Can an employer fire a worker who is diagnosed as having AIDS? California this week said an emphatic `no.' State laws that protect the physically handicapped from job discrimination also apply to workers with acquired immune deficiency syndrome, according to a unanimous ruling of the California Fair Employment and Housing Commission.
The ruling clarifies the rights of AIDS patients in the workplace - at least in California.
But lawyers who argued the case, the first of its type in the nation to be litigated, say they hope it will set a precedent for other states.
The commission's decision, however, contradicts an advisory issued last year by the United States Department of Justice.
According to the department's memo, US law protecting employment rights of the handicapped cannot be used to challenge federal contractors who fire AIDS patients because of concern over contagion in the workplace.
``Hopefully, no courts will follow their ruling,'' says Gloria Barrios, a lawyer who handled the case for the California commission.
She says she hopes, instead, that they will look to California, where the outcome ``really hinged on expert testimony that AIDS is not transmitted casually.''
Virtually every state in the country is grappling with perplexing public-policy issues concerning AIDS in the workplace. Two-thirds of the states reject the Justice Department's position, according to a survey last summer by the National Gay Rights Advocates in San Francisco.
But answers are still being sought to a number of questions, including: Is AIDS a physical handicap under the law? Are employers required to pay medical expenses for AIDS patients, just as they would for any other physically disabled employee? Do an AIDS patient's co-workers have the right to know of the situation, or is the right to privacy paramount?
Some of these questions are being asked in Chicago, where a staff physician at Cook County Hospital recently was diagnosed as having AIDS. The hospital's governing board initially suspended him with pay, but he was reinstated last week while a peer review committee considers his appeal.
The hospital's board, director Terrence Hansen says, is concerned about patients' ``right to know if their doctor has a communicable disease,'' as well as liability issues.
Society is ``a long way from working things out,'' he says. ``We're still in the throes of having these issues put before us.''
The California ruling that AIDS is a physical handicap under the law puts it into the same category as other medically diagnosed conditions, such as epilepsy, diabetes, and hypertension, lawyers on the case say. ``You can argue that AIDS is unique because it is contagious and deadly, but we showed that there was no risk to other employees or to [the AIDS patient] himself,'' Ms. Barrios says.
Physicians in the public-health field say AIDS is caused by a virus that destroys the body's immune system, making the patient susceptible to other diseases. It is known to be transmitted only by sexual intercourse, by contaminated blood (via transfusions or the sharing of needles by intravenous drug users), and from a mother to her newborn, physicians say.
The ruling is based on the case of John E. Chadbourne of Santa Barbara, a quality-control analyst at the Raytheon Company, a federal defense contractor. Diagnosed as having AIDS in December 1983, he was not fired, but placed on medical leave, even though his doctor said he was able to work.
Mr. Chadbourne filed a complaint with the state Fair Employment and Housing Commission, as well as with the federal Office of Contract Compliance. He died of what doctors say were AIDS-related causes in January 1985. Throughout, Raytheon paid Chadbourn's medical costs and weekly disability income.
The federal agency ruled in 1984 in Raytheon's favor, saying in part that medical evidence regarding contagion was insufficient.
Then, when Chadbourne's case came before the state commission, an administrative law judge first ruled AIDS could not be considered a physical handicap. The commission this week overturned that decision.
The reversal was hailed by homosexual rights groups, which argue that most AIDS patients pose no risk to other workers - and therefore should not be fired or subjected to other forms of job discrimination.
Leonard Graff, legal director of the National Gay Rights Advocates and a lawyer who worked on the Chadbourne case, says the firing of AIDS patients is ``pervasive,'' judging from the number of calls coming into his San Francisco office and various human-service organizations.