The Daily Tar HeelMonday, February 12, 19905
ADD
patients excluded from lhaimd 5 capped statute
By JENNIFER BLACKWELL
Staff Writer
An N.C. statute prohibiting discrimi
nation against the handicapped in the
workplace does not include people who
test positive for the AIDS virus, the
state supreme court ruled last Wednes
day. The decision rejected the suit brought
by Scott Burgess, a short-order cook
who was fired from the Your House
Restaurant in Raleigh in 1987 after
testing HIV-positive. Burgess charged
that this v iolated the 1985 state Handi
capped Persons Protection Act.
The central issue facing the judges in
their decision was whether a person
who is infected with HIV but has not
displayed any symptoms of the disease
is entitled to protection under this act,
wrote Associate Justice Louis Meyer in
the opinion of the court.
The court ruled that Burgess failed
to show that infection with HIV en
abled him to qualify as a "handicapped
person" under the act for two reasons.
One was the act's definition of a handi
capped person, a person who has a
physical or mental impairment which
limits one or more "major life activi
ties." Unlike the federal statute, the
N.C. act did not include "working" as a
"major life activity."
Meyer said Burgess did not prove
that his disease impaired a major life
activity under the terms specified in the
act, which include functions such as
walking, seeing, hearing, caring for
oneself and performing manual tasks.
Meyer also wrote that communicable
diseases themselves do not constitute a
handicap. The act's language and legis
lative history prove that the General
Assembly "affirmatively chose not to
Hearing
include persons infected with the HIV
virus within the scope of the Handi
capped Persons Act."
To support its contention that the
1985 act did not include persons in
fected with the HIV virus, the court
relied on a law passed by the General
Assembly last year which specifically
addresses AIDS discrimination.
The new law prohibits discrimina
tion against infected employees, al
though it does not prohibit employers
from denying employment to an appli
cant testing positive for the AIDS vi
rus. The law exempts restaurants until
July 1991.
Meyer wrote that these recent amend
ments proved that persons with com
municable diseases were not covered
under the Handicapped Persons Pro
tection Act. "They deal with a subject
that was not intended to be covered in
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the earlier legislation."
Lynn Fontana, Burgess' attorney,
said she was very disappointed with the
decision.
"The court went beyond what it
needed to do to decide the case in favor
of the employer," she said. The justices
could have held that the act did not
apply because the legislature amended
the Communicable Diseases Act last
year.
"They (the justices) could have just
said that and left it alone," instead of
including the statement that working
did not constitute a major life activity.
She added that this issue would
probably be addressed again in the
General Assembly in order to make the
act clearer. The AIDS battle is not
ovei with yet."
David Jones, a volunteer lobbyist for
the AIDS Services Project, said the
decision had serious repercussions for
the entire disabled community.
The decision does not mean that
people with communicable diseases are
any less protected by the state, he said,
but it is important since the court ruled
that working was not a major life func
tion. He said he was sure that the omission
of the term "working" in the N.C. stat
ute was deliberate, since this activity is
covered under the federal law.
"It could have a chilling effect," on
people with communicable diseases'
who are seeking employment, he said.
A ruling in Burgess' favor would
have only put a stop to pre-employment
testing, since the 1989 law now pro
tects people with communicable dis
eases from being fired. If he had won,
the ruling "would not have had that
much additional protection," he said.
Jones said he doubted that more
employers would begin using pre-
the grievance process, he added.
Edwards' grievance moved to Step 4
in September 1 988, but the hearing did
not begin until November 1989.
'. Burleson also said that since 1986
there were no blacks holding profes
sional positions in the employee rela
tions office, which hears grievance
hearings at the Step 2 level.
Edwards said after the hearing that
working for the police department
during her grievance has been very
difficult and that she was very happy
that the hearing was over.
"It's not easy working for the Uni
versity. Retaliation sets in my depart
ment. I feel like any little reason they
could get to fire me they would. They
shut me out all these years. I'm a threat
to them."
Edwards also said she was pleased
that many of the demands which she
made in her original grievance had
already been met.
In her grievance, Edwards requested
that:
D the department hire more black
females. Edwards was the first black
female ever to be hired by the depart
ment. Since her grievance began, a
second black female has been hired.
B more black officers be promoted
to positions of rank. Since Edwards
filed her grievance, two black officers
have been promoted to positions of
rank, putting the total number of blacks
with rank at four.
B the entire UNC grievance process
be revamped. Chancellor Paul Hardin
recently appointed a committee to re
view the grievance process.
B administrators acknowledge that
the 1987 reorganization was unfair.
B administrators replace those in
department management positions who
had shown favoritism during the 1987
reorganization. Edwards said this has
been accomplished through the reas
signment of former Public Safety Di
rector Robert Sherman and Mauer's
scheduled retirement.
Edwards also said she wanted com
pensation for being a "14-year token"
in the department. She mentioned that
the compensation might come in the
form of a promotion, the awarding of
back pay or a general monetary award.
"Whatever the judge (Nesnow)
thinks I deserve is OK with me."
Faculty
employment tests as a result of the
decision.
Jill Duval, the executive director of
AIDS Services Project in Durham, said
the ruling might make people with the
HIV virus afraid to apply for jobs be
cause the decision "sends a message to
the infected that theircourt system won't
protect them."
Duval said the omission of "work
ing" from the definition of major life
activity created a problem since many
with communicable diseases who
wanted to work would not be able to.
"(The decision) is another example
when North Carolina is again behind
the times in dealing with this disease."
Since the act is in direct conflict with
federal law in the exclusion of woik
ing, it shows that North Carolina is
"out of step," she said.
"This could be a case where fear
still overrides reason."
from page 1
sports, but that most UNC athletes
become regular citizens.
"When they leave the University,
they should be able to look back at the
University and say 'I'm very proud of
this, not because I played basketball or
football, but because of something I got
in terms of direction and in terms of an
education."
Other recommendations approved by
the council included:
B exit questionnaires or interviews
including coach evaluation whenever a
student-athlete leaves an academic
program, whether for graduation or for
other reasons;
B a proposal to the Southern Asso
ciation of Colleges and Schools to in
clude a review of graduation rates and
grades of student-athletes in their stud
ies of its members;
B housing student-athletes so that
they live among non-athletes;
B and greater access for non-athletes
to Koury Natatorium and access
for non-athletes to training tables for a
fee.
In his statement at the beginning of
the meeting, Hardin said the Atlantic
Coast Conference (ACC) was widely
respected by coaches in other confer
ences for athletic and academic quality.
Hardin said within the last nine day.s,
two schools had either called or wriitcn
him asking if the ACC might expan J in
the future so their institution could be
included.
"The letters said this question is made
out of the respect of the academic aspi
ration of the Atlantic Coast Conference
and the standard of athletics displayed,"
Hardin said.
11
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