153 Misc. 2d 426 | N.Y. Sup. Ct. | 1992
OPINION OF THE COURT
In this employment discrimination case, defendants move, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action.
I
BACKGROUND
The complaint contains four causes of action. The following facts are alleged. Plaintiff is gay but it is not alleged that he had contracted acquired immune deficiency syndrome (AIDS) or has tested positive for the human immuno-deficiency virus (HIV). He was employed as a senior loan officer by defendant Bank of New York Mortgage Company (Mortgage Company). The complaint also names as a defendant ARCS Mortgage, Inc. (ARCS), which does business in New York as Mortgage Company. Defendant Bank of New York Company, Inc. (the Bank) owns all the shares of ARCS. The individual defendants are employees of Mortgage Company.
Defendant ARCS allegedly discourages employment of indi
On November 2, 1990, McEnerney, a top-level manager of Mortgage Company, formally fired plaintiff, allegedly for insubordination. Despite demands, plaintiff did not receive notification and forms to effect continuation of his health benefits (which presumably would have been funded by his employer) until it was too late. Plaintiff has had to obtain insurance on his own. Plaintiff claims that he was terminated because of discrimination and due to his perceived handicap of having AIDS or being in a high-risk group for contracting AIDS, in violation of the Human Rights Law (Executive Law § 296 [1] [a]). (First cause of action.)
Plaintiff alleges that he had a sexual relationship with defendant Vaughn and that Vaughn failed to tell him until afterwards that Vaughn had been HIV-positive for three years, which Mortgage Company is alleged to have known. Mortgage Company undertook its campaign to terminate plaintiff before he developed AIDS in order to save money. Plaintiff claims that this amounts to intentional infliction of emotional distress. (Second cause of action.)
Defendant Feinstein allegedly defamed plaintiff in a letter to the personnel office of Mortgage Company. Finally, Mortgage Company and the Bank are alleged to be vicariously responsible for the acts of the individual defendants. (Third and fourth causes of action.)
II
THE ISSUES
Plaintiff was an at-will employee. As a result, absent some statutory protection, he is barred from suing, directly or indirectly, for wrongful discharge, as he himself recognizes. (Murphy v American Home Prods. Corp., 58 NY2d 293 [1983].) The centerpiece of plaintiff’s case thus is his claim under the Human Rights Law. However unjust it may be, section 296 (1) (a) does not prohibit discrimination against homosexuals. (See, Under 21 v City of New York, 65 NY2d 344, 357 [1985]; 420 E. 80th Co. v Chin, 115 Misc 2d 195 [App Term, 1st Dept 1982],
The complaint in part is based upon alleged discrimination against plaintiff because he is gay. Plaintiff does not try to salvage this portion of the complaint as a ground for the Human Rights Law claim. Plaintiff seeks instead to convince this court that protection is accorded him by the disability portion of section 296 (1) (a). Although there is no statute specifically prohibiting discrimination in employment against those who have AIDS, the disability portion of section 296 (1) (a) does, as plaintiff contends, embrace this plague. (Cf., Rehabilitation Act of 1973, 29 USC § 701 et seq.; see, 3A Larson and Larson, Employment Discrimination § 108.00 et seq. [1991].) It is not a valid argument — and defendants here do not urge it— to say that AIDS should not be covered because it appears only amongst gay men and the Legislature has decided against banning discrimination because of sexual orientation. Clearly, AIDS is a disability, a medical impairment, and a ghastly one. (See, Human Rights Law § 292 [21].) Anyone stricken by the disease is entitled to the protection of the disability portion of section 296 (1) (a). (See, Bell Rests. Ltd. Partnership v City of New York Commn. on Human Rights, NYLJ, Nov. 19, 1990, at 25, col 1 [Sup Ct, Greenfield, J.]; Matter of Barton v New York City Commn. on Human Rights, 140 Misc 2d 554, 560 [Sup Ct 1988], mod 151 AD2d 258 [1st Dept 1989]; Poff v Caro, 228 NJ Super 370, 549 A2d 900 [1987].)
Section 296 (1) (a) applies not only to actual disabilities, but to perceived ones as well, whether the perceptions are justified or not. Employers and others are prohibited from engaging in discriminatory conduct against those who are merely thought to have AIDS. This principle, which follows the approach of the Vocational Rehabilitation Act, is the result of the sensible and humane notion that we are no more justified in victimizing individuals on the grounds of suspicions of disability than because we have knowledge of the real thing. (See, School Bd. v Arline, 480 US 273 [1987]; Bell Rests. Ltd. Partnership v City of New York Commn. on Human Rights, supra; see also,
The harder question presented by this motion, and one concerning which precedent is sparse indeed, arises when we consider those who do not have AIDS but have tested positive for HIV. It can be argued that asymptomatic HIV infection should not be considered a disability. (See, School Bd. v Arline, supra, 480 US, at 282, n 7.) I disagree. Asymptomatic HIV infection is a diagnosable medical abnormality, even though symptoms are not apparent, and one that carries with it future difficulties of the utmost gravity. This condition is a "medical impairment resulting from * * * physiological * * * conditions which * * * is demonstrable by medically accepted * * * diagnostic techniques” and thus satisfies the statutory definition. (Human Rights Law § 292 [21]; see, State Div. of Human Rights v Xerox Corp., 65 NY2d 213, 219 [1985] [The statute covers "merely diagnosable medical anomalies which impair bodily integrity and thus may lead to more serious conditions in the future * * * [A]n employer cannot deny employment simply because the condition has been detected before it has actually begun to produce deleterious effects”].) It would be if not bizarre, certainly peculiar to suggest that the Legislature had chosen to tolerate firings and other punitive action directed against those who test positive because these persons had not yet suffered the full horror of this scourge. (See, Matter of District 27 Community School Bd. v Board of Educ., 130 Misc 2d 398 [Sup Ct 1986]; Note, Asymptomatic Infection with the AIDS Virus as a Handicap under the Rehabilitation Act of 1973, 88 Colum L Rev 563 [1988]; Note, AIDS and Employment Discrimination: Should AIDS Be Considered a Handicap?, 33 Wayne L Rev 1095 [1987].)
The plaintiff does not have AIDS and thus this case does not involve that disease as an actual disability. Plaintiff’s pleading and his papers on this motion are neither as clear nor as precise as one might wish. Although imperfectly, plaintiff appears to be alleging that he was discriminated against because of the perception that he has AIDS. This is a valid basis for a claim, although it remains to be seen whether plaintiff indeed can prove this claim.
Defendants argue that plaintiff seeks to recover on the ground that he is disabled merely because he is gay, but defendants misstate the case. To be gay per se is not a medical disability (though in our society, sadly, it certainly remains a social one). Being gay alone is not a reasonable ground for a perception of disability since homosexuality does not carry with it a sentence of infection. To construe mere membership in a group at risk as equivalent to a perceived disability would be to import into the statute the ban on sexual orientation that has to date been conspicuously omitted. (But see, Poff v Caro, supra, 228 NJ Super, at 377, 549 A2d, at 903 [New Jersey statute protects those "discriminated against because they are perceived to * * * be potential victims of AIDS”].) Of course, if an employer irrationally believed that a gay employee was, because of his sexual preference alone, HIV-positive, the statute would protect the employee because it shields employees from the consequence of irrational perceptions.
Plaintiff here alleges more than knowledge or perception that he is gay. Plaintiff claims that Mortgage Company knew that the defendant Vaughn had tested positive for AIDS, that plaintiff is gay and that plaintiff and Vaughn had had sexual relations.
The cause of action for intentional infliction of emotional distress as to all parties save Vaughn must be dismissed. The conduct alleged is certainly reprehensible and hard-hearted but that is not the test. The claim, which is founded on treatment intended to get rid of plaintiff, is merely a device to state in other terms a cause of action for wrongful discharge. The courts of this State have been extremely strict on this score. (See, Leibowitz v Bank Leumi Trust Co., 152 AD2d 169 [2d Dept 1989]; see also, Buffolino v Long Is. Sav. Bank, 126 AD2d 508 [2d Dept 1987]; Lapidus v New York City Ch. of N. Y. State Assn. for Retarded Children, 118 AD2d 122 [1st Dept 1986]; Belanoff v Grayson, 98 AD2d 353 [1st Dept 1984]; but see, Kaminski v United Parcel Serv., 120 AD2d 409 [1st Dept 1986].)
The nature of plaintiff’s claim of intentional infliction of emotional distress against Vaughn individually is not explained in plaintiff’s papers, where indeed he is almost treated as an incidental player in this unfortunate drama. Obviously Vaughn, himself allegedly HIV-positive, would presumably have little interest in discriminating against the plaintiff and he is not alleged to have done so. The only alleged wrong Vaughn appears to have committed is engaging in sexual relations with plaintiff without advising plaintiff of his infection.
In my view, a cause of action may be stated against an individual who transmits HIV to another individual. Battery is a possible foundation for a cause of action but a problematic one in view of the short Statute of Limitations and the intent
The unique aspect here, in contrast with cases I have cited, is that the plaintiff does not claim to be afflicted with a disease, either with full-blown AIDS or seropositivity for HIV. A cause of action such as that asserted here would, in my view, be valid in instances in which the plaintiff has been infected with HIV and full-blown AIDS remains to develop.
The defamation cause of action is defective since it fails to set forth the particular libelous words allegedly used by defendant Feinstein. (CPLR 3016 [a].) If a need for discovery were a valid excuse, this requirement would be rendered nugatory. Furthermore, at least defendants McEnerney and Vaughn cannot be liable for the alleged defamation since it is not asserted that they had anything to do with the offending communication, which is also qualifiedly privileged.
In sum, the first cause of action based upon termination for plaintiff’s "disability” is sustained while the second, third and fourth causes of action are dismissed in concert with the caveat (i.e., reinstatement) set out above.
. Defendants argue that the Legislature’s failure to enact a recently proposed bill to prohibit discrimination on the basis of HIV status proves that such discrimination is not now illegal. Defendants ignore the statements in the memorandum in support of legislation (at 2) that current law is only unclear and that legislation is needed to resolve "the uncertainties of judicial interpretations.” The fact that specific legislation was enacted to address sickle cell anemia, Tay-sachs disease and Cooley’s anemia can be similarly explained.
. The last fact is not asserted in the complaint in so many words but seems implicit in what plaintiff there alleges. Other facts helpful to plaintiff’s position — e.g., that Mortgage Company allegedly knew that Vaughn’s lover was dying of AIDS — cannot be considered since they are not contained in the complaint or in plaintiff’s opposing affidavit, but only in a memorandum of law.
. This cause of action is valid against Mortgage Company, but not Vaughn; the liability of defendants Feinstein and McEnerney depends upon their power over personnel decisions. (Patrowich v Chemical Bank, 63 NY2d 541 [1984].) The employer is liable under section 296 (1) (a) only if it approved or acquiesced in the discriminatory conduct. (Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684 [1985].) This should present a question of fact.
. Defenses of consent, assumption of the risk and comparative negligence have public policy implications.
. The last of these theories of course is preferable from the plaintiiFs point of view since it is not necessary to establish intent, which in its narrowest sense is unlikely to be present in many cases of this nature.
. Defendant Vaughn also moves pursuant to CPLR 3211 (a) (8), but that issue need not be addressed.