS-300.423, § 1, 12-8-87; Ord. No. NS-300.646, § 2, 1-23-01)

Sec. B13-63. Definitions.

As used in this chapter, the following terms have the meaning set forth in this section.

(a) AIDS means acquired immune deficiency syndrome.

(b) Business establishment means any entity, however organized, which furnishes goods or services to the general public. An otherwise qualified establishment which has membership requirements is considered to furnish services to the general public if its membership requirements: (a) consist only of payment of fee; or (b) consist of requirements under which a substantial portion of the residents of this County could qualify.

(c) Bona fide occupational qualification means, but is not limited to, the capacity of a person to perform his or her duties without endangering his or her health or safety, or the health or safety of others.

(d) Employer means any natural person, firm, corporation, partnership, or other organization, association or group of persons however organized, having one or more employees or volunteers.

(e) HIV means human immunodeficiency virus.

(f) Perceived to have HIV or AIDS means any perception that a person is either at risk from suffering from HIV or AIDS, or has HIV or AIDS, whether that perception is real or imaginary.

(g) Real property transaction means any transaction affecting real property, including, but not limited to, the sale, lease, rental, or financing of real property.

(Ord. No. NS-300.423, § 1, 12-8-87; Ord. No. NS-300.646, § 3, 1-23-01)

Sec. B13-64. Employment.

(a) Unlawful employment practices. It shall be an unlawful employment practice for any employer, employment agency or labor organization or any agent or employee thereof to do or attempt to do any of the following:

(1) Fail or refuse to hire, or to discharge any person, or otherwise to discriminate against any person with respect to compensation, terms, conditions or privileges of employment, including promotion, on the basis (in whole or in part) that such person has HIV or AIDS or is perceived to have HIV or AIDS.

(2) Limit, segregate or classify employees or applicants for employment in any manner which would deprive or tend to deprive any person of employment opportunities, or adversely affect his or her employment status on the basis (in whole or in part) that such person has HIV or AIDS or is perceived to have HIV or AIDS.

(3) Fail or refuse to refer for employment any person, or otherwise to discriminate against any person on the basis (in whole or in part) that such person has HIV or AIDS or is perceived to have HIV or AIDS.

(4) Fail or refuse to include in its membership or to otherwise discriminate against any person; or to limit, segregate or classify its membership; or to classify or fail or refuse to refer for employment any person in any way which could deprive or tend to deprive such person of employment opportunities, or otherwise adversely affect his or her status as an employee or as an applicant for employment on the basis (in whole or in part) that such person has HIV or AIDS or is perceived to have HIV or AIDS.

(5) Discriminate against any person in admission to, or employment in, any program established to provide apprenticeship or other training or retraining, including any on-the-job training program on the basis (in whole or in part) that such person has HIV or AIDS or is perceived to have HIV or AIDS.

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

(b) Bona fide occupational qualification. Nothing contained in this section shall be deemed to prohibit selection, rejection or dismissal based upon a bona fide occupational qualification.

(c) Burden of proof. In any action brought under this section, if a party asserts that an otherwise unlawful discriminatory practice is justified as a bona fide occupational qualification, that party shall have the burden of proving: (1) that the discrimination is in fact a necessary result of a bona fide occupational qualification; and (2) that there exists no less discriminatory means of satisfying the occupational qualification.

(d) Exceptions:

(1) It shall not be an unlawful discriminatory practice for an employer to observe the conditions of a bona fide employee benefit system, provided such systems or plans are not a subterfuge to evade the purposes of this chapter; and provided further that no such system shall provide an excuse for failure to hire any person.

(2) Nothing in this section shall be construed to prohibit any act specifically authorized by the laws of the State of California or any actions taken by or under the direction of the Health Department of the County of Santa Clara in order to protect the public health.

(Ord. No. NS-300.423, § 1, 12-8-87; Ord. No. NS-300.646, § 4, 1-23-01)

Sec. B13-65. Real property transactions.

(a) 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 HIV or AIDS or is perceived to have HIV or AIDS:

(1) To interrupt, terminate, or fail or refuse to initiate or conduct any transaction in real property, including but not limited to the leasing of a rental unit; 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 in 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, alteration, rehabilitation, repair or maintenance of real property; or impose different conditions on such financing; or refuse to provide title or other insurance relating to the ownership or use of any interest in real property;

(4) 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.

(b) Exceptions. Nothing in this section shall be construed to prohibit any act specifically authorized by the laws of the State of California or any actions taken by or under the direction of the Health Department of the County of Santa Clara in order to protect the public health.

(Ord. No. NS-300.423, § 1, 12-8-87; Ord. No. NS-300.646, § 5, 1-23-01)

Sec. B13-66. Unlawful business practices.

(a) It shall be an unlawful business practice for any person to deny any individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any business establishment, including but not limited to medical, dental, paramedical, banking, financing, health care and convalescent services of any kind whatsoever, on the basis (in whole or in part) that such person has HIV or AIDS or is perceived to have HIV or AIDS.

(b) 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 this section prohibits.

(1) Nothing in this section shall apply to any blood bank, blood donation facility, sperm bank, sperm donation facility, organ donation facility, surrogate mother or surrogate mother facility, or to any like service facility or establishment engaged in the exchange of products containing elements of blood or sperm.

(Ord. No. NS-300.423, § 1, 12-8-87; Ord. No. NS-300.646, § 6, 1-23-01)

Sec. B13-67. HIV or AIDS testing.

No person shall require another to take any test or undergo any medical procedure designed to show or help show that a person has or does not have HIV or AIDS, or the AIDS antibody.

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

(b) Nothing in this section shall be construed to prohibit any act specifically authorized by the laws of the State of California or any actions taken by or under the direction of the Health Department of the County of Santa Clara in order to protect the public health.

(Ord. No. NS-300.423, § 1, 12-8-87; Ord. No. NS-300.646, § 7, 1-23-01)

Sec. B13-68. County facilities.

It shall be an unlawful practice for any person to deny any person the full and equal enjoyment of, or to impose different terms and conditions on the availability of any of the following except as necessitated in County medical facilities by accepted standards of medical practice:

(1) Use of any County facility or County service on the basis (in whole or in part) of the fact that such person has the medical condition HIV or AIDS or is perceived to have HIV or AIDS.

(2) Any service, program or facility wholly or partially funded or otherwise supported by the County of Santa Clara, on the basis (in whole or in part) of the fact that such person has the medical condition HIV or AIDS or is perceived to have HIV or AIDS. This subsection shall not apply to any facility, service or program which does not receive any assistance from the County of Santa Clara which is not provided to the public generally.

(Ord. No. NS-300.423, § 1, 12-8-87; Ord. No. NS-300.646, § 8, 1-23-01)

Sec. B13-69. Association and retaliation.

(a) Association. It shall be unlawful for any person to do any of the acts described in this chapter as a result of the fact that a person associates with anyone who has HIV or AIDS or is perceived to have HIV or AIDS.

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

(1) Has opposed any act or practice made unlawful by this chapter;

(2) Has supported this chapter and its enforcement;

(3) Has filed a complaint in any court or local, County, state or federal agency;

(4) Has testified, assisted or participated in any way in any investigation, proceeding or litigation under this chapter.

(Ord. No. NS-300.423, § 1, 12-8-87; Ord. No. NS-300.646, § 9, 1-23-01)

Sec. B13-70. Liability.

Any person who violates any of the provisions of this chapter or who aids in the violation of any provisions of this chapter is liable for each and every such offense for the actual damages thereof, in such amount as may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than $1,000.00, and such costs and attorney's fees as may be determined by the court. In addition, punitive damages may be awarded in a proper case.

(Ord. No. NS-300.423, § 1, 12-8-87)

Sec. B13-71. Enforcement.

(a) Civil section [action]: Any aggrieved person may enforce the provisions of this chapter in a civil action.

(b) Injunction: Any person who commits or proposes to commit an action in violation of this chapter may be enjoined therefrom by a court of competent jurisdiction.

(c) Non-exclusive remedy: Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law.

(Ord. No. NS-300.423, § 1, 12-8-87)

Sec. B13-72. Limitation of actions.

Judicial actions under this chapter must be filed within two years of the alleged discriminatory act.

(Ord. No. NS-300.423, § 1, 12-8-87)

Sec. B13-73. Nonwaiverability.

Any written or oral agreement which purports to waive any provision of this chapter is against public policy and void.

(Ord. No. NS-300.423, § 1, 12-8-87)

Sec. B13-74. 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.

(Ord. No. NS-300.423, § 1, 12-8-87)

Secs. B13-75--B13-78. Reserved.