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Posts Tagged ‘public accommodations discrimination’

Federal Court Awards Significant Damages to Individuals Denied Plastic Surgery Because of HIV Status 

Posted on: August 22nd, 2020 by Art Leonard No Comments

U.S. District Judge Analisa Torres (S.D.N.Y.) ruled on August 5 in United States v. Asare, 2020 U.S. Dist. LEXIS 139864, that three men who were denied plastic surgery by Dr. Emmanuel O. Asare because he believed them to be HIV-positive are entitled to the maximum statutory damages available in such a case under the Americans With Disabilities Act and the New York City Human Rights Law.  The court ordered that Dr. Asare to pay each of the men $125,000 and to pay a fine to the government of $15,000.  The total awarded is $390,000 in damages and penalties.  The court also ordered Dr. Asare to refrain from testing patients for HIV as a prerequisite for denying them services if they test positive.

The U.S. Department of Justice, which enforces Title III of the Americans with Disabilities Act (ADA), forbidding unjustified disability discrimination by public accommodations (including medical practices), filed this lawsuit in 2015, consolidating in one case complaints by three New York men, Mark Milano, J.G., and S.V.  Each of the men had gone to Dr. Asare seeking a procedure to remove unwanted body fat from their chests, a common procedure in which the doctor specialized.  Each of the men was ultimately rejected for the procedure by the doctor when he came to believe (incorrectly in the case of one of them) that they were HIV-positive.

According to the court’s findings after discovery and trial, Dr. Asare’s practice was to have blood drawn for testing some days in advance of the scheduled procedure, to determine whether the patient had any condition that would cause him to deny them treatment.  J.G. and S.V. both testified that they were not asked to consent to HIV testing and were not aware that their blood would be tested for this purpose.  Dr. Asare’s practice was to categorically refuse to perform plastic surgery on HIV-positive people in his clinic.

J.G. had been scheduled for the procedure, but received a call from Dr. Asare’s office asking him to come in to speak with the doctor, who informed him that he had tested positive for HIV and could not receive the procedure.  J.G. had known for years that he was HIV-positive but had not disclosed this on the doctor’s intake questionnaire because he had long kept this information secret from all but a handful of individuals.  He was on anti-retroviral therapy, with an undetectable viral load, and was otherwise healthy.  When he submitted to a blood draw for testing, he was not told that his blood would be tested for HIV.

S.V., a single father of two children who was planning to get married, decided to get the surgical procedure because he was dissatisfied by the appearance of his body.  Due to some sort of mix-up, he had actually reported for the procedure, was sedated and ready for it to be performed, when Dr. Asare informed him that the blood draw a few days earlier showed that he was HIV-positive and the procedure was off.   Asare called a car service for S.V. and sent him home in a sedated state!  When he arrived home, S.V., who was puzzled and shocked by the news, was so woozy that he had to crawl up the stairs to his bedroom and slept for hours.  Not believing that he could possibly be HIV-positive, he went to a hospital a few days later for testing and was informed that he was not HIV-positive.  Judge Torres’ opinion identifies J.G. and Milano as gay men, but does not so specify as to S.V., and does not mention the gender of the person he was planning to marry.

Mark Milano, who was working at the time for an HIV/AIDS organization, also knew that he was HIV-positive, but he did not indicate this on the intake questionnaire because he did not consider the information relevant.  However, in discussing the procedure with Dr. Asare, he asked out of curiosity whether the anti-viral medication he was taking could be responsible for the fatty deposits he wanted to have removed from his chest.  Asare replied that his office was not set up to provide surgery for HIV-positive people and refused to schedule the procedure.  Thus, with Milano things did not get to the stage of blood testing in advance of the procedure.

Under the ADA, a public accommodation, including a medical practice, may not deny services to somebody because of a disability, either actual or perceived, unless the disability renders the person unqualified for the service.  In this case, Judge Torres heard expert testimony that convinced her that being HIV-positive, which is considered a disability under the ADA, was not a disqualification for the procedure Dr. Asare was supposed to provide to these men.  She concluded that the doctor’s explanation that it would be dangerous to mix the anesthetic he used with the anti-retroviral medication that an HIV-positive person would be taking had no medical basis.

Furthermore, the ADA prohibits medical testing that would unjustifiably screen out qualified individuals from receiving a service.  The medical experts testified that all surgeons are supposed to observe “universal precautions” with patients to avoid exposure to any blood-borne infections, regardless of testing.  The emergence of “universal precautions” as the standard of care was actually sparked by the AIDS epidemic.  Before then, it was an open secret in the medical profession that many health care professionals were infected with hepatitis B, a much more easily transmitted infection through blood exposure than HIV, as a result of casual exposure to the blood of patients in health care facilities where universal precautions against such exposure were not enforced.

Thus, Dr. Asare was found to have violated the ADA (and, since his activities were taking place in New York City, the City’s Human Rights Law) in two respects: denying services to people with a disability, and using medical testing to screen out otherwise qualified people with a disability.

Some of these points had been established at earlier stages of the litigation when the focus was on Mr. Milano’s discrimination claim.  The government’s decision to add claims on behalf of J.G. and S.V. prolonged the case, because the issue of testing, which was not raised in Milano’s case, had to be addressed in connection with J.G. and S.V..  The court needed medical expert testimony so that Judge Torres could determine whether requiring the testing violated the statute, a crucial point in framing her remedial order in the case, and haggling about the qualification of an appropriate expert caused significant delay, which is one of the reasons a lawsuit originally filed in 2015 did not come to a final ruling by the trial court until five years later.

The amount of damages was determined by reference to the range of damages that are customarily awarded in Title III cases.  Here the focus was on the psychological and emotional impact on the three men from being denied Dr. Asare’s services under these circumstances.  Each of them credibly testified about severe emotional distress that they suffered, prompting the judge to award the highest amount of damages that she found to be available under the ranges of damages that have been awarded in ADA cases, adding consideration of the range of remedies available under the New York City law as well.

It is possible that Dr. Asare could get the damages cut down on appeal to the 2nd Circuit Court of Appeals, but Judge Torres devoted a substantial part of her opinion to describing the testimony about how each man was affected by being rejected for the procedure, and particularly the bizarre treatment of S.V., who was not HIV-positive and was actually prepped for surgery and sedated by mistake, then sent home in that sedated state without any supervision or follow-up from Dr. Asare’s office to see whether he was all right.  The court’s description of Dr. Asare’s conduct in this case should draw the attention of regulatory authorities on health care practice.

Lawyers from the U.S. Department of Justice prosecuted the case against Dr. Asare, but Mark Milano was allowed by Judge Torres to intervene as a co-plaintiff, and he was represented by Alison Ellis Frick and Matthew D. Brinckerhoff, of Emery Celli Brinckerhoff & Abady, LLP, New York, NY, as well as Armen Hagop Merjian, who has litigated many important HIV-related cases on behalf of Housing Works, Inc., a provider of housing to people living with HIV and an active advocate for their rights.

UK Supreme Court Rejects Appeal by Christian Hotel Keeper Who Denied Lodging to Same-Sex Civil Partners

Posted on: November 27th, 2013 by Art Leonard No Comments

The Supreme Court of the United Kingdom ruled today that a lower court, with the support of the U.K. Equality and Human Rights Commission (EHRC), correctly found that Mr. and Mrs. Bull, operators of a hotel, had violated UK non-discrimination law by refusing to honor a reservation for a room with a double bed made by a gay couple who are registered as civil partners, the UK equivalent status to marriage for same-sex partners now in effect.  Bull v. Hall, [2013] UKSC 73 (November 27, 2013).  Although the Court was divided 3-2 on some of the reasoning for the decision, it was unanimous as to the outcome, finding that the U.K.’s legitimate interest in protecting gay people from discrimination justified the burden this ruling placed on the religious liberty of the Bulls, who were claiming that they should be entitled to exclude unmarried persons from the accommodation in question.

The issue that divided the Court was whether this was a case of “direct discrimination” or “indirect discrimination.”  The equivalent terms in U.S. law would be “disparate treatment” or “disparate impact.”  As in US law, this makes a difference for purposes of analyzing the case, since disparate treatment regarding public accommodations would almost always be unlawful, which maintaining a policy that was facially neutral as to the characteristic in question but had a disparate impact against persons who have that characteristic could be defended by showing a legitimate justification for using that characteristic.

In this case, the Bulls posted on the website for their hotel in Cornwall the statement: “Here at Chymorvah we have few rules, but please note, that out of a deep regard for marriage we prefer to let double accommodation to heterosexual married couples only — thank you!”  Mr. Preddy, who phoned to make the reservation of a double room for himself and his civil partner, Mr. Hall, was unaware of this statement.  Mrs. Bull, who answered the phone when Preddy called, was out of sorts and did not make any inquiry about whether Preddy was married to the person who would be sharing the room with him.  Preddy did not identify himself as part of a same-sex couple, having no apparent reason to do so.  When Preddy and Hall showed up on the date of the reservation, they were met by Mr. Quinn, a cousin of the Bulls who also worked at the hotel, and he “explained that we were Christians and did not believe in civil partnerships and that marriage is between a man and a woman and therefore we could not honor their booking.”  In the excitement of the moment, Quinn did not think to offer them a room with two single beds, and Preddy and Hall, naturally upset at this turn of the events, quickly left the hotel and found alternative accommodations.  The Bulls re-credited the deposit they had paid to their account.

Preddy and Hall filed a complaint after having sent a letter to the Bulls charging them with discrimination. The Bulls responded that they had not discriminated because of sexual orientation, that the regulations must take account of their religious beliefs.  They also offered, as a proposed settlement, to reimburse Preddy and Hall for any additional expense they incurred by getting alternate lodgings plus “a modest sum for the inconvenience,” but this proffer was rejected and plaintiffs pushed their complaint forward, winning before the Commission and the lower courts.  The case generate considerable press attention worldwide.  The Bulls’ appeal was pending as the U.K. Parliament voted to  open up marriage to same-sex couples, an action that will not take effect until sometime in 2014.  The case is not mooted as a question of law, of course, because there may remain resistant hoteliers who will have religious objections to providing marital accommodations to same-sex couples, as exemplified by the Bull’s use of “heterosexual” in their posted policy.

Deputy President Lady Hale wrote the lead opinion for the Court, in which she explained that this was direct discrimination because, in her view, the characteristic that ultimately served to disqualify the plaintiffs from getting the desired room was their sexual orientation.  She observed that under current British law, married different-sex couples and civilly partnered same-sex couples are to be treated as equal for all purposes.  She rejected the Bull’s argument that the grounds of denial of service were that plaintiffs were not married, since in U.K. law they were supposed to be treated as married, thus the difference between them and a married couple would turn on their sexual orientation.  That being the case, the denial of service would be unlawful unless some supervening authority protecting religious belief obtained.

English law does protect religious liberty through the country’s participation in the European Convention on Human Rights as expressed in the UK Human Rights Act, which protects freedom of religious belief and practice.  However, that protection is not absolute.  Just as in the U.S., where 1st Amendment protection for religious practice and belief is not absolute, European law makes the protection subject to “such limitations as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others.”  The Court found that the ban on sexual orientation discrimination qualified as a limitation prescribed by law that is so necessary.

Wrote Lady Hale, “Sexual orientation is a core component of a person’s identity which requires fulfillment through relationships with others of the same orientation.”  She then quoted this eloquent passage by South Africa Constitutional Court Justice Albie Sachs from a 1999 gay rights case:  “While recognizing the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self.  It acknowledges that people live in their bodies, their communities, their cultures, their places and their times.  The expression of sexuality requires a partner, real or imagined.”  Lady Hale continued: “Heterosexuals have known this about themselves and been able to fulfill themselves in this way throughout history.  Homosexuals have also known this about themselves but were long denied the possibility of fulfilling themselves through relationships with others.  This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognized.  Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world.  It is no doubt for that reason that Strasbourg requires ‘very weighty reasons’ to justify discrimination on grounds of sexual orientation.  It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.”  The reference to “Strasbourg” is to the European Court of Human Rights.

Lords Kerr and Toulson agreed, in brief separate opinions, with Lord Hale’s analysis of the case.  Lords Neuberger and Hughes, while agreeing with the ultimate decision, would have found that this was a case of indirect discrimination, but that the Bulls had not satisfied the requirement to justify such discrimination by reference to a non-discriminatory reason for their rule.

In her opinion, Lady Hale considered whether, if this were considered indirect discrimination, the Bulls had shown that “it can reasonably be justified by reference to matters other than [the plaintiffs’] sexual orientation,” and found that they had failed to do so.  Their argument was that they could justify their policy “by reference to a deeply held belief that sexual intercourse outside marriage is sinful.”  But, asked Lady Hale, “Can that belief be a ‘matter other than [their] sexual orientation’?  I am prepared to accept that it can, not least because it covers all kinds of unmarried couple.  But it would be hard to find that a belief that sexual intercourse between civil partners was sinful was a ‘matter other than [their] sexual orientation’, because by definition such sexual intercourse has to be between persons of the same sex.  Thus, even in the wording of the regulation itself, it is difficult to see how discriminating in this was against a same sex couple in a civil partnership could ever be justified.  But it goes further than that.  Parliament has created the institution of civil partnership in order that same sex partners can enjoy the same legal rights as partners of the opposite sex.  They are also worthy of the same respect and esteem.  The rights and obligations entailed in both marriage and civil partnership exist both to recognize and to encourage stable, committed, long-term relationships.  It is very much in the public interest that intimate relationships be conducted in this way.  Now that, at long last, same sex couples can enter into a mutual commitment which is the equivalent of marriage, the suppliers of goods, facilities and services should treat them in the same way.”

But, more importantly, Lady Hale noted that allowing the defense proposed by the Bulls would “create a class of people who were exempt from the discrimination legislation.  We do not normally allow people to behave in a way which the law prohibits because they disagree with the law,” she continued.  “But to allow discrimination against persons of homosexual orientation (or indeed of heterosexual orientation) because of a belief, however sincerely held, and however based on the biblical text, would be to do just that.”  This would, in her view, undermine the purpose of Parliament in outlawing sexual orientation discrimination.  She noted that Parliament had adopted “a carefully tailored exemption for religious organizations and ministers of religion from the prohibition of both direct and indirect discrimination on grounds of sexual orientation. This strongly suggests that the purpose of the Regulations was to go no further than this in catering for religious objections.”  She pointed out that the Bulls were free to advocate their point of view and to exhibit it by the way they decorate their premises and provide bibles and gospel tracts in the rooms.  They could also “continue to deny double-bedded rooms to same sex and unmarried couples, provided that they also deny them to married couples”!

She also noted that the wording of the Equality Act 2010, which went into effect after the events in this case took place, differs on the issue of justification for indirect discrimination, providing that “a provision, criterion or practice is indirectly discriminatory if the person who applies it ‘cannot show it to be a proportionate means of achieving a legitimate aim.”  But, she concludes, “it is unlikely in this context to lead to a different result.”

The other judges who concurred in the result also stated agreement with Lady Hale’s analysis of the indirect discrimination theory and its application to this case.