Sanchez v. Lagoudakis

Kelly, J.

(dissenting). This case was resolved by the trial court on cross-motions for summary disposition pursuant to MCR 2.116(C)(10) following an evidentiary hearing. To determine if summary disposition was properly granted to Dorene Sanchez, it is necessary to view the facts in a light most favorable to the defendant.

At the hearing, a customer of the restaurant and a casual friend of Sanchez testified. She said that Sanchez “thought she was with someone that had— possibly had aids.” Other customers overheard the remark and, within a few weeks, a group of people from the local church refused to let Sanchez serve food to them. The friend betrayed Sanchez’ confidence, telling other friends and defendant. Defendant was “terrified” because “AIDS is a big thing. I got kids *728into my place. I got family. . . . It’s something really scare me.” In fact, defendant testified that “[i]f somebody come close to me and I know he has aids, I’m going to run away. . . . Even if I see the picture with aids, I don’t want to touch him.”

There is no evidence in the record of this case that Sanchez was unhealthy. However, defendant laid her off until she produced proof that defendant could show his customers that she was “healthy from AIDS.” Sanchez produced the test results for her employer, but objected to his showing them to customers.

The majority’s opinion sanctions defendant’s conduct, holding that testing was permissible since defendant had a reasonable suspicion that Sanchez had AIDS. The holding is flawed for two reasons: First, it permits discrimination against those who have or are suspected to have aids or another compromised immune system disease, but who do not evidence a food-borne illness. Second, it sanctions an employer forcing an employee to undergo testing because of a suspicion, based alone on rumor and innuendo.1

i

The majority of this Court holds that a severely compromised immune system associated with aids is unrelated to an individual’s qualification for employment in the food-services industry. The compromised immune system must not be “ ‘accompanied by an opportunistic infection in a communicable form that *729can be transmitted through contact with food.’ ” Ante at 712. I agree with that conclusion.

However, the majority also holds that an employer may require any person suspected of being afflicted with AIDS or another compromised immune system disease to be tested for communicable disease. There need be no evidence of illness or infection that could be transmitted through food handling. This part of the holding discriminates among employees having certain diseases not passed to others in food handling. It imposes a requirement not present in the Public Health Code. MCL 333.1101 et seq.) MSA 14.15(1101) et seq.

Additionally, the opinion permits discrimination by others by allowing an employer to oblige an employee to be tested when the employee evidences no illness or infection.

In authorizing testing in suspicion of aids, the majority also makes a medical decision that this Court is unqualified to make on the basis of the record before us. To the extent that this is a public health issue, it is best left to health care professionals who are experts in communicable diseases and aids. On the basis of the record, those professionals have spoken with one voice. They advise that no medically sound basis exists to test an employee with aids, unless there is evidence the employee has a food-borne illness. If the employee is sneezing or coughing or shows another sign of illness, the employer should excuse the person from work and may order testing before return.2

*730The root question that should be dispositive here is whether the food-service worker is sick with a communicable disease that can be transmitted through food.

n

Food is not the vector for transmission of AIDS or the mv virus, and that fact was well known in late 1987, when the controversy arose over Dorene Sanchez. According to a report of the United States Centers for Disease Control, individuals who had been identified as having AIDS could be grouped as follows:

(1) sexually active homosexual and bisexual men (74 percent);
(2) heterosexual intravenous drug abusers who share injection needles (17 percent);
(3) heterosexuals who have intercourse with people who are seropositive or at high risk (4 percent);
(4) hemophiliacs who have received contaminated blood-clotting factor products (1 percent);
(5) other people who have received transfusions of contaminated blood (2 percent);
(6) newborn infants or infected mothers (1 percent). [Aids and the Law — A Guide to the Public, p 31 (Yale University Press, 1987).]

The virus had been isolated from blood, semen, vaginal secretions, saliva, tears, breast milk, cerebrospinal fluid, amniotic fluid, and urine. However, the Centers for Disease Control concluded that AIDS is transmitted *731only through sexual contact, exposure to infected blood, and perinatally from mother to child. Centers for Disease Control, Recommendations for Prevention of Hiv Transmission in Health-Care Settings, 36 Morbidity & Mortality Weekly Report Supplement, No 2S (August 21, 1987).

Guidelines regarding AIDS were promulgated on November 15, 1985, with respect to food-service workers. Centers for Disease Control, Recommendations for Preventing Transmission of Infection With Human T-Lymphotropic Virus Type III/Lymphadenopathy-Associated Virus in the Workplace, 34 Morbidity & Mortality Weekly Report, pp 681-686, 691-695 (November 15, 1985). They reiterate that “[b]ecause AIDS is not transmitted through preparation or serving of food and beverages . . . food-service workers known to be infected with aids should not be restricted from work unless they have another infection or illness for which such restriction would be warranted.” Id. The guidelines go on to provide:

All fsws [food-service workers] should follow recommended standards and practices of good personal hygiene and food sanitation. All fsws should exercise care to avoid injury to hands when preparing food. Should such an injury occur, both aesthetic and sanitary considerations would dictate that food contaminated with blood be discarded. Fsws known to be infected with htlv-iii/lav need not be restricted from work unless they have evidence of other infection or illness for which any fsw should also be restricted. Routine serologic testing of fsws for antibody to htlv-ih/iav is not recommended to prevent disease transmission from fsws to consumers. [Id. (emphasis added).]

The United States Department of Agriculture also issued its own guidelines:

*7321. Since there is no data indicating a risk to employee safety or product wholesomeness based upon the presence of an individual who tests positive for the hiv virus, no changes or precautions need be initiated in the work place.
2. Since federal personnel regulations already address medical disabilities, an employee diagnosed as having aids will be treated no differently than any other employee with a medical disability.
3. The agency should develop an educational program for its employees. The program could be used to address the nature of the disease, its transmissibility, and types of medical counseling and support resources. [Usda, Aids Information Memo (September 1987).]

This teaches that food was not considered an agent for transmitting aids as long ago as 1987. The USDA memo on aids is consistent with a publication of the Michigan Department of Public Health that was introduced into evidence in this case. Center for Health Promotion, Michigan Dep’t of Public Health, AIDS: 100 Common Questions & Answers (January 1987). It instructs that someone diagnosed with aids employed in a restaurant working with food should be allowed to continue working as long as the employee is well enough to work. An exception exists where the work environment poses a risk of potential direct blood-to-blood contact with other individuals. Underlying the policy is the established fact that aids is not transmitted through casual contact, food, or water.

The Department of Public Health’s position is also outlined in a letter in the materials submitted to this Court. In response to an inquiry regarding aids in the food-service workplace, the department relied on two reports: one from the Centers for Disease Control published in the November 15, 1985, issue of Morbidity and Mortality Weekly Report and one from the *733National Restaurant Association. Both concluded that food-service workers known to be infected with aids need not be restricted from work “ ‘unless they have evidence of other infection for which any food-service worker would also be restricted.’’ Ante at 721, n 21. The majority believes that its holding is consistent with this position. However, the majority’s holding clearly allows an employer to require an employee suspected of having aids to be tested in the absence of evidence of other infections.

That the Legislature clearly intended to encompass, in the Handicappers’ Civil Rights Act’s definition of handicap, persons with communicable diseases is supported by the Michigan Civil Rights Commission’s policy statement. The statement explicitly concludes that AIDS is a covered “handicap.” The Michigan Public Health Advisory Council has advised that “there is no need for specific precaution against aids in the work place.” In part, on the basis of that advice, the commission has indicated that it will “accept and process complaints from persons who believe they have been discriminated against in employment . . . because of AIDS or a related condition or the perception of aids.”

This is consistent with interpretations of similar statutes in other states. In Raytheon Co v Fair Employment & Housing Comm,3 the court recognized the critical need to protect co-workers and others from contracting aids. It stressed that fear over AIDS and the widespread lack of knowledge about it had produced deep anxieties and considerable hysteria about the disease and those who suffered from it. However, the court held that ignorance and fear *734about aids could not justify a departure from rules requiring employers to prove a danger of transmission to co-workers before permitting discrimination.

In 1987, the United States Court of Appeals for the Ninth Circuit recognized “[t]he vast majority of opportunistic infections that prey upon aids patients are not transmissible to others with uncompromised immune systems.” Chalk v United States Dist Court Central Dist of California, 840 F2d 701, 706, n 8 (CA 9, 1987).

It also is instructive to consider the United States Supreme Court case of Nassau Co, Florida School Bd v Arline,4 which involved an elementary school teacher suffering from tuberculosis. The teacher was discharged following her third relapse. She sued her employer under the Rehabilitation Act, 29 USC 794, the statute after which the hcra was patterned. The Supreme Court affirmed a finding by the United States Court of Appeals for the Eleventh Circuit that tuberculosis is, in fact, a “handicap.” However, it remanded the case for a factual determination whether the plaintiff was “otherwise qualified” for her position, despite her disease. As to whether the risk of contagion alone would have constituted a covered handicap, the Court stated:

Allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of § 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By amending the definition of “handicapped individual” to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Con*735gress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious. The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of “handicapped individual” is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were “otherwise qualified.” Rather, they would be vulnerable to discrimination on the basis of mythology — precisely the type of injury Congress sought to prevent. [Id. at 284-285 (emphasis in original).]

The type of discrimination referred to in this passage is what was visited on Dorene Sanchez. She was rumored to have AIDS. Her employer feared, among other things, that the rumor would adversely affect his business. Even though Sanchez was, by all appearances, healthy, her employer sent her to be tested for the AIDS virus. The record shows that the employer would not allow other employees to work when sick, but did not require them to provide evidence of their health status following an illness. Discrimination based on hysteria is, in part, what the hcra is intended to eliminate.

*736This case is similar to Saladin v Turner.5 There, the plaintiff was a waiter at an upscale restaurant in Oklahoma. His partner tested positive for Hiv in the fall of 1987, and the restaurant’s owner believed that the plaintiff also might be infected with Hiv. The owner suspended the plaintiff from his employment until he was tested for mv. After the test revealed no infection, he was allowed to return to work. The length of the plaintiff’s absence was approximately two weeks. He returned to work, but in 1993, because his partner’s health deteriorated, the restaurant owner forbade the plaintiff to discuss any AIDS-related issues with people at the restaurant. Soon after, he was summoned to a meeting with the owner and suspended for thirty days without pay.

The stated reasons for the suspension, which the plaintiff had tape recorded, were (1) alleged customer complaints about the plaintiff’s discussions of his partner’s health status, and (2) speculative concern that customers would be disturbed by the fact that the plaintiff was living with a person with aids. The court found a violation of the Americans with Disabilities Act. It concluded that the plaintiff’s association with a person having a disability was a motivating factor in the defendant’s decision to suspend the plaintiff from his employment.

In short, an employer is expected to send an employee home from work where there is evidence of a communicable disease that is transmitted through food or in the process of preparing and serving food or beverages. An employer also may require medical clearance to return to the workplace. However, *737requiring an employee to be tested on the basis of a “suspicion” runs afoul of the hcra’s and ada’s proscription against medical examinations not job-related and not required by business necessity. 29 CFR 1630.14(c). Requiring only those suspected of having aids and other compromised immune system diseases to be tested for communicable diseases, absent some discernible evidence of a food-borne illness, is clearly a violation of the HCRA.

m

The majority also holds that “defendant’s fear that plaintiff presented a health threat because she might introduce other diseases into the workplace was objectively reasonable . . . .” It considers the historical time in which these events occurred and the information the employer had in 1987. Ante at 725. However, whether an action is reasonable is not a matter of law. It is a classic jury question. Hence, the trial court and this Court err in resolving the question on a motion for summary disposition.

If, however, this determination were a matter of law, I would hold that the employer’s suspicion in this case was not reasonable. Defendant’s focus was not that plaintiff might have an opportunistic infection that lacked symptoms. The record shows that he was afraid, among other things, that he, his family, and his customers would get aids.6 However, as discussed above, the information available in 1987 firmly estab*738lishes that food was not a vector for the transmission Of AIDS.

Defendant’s request that Sanchez be tested was not based on a reasonable suspicion that Sanchez harbored some AIDS-associated communicable disease. His request was based on rumor and innuendo, Sanchez’ expressed concern because of contact with another who might have aids, and his own fears. This is not sufficient to justify the type of discriminatory behavior that defendant perpetrated here.

Accordingly, I would affirm the decision of the Court of Appeals.

My dissent is not intended to suggest that my colleagues on the Court lack in sensitivity to the various communities most closely affected by aids. I believe that they are acting with the best of intentions, but simply are wrong in their ruling today.

Section 3-101 of the Food Service Sanitation Manual of the United States Public Health Service, as adopted by the Michigan Department of Public Health in 1981 AACS, R 325.25103(b) and the provisions of the 1981 *730AACS, R 325.25909 authorize a food-service employer to exclude a food-service employee from working in a food-service establishment when the employee is suspected of having a disease that can be transmitted through food. See also 1981 AACS, R 325.25909(3).

212 Cal App 3d 1242; 261 Cal Rptr 197 (1989).

480 US 273; 107 S Ct 1123; 94 L Ed 2d 307 (1987).

936 F Supp 1571, 1575 (ND Okla, 1996).

At the evidentiary hearing, defendant testified that although he was not a doctor, he was aware that pneumonia, salmonella, and Cryptosporidia could be associated with AIDS. When pressed, however, defendant admitted that “that’s what I’m thinking about, aids . . . that’s what . . . was scaring [me] to death.”