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AIDS and damage awards: a crucial case and key EEOC memo.

In a landmark decision, Doe v. District of Columbia, a United States District Court Judge awarded damages to an applicant who was rejected for a firefighter position after it was disclosed that the applicant was HIV positive. The case, while brought under Section 504 of the Rehabilitation Act, has significant application to employment practices under the Americans with Disabilities Act ("ADA").

In Doe v. District of Columbia, 3 NDLR 33, _F.supp._ (Civil A.91-1642, D.D.C. 1992), the Court decided in favor of an applicant for a firefighter position, who after passing all examinations was offered a position. However, that offer was withdrawn when the individual disclosed he was HIV positive.

The Court reviewed the situation under the criteria of School Board of Nassau County v. Arline, 480 U.S. 273 (1987). It found the applicant to be an individual with a disability who was not a direct threat to others. He was an "otherwise qualified individual" who was denied employment solely because of his disability.

Doe's current ability to perform the functions of the job, including the extensive carrying and equipment requirements, as well as the need to provide mouth-to-mouth contacts with victims, were reviewed in detail. The city's reliance on the plaintiff's blood cell count and the public perception of persons with HIV in denying Doe employment were rejected. The medical evidence was clear that Doe's health was robust and that he was asymptomatic of AIDS.

Doe is a classic illustration of the value to litigants of cogent, clear, and correct medical evidence directly related to the position and the individual applicant/employee at issue.

Doe also illustrates a lower court following the Supreme Court's ruling in Franklin v. Gwinnett County Public Schools, 112 S. Ct. 1028 (see Nation's Cities Weekly, June 1, 1992) to base an award of compensatory damages for intentional employment discrimination. In addition to his $25,000 in compensatory damages, DOE recovered his back pay (minus wages earned in the interim) with interest and other employment benefits, injunctive relief forbidding the city from discriminating in the future and declaratory relief in holding that the city's policy and practice of denying employment based on HIV status violated the Rehabilitation Act. The city also had to pay court costs and the plaintiffs reasonable attorney fees.

This lawsuit is relevant to all municipalities with 15 or more employees since they are presently or soon will be subject to suit under the Americans with Disabilities Act. Given the same record, particularly the evidence related to the individual's medical condition and his ability to perform the duties, the result would have likely been the same, if the suit had been filed under the ADA.

In fact, since a jury trial is available under the ADA and Civil Rights Act, it is distinctly possible that the award under the ADA would have been larger than what Doe recovered under Section 504.

EEOC Enforcement Guidance

At about the same time as Judge Hogan was issuing his opinion in the Doe case, the lead agency in the federal government for employment discrimination issues, the United States Equal Employment Opportunity (EEOC), was issuing an internal compliance memorandum showing how the agency would be interpreting the damages provisions in the Civil Rights Act of 1991 and applying it to ADA.

On July 14, 1992, the EEOC issued an Enforcement Guidance on the availability of damages under the Civil Rights Act of 1991 which applies to intentional discrimination under the ADA. The Civil Rights Act sets limitations - from $50,000 to $300,00 - on the amount of damages that may be recovered by each claimant. The limitation (or "cap" as it is popularly known) is based on the number of employees. It includes full as well as part-time employees of the city. Cities with fewer than 15 employees are not subject to damages.

EEOC makes clear that certain elements of an award are in the nature of equitable relief and thus are not considered within the caps of compensatory damages. These include backpay, interest on backpay, frontpay, past out-of-pocket expenses ("pecuniary losses" such as moving expenses, job searches, medical expenses, physical therapy expenses, and other quantifiable items) and any other relief that is available under Title VII of the Civil Rights Act of 1964, which the 1991 law amended.

Thus, a person who is found to have been denied a job or promotion due to intentional and discriminatory actions of the employer can recover his/her salary (minus the interim earnings as in the Doe case) plus interest, their out-of-pocket losses, as well as damages. Damages include both future pecuniary expenses as well as non-pecuniary losses such as the emotional pain, suffering, inconvenience, mental anguish, injury to character or credit standing, loss of health or enjoyment of life.

For both pecuniary and nonpecuniary losses, there must be proof that the city's discriminatory conduct or action caused the loss to the complainant. Cities can use the "good faith efforts" claim as their defense, if city officials have consulted with the person with the disability regarding a reasonable accommodation

The denial of reasonable accommodation request should be made only after consultation with the person with the disability. Also remember that complainants have a duty to mitigate their damage and may not recover damages for harm that could have been avoided or minimized with reasonable effort.

The EEOC Enforcement Guidance also contains a discussion about recovering punitive damages. However, punitive damages are not recoverable against cities for violations of ADA.

The EEOC Enforcement Guidance is a major public pronouncement, giving significant insight into the Commission's approach to the ADA. What remains to be seen is how vigorous EEOC will be in seeking the damages it has said are recoupable.

An indication of EEOC's commitment may be taken from their FY93 budget request which includes 300 additional people to work on ADA and the Civil Rights Act of 1992. Those positions have been funded to work in offices outside of Washington, D.C., so stay tuned.
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Title Annotation:Americans with Disabilities Act; Equal Employment Opportunity Commission
Author:Goldman, Charles
Publication:Nation's Cities Weekly
Date:Oct 26, 1992
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