MAP Legal Services provides advice, direct representation and referrals to a network of volunteer attorneys for HIV-related legal matters, including estate planning, family law, discrimination, social security, immigration and employment-related concerns. Participants must be HIV-positive, meet financial eligibility requirements and complete our legal intake process. MAP also provides brief consultation to HIV service providers and family members on HIV-specific legal topics.

We hope you find this update informative and useful! If you have any comments or suggestions, please contact Caroline Palmer, Staff Attorney, at cpalmer@mnaidsproject.org or (612) 373-9174. If you do not wish to receive future editions of MAP Legal News, or if you would like your name added to the list, please contact Dan Kelly, Legal Services Assistant, at dkelly@mnaidsproject.org or (612) 373-2426.

In this issue:

• Updates on HIV-related Case Law
• Legal Issue of the Month: Domestic Violence and Harassment
• Spotlight on MAP Legal Services Volunteer Jeff Dean

Updates on HIV-related Case Law

We have no recent cases from the United States Supreme Court, Minnesota, the Eighth Circuit or Minnesota District to report. Here are some interesting cases from around the country:

Los Angeles Times, January 5, 2004:
Just days before gymnast Matthew Cusick was to begin performing on the Russian high bar in the Las Vegas production of Cirque du Soleil's Mystere, he was fired for being HIV-positive. He disclosed his condition voluntarily to Cirque a year before when he began training with the Canadian troupe. He was cleared by the company's doctors as a "healthy athlete" but Cirque officials have since claimed he could "infect other artists and crew members and the audience and that [he] was a hazard in the workplace." Cusick took his story public and during the Cirque's recent seven-week run in San Francisco the New York-based Lambda Legal helped organize nightly demonstrations. The San Francisco Human Rights Commission took the unusual step of filing its own complaint "alleging that Cirque was violating municipal law by discriminating against a qualified HIV-positive employee." The Commission has jurisdiction over Cirque because it performs on land leased from the Port of San Francisco. After an investigation the Commission could fine Cirque and bar it from performing on public land for three years. Cirque's response to the complaint infuriated Cusick's supporters because it claimed that jobs "which would be suited to an individual with HIV . . . include dishwashers, dining room attendants, prep cooks, box office staff" among other low-level positions. Lambda Legal filed a federal complaint with the Equal Employment Opportunity Commission last July and the investigation should conclude this month. Cirque's Director of Communications Renee-Claude Menard claims the company does not discriminate: "What we evaluate as being the riskiest acts at Cirque for injuries and collisions are the aerial acts, especially a catcher position. We believe that 20 years of experience in this area are enough for us to determine risk." Cusick's supporters, including several internationally known athletes, AIDS experts and advocacy organizations, disagree. There has been no known case of transmission via a sports injury and routine precautions can prevent infection. According to Lambda Legal AIDS Project Director Hayley Gorenberg, sports medicine policies of the National Collegiate Athletic Association, the American Academy of Pediatrics, the United States Olympic Committee, and the World Health Organization "all come to the same conclusion: There is no reason, medical or scientific, to exclude HIV-positive athletes from contact sports, and there is no reason to mandate testing." Cirque offered Cusick a coaching position but he turned it down. More protests are planned at upcoming Cirque shows in Costa Mesa, Atlanta and New York. For more information and to send a message to Cirque du Soleil visit http://www.lambdalegal.org/cgi-bin/iowa/index.html.

Gajda v. Manhattan and Bronx Surface Transit Operating Authority, No. 03 Civ. 1624 (JSR), 2003 WL 22939123 (S.D.N.Y. 12/12/2003):
A judge in the Southern District of New York dismissed an Americans with Disabilities (ADA) suit in which Douglas Gajda, a Manhattan bus driver, claimed he was discriminated against by his transit agency employer when he revealed his HIV status. Gajda tested positive in 1996 but did not inform his employer until 2002 when he failed to disclose his status during a routine physical exam required for his recertification. After the exam Gajda requested intermittent leave under the Family and Medical Leave Act and revealed his status. He was asked to report to the transit agency's Medical Assessment Center where he informed the doctor about his health.
The doctor withdrew Gajda's work certification and placed him on restricted status with pay until he provided more information on his condition. Gajda ignored six requests for information; as a result his work status and pay were revoked completely. Gajda later submitted the required information, was recertified and returned to work. In his lawsuit Gajda argued that the transit agency had violated the ADA prohibition on medical examinations or inquiries unless consistent with business necessity and, further, should not have uncertified him and revoked his pay but rather should have placed him in another job as a reasonable accommodation. The judge agreed with the employer's argument that the requests were in line with its "broad discretion to determine the medical qualifications and standards necessary to operate its vehicles . . . In making the assessment, the Transit Authority would have been, if anything, negligent to have simply relied on plaintiff's doctors ipse dixit (Gejda's verbal assurances) that Gajda was asymptomatic and therefore able to operate a vehicle safely." The judge also agreed that the revocation of employment certification was appropriate because of Gajda's refusal to supply medical records "necessary for assessing his accommodation."

Commonwealth v. Walker, No. 366 MDA 2003, 2003 WL 22700780 (Pa. Super Ct., 11/17/2003):
Maurice Walker was taken into custody for a parole violation and while he was being escorted into the York County Prison an incident occurred between Walker and the law enforcement officers accompanying him. While waiting for a gate to open Walker began digging his fingernails into the right hand of one of the officers and said "I have open cuts on my hands. Life is short. I am taking you with me. You better watch your back." The officers were aware of Walker's HIV status. The officer tested negative for HIV and Hepatitis but Walker was charged with, and convicted of, making terroristic threats. Walker argued that the threat was merely a spur-of-the-moment statement and that the prosecution had not met the burden of demonstrating that the statement indicated true criminal intent. The court concluded that the "jury could have properly inferred that Walker was threatening to kill Webb. The likelihood of HIV infection resulting from scratches was immaterial and murder is obviously a crime of violence. The statements 'I have open cuts on my hands,' and 'Life is short,' gave rise to a proper inference of specifically intending to cause terror from fear of HIV infection."

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Legal Issue of the Month: Domestic Violence and Harassment

Several clients in the MAP Legal Program have experienced domestic abuse or harassment related to their HIV status. For example, a client in an abusive relationship was threatened when her spouse called her derogatory names because of her condition. A former employer of another client informed several people about the client's HIV status and only stopped after a harassment restraining order was obtained. Too often, HIV status, if known, is appropriated by an individual bent on finding a justification for abuse or is revealed to others as a form of retaliation. The result is tremendous stress, fear, inconvenience, and even danger for our clients.

According to Chapter 518B of the Minnesota Statutes, domestic abuse includes "physical harm, bodily injury or assault," "the infliction of fear of imminent physical harm, bodily injury or assault, or "terroristic threats." The abuse is committed against "family or household members" which includes "spouses and former spouses, parents and children, persons related by blood, persons who are currently residing together or who have resided together in the past, persons who have a child in common, regardless of whether they have been married or have lived together at any time, and persons involved in a significant romantic or sexual relationship." Harrasment, as defined by Minn. Stat. §609.748 includes "a single incident or physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target." A client can obtain either an Order for Protection (OFP) or Harassment Restraining Order (HRO) depending on the circumstances of the case and the relationship between the parties.

While an OFP or HRO may help put a halt to threatening or abusive behavior, there are several factors to consider when moving forward in these cases. The first and foremost concern, of course, is the client's safety, and if there is any possibility that the client is in harm's way all attempts should be made to help the client find secure shelter and services. Domestic abuse shelters can assist clients in completing the necessary forms and many county court systems provide assistance as well. The client will need to consider whether she wishes to disclose her HIV status in the petition and during a hearing, if one occurs, and should also consider how to respond if the other party makes an issue of her status during the court proceeding. In general, judicial officers and court clerks are sensitive to this information. Still, there may be times when an attorney will be called upon to educate the court about HIV and so it is important to be well-informed about transmission routes and the problem of stigma and discrimination if the need arises, both to further a discussion and advocate for a client's rights. The MAP Legal Program is willing to provide support to attorneys representing clients with HIV in OFP and HRO cases.

Sometimes OFP and HRO proceedings require an evidentiary hearing and a client should ensure that she has sufficient evidence, such as medical documentation of any harm resulting from the abuse, eyewitness testimony, or other information to help her case. Domestic abuse and harassment are stressful enough for an individual or family; adding a court proceeding can be even more difficult. Always ensure that your client has an appropriate support system such as a domestic abuse advocate, case manager, and family members and friends who can provide assistance through what is always a very trying time. Because additional stress can have a negative impact on a client's health and well being it is also important that the client maintain medical appointments and talk about her situation with her medical providers as a further means of accessing vital support.

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Spotlight on MAP Legal Services Volunteer Jeff Dean

If you ever find yourself in a jam with the law, MAP volunteer and criminal defense lawyer Jeff Dean may be the right guy for you. Jeff Dean's firm handles exclusively criminal defense cases with a focus on sex offenses and DWI. Dean received his undergraduate degree from the University of Minnesota and his law degree from the Hamline University School of law. Dean gained experience working for the Hennepin County Public Defender and for private criminal defense attorneys while in school. He also participated in a criminal defense clinic at Hamline where he actually tried criminal cases as a law student. Dean's successful track record shows that 90 percent of the cases he takes to litigation result in acquittals or dismissals. For more information on Dean and his firm, contact him at (612) 305-4360.

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Last Updated: Tuesday, April 3, 2007
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