1998 Case Table - Covers January through June issues of Law Notes Compiled by Leo L. Wong, NYLS '2000. A Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997), vacated and remanded sub nom. Bragdon v. Abbott, 1998 WL 332958 (S.Ct., June 25) (Cert. questions: Is HIV-infection a disability per se and is placing the burden of proof on the plaintiff to prove disabling effects in order to qualify for protection against discrimination constitutional?). 27 [No.97-156, appeal from 107 F.3d 934 (1st Cir.) (Lower court ruled that dentist violated ADA by refusing to perform routine dental services for an HIV+ woman in his office-- cert. on 3 ?þs--whether reproduction is major life activity, asymptomatic HIV+ people are disabled per se, and whether private health care provider, based on his professional judgment, that he should not render care to an HIV+ person merits deference by federal courts under the ADA; Sup.Ct. held HIV+ woman covered by ADA, but remanded issue of whether she presents direct threat to dentist). 62 Adamczyk v. City of Buffalo, 1998 WL 89342 (W.D.N.Y. Feb. 23, 1998) (dismissed 1995 HIV disclosure lawsuit because he failed to file a Notice of Claims before he filed his state claims). 60 Air Transport Assocþn of America v. City and Council of San Francisco, No. C97-01763 (N.D.Cal. Feb.27, 1998) (see BNA Daily Labor Report No. 44, 3/6/98, p. A-5) (case challenging San Franciscoþs ordinance requiring city contractors to extend domestic partnership benefits). 56; 1998 U.S.Dist. LEXIS 4837 (N.D.Cal.). 66 Amsterdam Video Inc. v. City of New York, 91 N.Y.2d 382 (1998) (zoning regulations forcing sex-related businesses to shut down or relocate despite state and federal court decisions finding them constitutionally valid). 76 Arnold v. United Parcel Service, 136 F.3d 854 (1st Cir. 1998) (person with diabetes is covered under the ADA even though his condition is medically controllable). 82 B Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (Hawaii Constitution does not give rise to fundamental right of persons of the same sex to marry, and statute restricting marital relation to male or female establishes sex-based classification which is subject to "strict scrutiny" test in equal protection challenge). 49 Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996) (Hawaii's prohibition against same-sex marriages violates state constitution's equal protection clause). 1 Baker et al. v. State of Vermont, No. S1009-97 Cnc (Crittendon Super. Ct. December 19, 1997) (dismissing law suit filed by same-sex couples requesting a marriage license). 1 Bell v. Wells Fargo Bank, N.A., 73 Cal.Rptr.2d 354 (Cal. Ct. App. Apr. 9, 1998) (reversed summary judgment for employer on the theory that the employeeþs disability claim allegations do not estop him from making arguably contradictory claims in a subsequent discrimination suit). 80 Bennett v. Yoshina, 140 F.3d 1218 (9th Cir.1998) (State of Hawaii is not required to re-run its referendum on whether to have a constitutional convention concerning a same-sex marriage question).74 Bishop v. Mt. Sinai Medical Center, 669 N.Y.S.2d 530 (1st Depþt 1998) (AIDS phobia plaintiff must allege actual exposure to HIV in order to maintain an action for emotional distress). 61 Blackburn v. Blue Mountain Women's Clinic, 951 P.2d 1 (Mont.1997) (remanded negligence claim against clinic counselor who gave misinformation about HIV to client to lower court). 10 B.L.V.B., In re, 160 Vt. 368 (Vt. 1993) (upholding second-parent adoptions). 2 Bonneau and Bonneau, In re Marriage of, 691 N.E.2d 123 (Ill. App. 2d 1998) (husband was not required to disclose HIV status in divorce proceeding). 43 Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 (4th Cir. 1998) (first amendment rights were not violated when teacher was penalized for the selection of a controversial play for performance). 34 Bowers v. Hardwick, 478 U.S. 186 (1986) (GA sodomy law does not violate the Constitutionþs privacy guarantees). 37, 68 Bragdon v. Abbott, 1998 WL 332958 (S.Ct., June 25) (HIV+ woman is covered by ADA, but further consideration required of question whether she presents direct threat to dentist). Braschi v. Stahl Associates, 74 N.Y.2d 201 (1989) (domestic partner's claim to successorship rights is valid under New York state rent control laws). 22 Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Feb. 27, 1998) (marital partner of the same sex is a fundamental right under Alaska State Constitution). 49 Breese v. Smith, 501 P.2d 159 (Alaska 1972) (ability to control oneþs appearance is a fundamental right, i.e., hair length). 49 Brennan v. King,139 F.3d 258 (1st Cir. 1998) (HIV+ professorþs denial of tenure case was not preempted by a contractual grievance procedure). 54 Brennan v. Metropolitan Opera Association, Inc., 1998 WL 193204 (S.D.N.Y. Apr. 22, 1998) (stringent factual standards are needed to establish a case alleging discrimination based on age, sex, and sexual orientation).72 Brzoska v. Olson, 668 A.2d 1355 (Del. 1995) (emotional distress claims involving HIV exposure). 44 Buzzanaca, Marriage of, 61 Cal.App.4th 1410, 72 Cal.Rptr.2d 280 (Cal. Ct. App. 1998) (parental rights and responsibilities of þnon- biologicalþ parents are recognized by the court) (review denied June 10, 1998). 57 C Carparts Dist. Ctr., Inc. v. Automotive Wholesalerþs Assþn of New England, Inc., 987 F.Supp. 77 (D.N.H. 1997) ( insurer is an insuredþs employer for purposes of the ADA and its protections). 42 Chaplinsky v. New Hampshire, 351 U.S. 568 (1942) (articulating a two prong test for protected speech). 18 City of Topeka v. Movsovitz, No. 77,372 (not designated for publication) (posted at http://members.aol.com/kswebsite/appeals.html) (Apr. 24, 1998) (ruled that Kansas sodomy law is constitutional, rejecting federal and state constitutional arguments). 68 Cobo v. Raba, 481 S.E.2d 101 (N.C. App. 1997), affþd, 495 S.E.2d 362 (N.C. 1998) (lower court erred in not instructing jury on potential contributory negligence by a PWA in his malpractice suit against his psychiatrist). 45 Coddington v. Lisk, 671 N.Y.S.2d 826 (3d Depþt 1998) (medical records are discoverable in a personal injury law suit even though records might reveal the result of an HIV test). 82 Collins v. Down River Specialties, Inc., 1998 WL 166174 (Ohio Ct. App. Apr.9,1998) ( gay bar is not liable on a negligence theory for the handgun murder of a gay man and incidental shooting of another man on premises). 70 Collins v. Faith School District, 574 N.W.2d 889 (S.D. 1998) (reinstated an elementary school teacher terminated after describing homosexual sexual activities to his students). 53 Connick v. Myers, 461 U.S. 138 (1983) (discharge of staff attorney in the New Orleans Law Department for circulating a petition on employment policies is valid). 35 Crawford v. City of Chicago, No. 97-CH-5674 (Cook County Cir.Ct. Feb 10, 1998) (would not grant a restraining order against Chicagoþs domestic partnership ordinance). 36 Curran v. Mount Diable Council of the Boy Scouts of America, 952 P.2d 218 (Cal. 1998) (BSA is not a business establishment within the meaning of the Unruh Civil Rights Act). 51 D Dale v. Boy Scouts of America, 706 A.2d 270 (N.J. Super. Ct. App. Div. 1998) (Boy Scouts of America violated the anti-discrimination statute when it expelled a member for being gay). 50 DeLong v. DeLong, 1998 WL 15536 (Mo. App. W.D. Jan. 20, 1998) (courts should no longer presume that it is not in the best interest of children to have a gay custodial parent) (Mo. W.D. 52726) rehearing and/or transfer denied (Mar. 3, 1998), cause order transferred to Mo.S.Ct. (Apr. 4, 1998). 17 DeShaney v. Winnebago County Depþt of Soc. Serv., 489 U.S. 189 (1989) (defined state role in creation of danger and a subsequent duty to protect). 78 D.J.L. v. Armour Pharmaceutical Co., 704 A.2d 104 (N.J. Super. Ct. 1997) (rejecting court challenge to extended time for hemophiliacs to sue). 13 D.W.W., Ex Parte (In Re: R.W. v. D.W.W.), 1998 WL 81615 (Ala. Feb. 27, 1998) (reversed an appellate decision which would have removed restrictions on visitation rights for R.W., a non-custodial mother engaged in a four-year lesbian relationship). 52 Dignity Viatical Settlement Partners v. Cedalion Systems, Inc., 1998 WL 199652 (W.D.N.C. Apr. 20, 1998) (ruled against a viatical settlement company in its attempt to claim full payment of benefits on a life insurance policy it purchased from a PWA shortly before he died). 81 Doe v. Alpha Therapeutics, St. Louis Cir. Ct., Dec 17, 1997 (3 hemophiliacs infected with HIV-tainted blood circa 1982 sued manufacturer of clotting agent, not decided). 13 Doe v. Attorney General, 686 N.E.2d 1007 (Mass. 1997) (state's sex offender notification act violates state constitutional due process rights). 6 Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997) (same-sex harassment case remanded for consideration in light of Oncale). 50 Doe v. Doe, 1998 WL 155696 (Conn. Apr. 7,1998) (a woman did have standing to seek custody of the 14-year old girl she had raised from birth even though she was neither biologically or legally related--she never sought legal adoption after the child was surrendered by surrogate mother). 76 Doe, Estate of John v. Paul Revere Insurance Group, 948 P.2d 1103 (Haw. 1997) (insurance company is liable for benefits under a policy issued to an HIV+ dentist). 8 Doe v. Methodist Hospital, 690 N.E.2d 681 (Ind. 1998) (a person who revealed co-worker's HIV status was not liable for invasion of privacy). 25 Doe v. Noe, 690 N.E.2d 1012 (Ill. App. Ct. 1997) (patient who learned that her surgeon was HIV+ can sue for emotional distress). 10 E.B. v. Verniero, 120 F.3d 1263 (2nd Cir. 1997), cert. denied, 118 S.Ct. 1084 (1998) (upheld laws requiring convicted sex offenders to register with authorities after their discharge from prison, and under certain circumstances, authorizing various types of notification to the community about those individuals). 37 Doe v. Yale University, 1997 WL 766835 (Conn. Super. Ct. Nov. 26,1997) (University hospital using non-properly trained interns is negligent rather than medical malpractice). 13 Doe and Smith v. Mutual of Omaha Insurance Company, 1998 WL 166856 (N.D.Ill. April 3, 1998) (AIDS-caps in two health insurance policies were discriminatory in violation of the Americans with Disabilities Act). 79 Donald P. v. Palmieri, 668 N.Y.S.2d 218 (2nd Depþt 1998) (lower court judge lacked authority when he ordered an HIV test on defendant). 26 Douglass v. Alton Ochsner Foundation, 704 So.2d 844, (La. Ct. App. 1997) (rejecting an attempt by plaintiff in an HIV-transfusion case to avoid the effect of the state's "blood shield law" in a products liability claim). 11 E E.B. v. Verniero, 119 F.3d 1077 (3rd Cir. 1997), cert. Denied sub nom Verniero v. Attorney General of New Jersey, 1998 WL 694212 & 69423 (upheld laws requiring convicted sex offenders to register with authorities after their discharge from prison, and under certain circumstances, authorizing various types of notification to the community about those individuals). 37 In re Eck, 584 A.2d 859 (N.J. Super.Ct. 1991) (absent fraud or other improper purpose, a person has a right to a name change). 20 Egan v. Canada, [1995] 2 S.C.R. 513 (sexual orientation is þanalogous to the other personal characteristics enumerated in 15(1),þ which are race, national or ethnic origin, colour, religion, sex, age or mental or physical disability). 65 Elzie v. Aspin, 897 F.Supp. 1 (D.D.C. 1995) (sexual orientation does not affect that individualþs performance in the workplace; society should not be deprived of the many accomplishments of people who happen to be gay). 19 Engel v. Worthington, 60 Cal.App.4th 628, 70 Cal.Rptr.2d 526 (1997) (plaintiff who sues under the California Unruh Civil Rights Act is entitled to attorney fees as a matter of law). 21 EEOC v. Prevoþs Family Market, 135 F.3d 1089 (6th Cir. 1998) (supermarket did not violate the ADA when it fired a produce clerk who refused to submit to a medical examination after revealing he had tested positive for HIV). 41 Equality Foundation of Greater Cincinnati v. City of Cincinnati, 838 F.Supp. 1235 (S.D. Ohio 1993) (preliminary injunction against Issue 3), perm. inj. granted, 860 F.Supp. 417 (S.D. Ohio 1994); revþd, 54 F.3d 261 (6th Cir. 1995) (homosexuality is a behavior and not a class); vacated and remanded, 116 S.Ct 2519 (1996); 128 F.3d 289 (6th Cir. 1997) (3 judge panel continued to hold Issue 3 constitutional); 75 Fair Emp. Prac. Cas. (BNA) 1763, 1998 U.S.App. Lexis 1763 (6th Cir. Feb. 5, 1998) (full panel refused to reconsider 1997 panel decision). 31 Evans v. Franco, 668 N.Y.S.2d 26 (1st Depþt 1998) (unwed partners are not entitled to rent subsidy succession). 22 F Farmer v. Brennan, 511 U.S. 825 (1994) (prison officials can be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement if the official knows of and disregarded an excessive risk to health or safety). 74 Farmer v. Hawk, 991 F.Supp. 19 (D.D.C. 1998) (transsexual prisoner was entitled to treatment for his condition while incarcerated in a federal prison). 33 Faya v. Almaraz, 620 A.2d 327 (Md. 1993) (HIV+ surgeon performing invasive procedures has a duty to disclose--regarding AIDS-related emotional stress claims). 10 Ferretti v. Mt. Sinai Hospital, N.Y.L.J. at 25, col. 6 (Apr. 10, 1998) (refused to dismiss a complaint alleging discrimination based on the plaintiffþs perceived sexual orientation).72 Fiske v. Rooney, 1998 WL 159928 (Ohio Ct. App. Mar. 19, 1998) (remanded a suit charging U.S. Health Corporation of Southern Ohio and Dr. Richard Rooney with discriminating against William B. Fiske, an HIV+ man, by denial of emergency room service). 80; rev. 1995, 663 N.E.2d 1014. 80 Fletcher v. Fletcher, 1998 WL 135475 (Mich. Ct. App. Mar.24, 1998) (affirmed trial courtþs finding that the mother exercised poor judgment in renting a room in the apartment of a lesbian couple and þexposingþ her children to þnegative aspects of the coupleþs relationship, including their arguments).71 Florida Board of Bar Examiners, In re, 358 So.2d 7 (Fla. 1978) (openly gay attorneys could be admitted to practice law). 77 Forbes v. Merril Lynch, Fenner & Smith, Inc., 1998 WL 164920 (S.D.N.Y. Apr. 6,1998) (assesses Rule 11 sanctions against plaintiffþs attorney in HIV discrimination suit). 80 Ford v. Rigidply Rafters, Inc., BNA Daily Labor Report No. 7, Jan. 12, 1998, A-2 (rejected a claim on same-sex harassment, but did find that plaintiff suffered unlawful retaliation and awarded him $15,000 in damages). 23; 1998 WL 154409 (D. Md. April 1, 1998) (upheld retaliation verdict based on a pre-Oncale same-sex harassment case).73 Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir.), cert. denied sub nom, BVP Mgmt. Assoc. v. Fredette, 118 S.Ct. 1184 (1997) (male employee may sue for harassment by a male supervisor). 50 Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990) (state-created danger theory--if state had taken affirmative action which increases the individualþs private danger of, or vulnerability to, such violence beyond the level it would have been at absent state action, the state is liable). 78 G Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994) (same-sex harassment not actionable under Title VII). 50 General Media Communications, Inc. v. Cohen, 131 F.3d 273 (2nd Cir. 1997) (military ban on lascivious material is constitutional). 5 Gold v. Deutsche Aktiengessellschaft, 1998 WL 126058 (S.D.N.Y. Mar. 19, 1998) (employee must submit his discrimination suit to arbitration). 55 Grant v. South-West Trains Ltd., Case C-249/96 (available at http:/Europa.eu.int/cj/en/jurisp/index.htm) (travel benefits provided to unmarried female partners of male employees while not providing them to unmarried female partners of female employees did not violate equal protection based on sex under European Community Law). 38 Greer v. Shoop, 141 F.3d 824 (8th Cir. 1998) (3 Iowa corrections officers were entitled to summary judgment under a theory of qualified immunity, despite their failure to inform a paroleeþs lover that he was HIV+ before placing him in her home). 78 Griffen v. Cameron College, 1997 WL 795692 (E.D.La. Dec. 29, 1997) (denial of HIV+ applicant admission into college was not discriminatory). 27 Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376 (6th Cir. 1998) (rejecting theory that HIV+ persons who received disability benefits may not pursue discrimination claims under the ADA). 47 Griswold v. Connecticut, 381 U.S. 479 (1965) (privacy/autonomy concept can protect against þgovernment intrusion into oneþs intimate affairs). 49, 61 Gross v. Burggraf Construction Company, 53 F.3d 1531 (10th Cir. 1995) (same-sex harassment is a matter of fact as long as it satisfies the þsteady barrageþ test, which looks at the intensity and pervasiveness of the harassment). 22 Guevara v. Superior Court, 62 Cal. App. 4th 864, 73 Cal. Rptr.2d 421 (Cal. App. 6th Dist. 1998) (Guevara could not be charged with violation of penal code 245(a)(1) (aggravated assault) for engaging in consensual sex with minor females while knowing that he was HIV+). 82 H H.S. v. Board of Regents, 967 S.W.2d 665 (Mo. Ct. App. 1998) (affirming $635,000 plaintiff verdict in an AIDS discrimination suit against Southeast Missouri State University). 79 Hall v. Commonwealth of Virginia, 1997 WL 792952 (Va. Ct. App. Dec. 30, 1997) (upholding a malicious wounding conviction in an HIV biting case). 27 In re Brian Harris, a/k/a Lisa Harris, 707 A.2d 225 (Pa. Super. Ct. 1997) (granting name change to preoperative transsexual). 20 Harrison v. Eddy Potash, 112 F.3d 1437 (10th Cir. 1997) (employer can be held liable for an employeeþs conduct in some situations). 22 Harwood v. State, 961 S.W.2d 531 (Tex. App. 1997) (denying motion to allow testimony about homosexuality of murder victim). 4 Head v. Newton, 596 S.W.2d 209 (Tex. Civ. App. 1980) (calling someone 'queer' is per se defamation). 3 Hernandez v. Barrios-Paoli, N.Y.L.J. at 25, col. 4 (Feb. 3, 1998) (striking down legislation imposing additional eligibility requirements on persons with AIDS seeking benefits and services from New York City). 46 Hickerson v. City of New York, 1998 WL 283205 (2nd Cir. June 3, 1998) (zoning regulations forcing sex-related businesses to shut down or relocate despite state and federal court decisions are constitutionally valid). 76 Hirsch v. National Mall & Services Inc., 989 F.Supp. 977 (N.D. Ill. 1998) (person with lymphoma did not have a disability under the ADA, and allegation that he was discharged because of expense did not state a prima facie case under Title I of the ADA). 26 Hougum v. Valley Memorial Homes, 574 N.W.2d 812 (N.D. 1998) (employee discharged for masturbating in a public restroom stall may have a claim under a state law that forbids discrimination based on lawful off-duty conduct). 19 Huck v. Mega Nursing Services, Inc., 989 F.Supp. 1462 (S. D. Fla. 1997) (individual employees and officers of company charged with HIV related employment discrimination are not individually liable). 25 I Ireland v. Davis, 957 S.W.2d 310 (Ky. App. 1997) (persons in same-sex relationships could obtain orders of protection under state domestic violence statutes). 4 I.V. Services of America v. Trustees of the American Consulting Engineers Council Ins. Trust Fund, 136 F.3d 114 (2nd Cir. 1998) (home health service company caring for a person with AIDS covered by their plan was entitled to a trial of its claim that þoff-labelþ administration of particular drugs prescribed by the personþs doctor should be covered under the plan). 59 Irish Lesbian & Gay Organization v. Giuliani, 1998 U.S.App. LEXIS 7819 (gay groupþs attempt to compel the City of New York to issue it a permit to stage a protest march on St. Patrickþs Day should not have been dismissed on grounds of mootness).68 J Jackson v. U.S. Department of the Air Force, 132 F.3d 39 (9th Cir. 1997) (rejecting appeal of discharge for homosexual conduct). 2 Johnson v. Community Nursing Services, 985 F.Supp. 1321 (D.Utah 1997) (denying defendant's motion for summary judgment in same-sex harassment suit brought under Title VII). 21 Johnson v. Knowles 113 F.3d 1114 (9th Cir.), cert. denied, 118 S.Ct. 559 (1997) (County Republican Committee not amenable to suit under 42 U.S.C. 1983). 6 K Kalke v. City of New York, 666 N.Y.S.2d 631 (1st Depþt 1997) (total ban on distributing condoms in the park is unconstitutional). 27 Kia P. v. McIntyre, 1998 WL 180603 (E.D.N.Y. Apr. 15, 1998) (dismissed a complaint alleging improper conduct by hospital personnel and city child welfare officials in detaining the newborn daughter of an HIV+ mother for ten days after birth). 82 King v. Vaughn, 1997 WL 811960 (E.D. Pa. Dec. 29, 1997) (dismissing a prison inmate's claim that he was not sufficiently protected from a fellow inmate with whom he previously had a gay relationship). 22 King David Development Co. v. Artega, N.Y.L.J. at 27, col. 4 (Mar. 11, 1998) (non-traditional family relationship in a tenant succession case without significant financial documentation of interrelationship was valid, all 8 factors need not be satisfied). 57 Knotts v. Knotts, 693 N.E.2d 962 (Ind. Ct. App. 1998) (upheld awarding of custody to father where motherþs bisexuality was considered to have caused the oldest child to be prescribed Prozac for depression).69 Kwiatek v. McCaw Cellular Communications of Florida, Inc., No. 95- 8059 (company is liable for damages from a supervisor threatening to discharge an employee if he would not take disability leave). 28 L Lumpkin v. Brown, 109 F.3d 1498 (9th Cir.), cert. denied, 118 S.Ct. 558 (1997) (City of San Francisco can remove anti-gay minister from Human Rights Commission). 6 Loving v. Virginia, 388 U.S. 1 (1967) (miscegenation statutes adopted by Virginia to prevent marriages between persons solely on basis of racial classification violate the equal protection and due process clause of the 14th amendment). 49 M Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997) (denial of estrogen treatment to a transsexual prisoner does not constitute cruel and unusual punishment). 3 Marchica v. Long Island Railroad, 31 F.3d 1197 (2d Cir. 1994), cert. denied, 513 U.S. 1079 (1995) (upholding $280,000 award in AIDS-phobia case). 46 Mason v. Stallings, 82 F.3d 1007 (11th Cir. 1996) (individual officers and employees of corporate employers are not personally liable under the ADA for employment discrimination). 26 Massick v. North Central Correctional Facility, 136 F.3d 580 (8th Cir. 1998) (prison officials are immune from suit for putting inmate in same cell with HIV+ inmate). 48 Matczak v. Frankford Candy and Chocolate Co., 1997 WL 764904 (3rd Cir. Nov. 18, 1997) (medically controllable condition, diabetes, is a disability under the ADA). 26 Mauro v. Borgess Medical Center, 886 F.Supp. 1349 (W.D. Mich. 1995), affþd, 137 F.3d 398 (6th Cir. 1998) (HIV+ operating room technicianþs discharge did not violate either 504 of the Vocational Rehabilitation Act or Title I of the ADA). 42 McAdow v. McAdow, Atlanta Constitution, Jan. 18, 1998 (Ga.) (denied custody of children to lesbian mother). 27 McClain v. State, 1998 WL 175618, (Ga. Ct. App. Apr.16,1998) (upheld conviction of gaybasher who had been charged with setting fire to a man for making a homosexual advance). 71 McKinney v. Bellevue Hospital, 584 N.Y.S.2d 538 (1st Depþt 1992) (failure to inform a prospective employee that his physical exam had detected a serious medical condition sounded in negligence). 13 McVeigh v. Cohen, 983 F.Supp. 215 (D.D.C. 1998) (issuing a preliminary injunction to stop plaintiff from being discharged for "don't ask, don't tell" violation). 18, 55 McVeigh v. Cohen, 996 F.Supp. 59 (D.D.C. 1998) (while court could not order Navy to give McVeigh a specific assignment, it could review whether the assignments offered to McVeigh were in compliance with his order). 55 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (S. Ct. recognized sexual harassment as sex discrimination). 2 Middlebrooks v. State Board of Health, 1998 WL 4751 (Ala. Jan. 9, 1998) (HIV name-reporting does not violate doctor's equal protection rights). 25 Moreau v. Roman Catholic Diocese of the City of New York, N.Y.L.J. at 33, col.2 (Mar. 12, 1998) (granted plaintiffþs motion to unseal adoption records of infant plaintiff Justin LiGrecci, who is HIV+, and denied defendantþs cross-motions to dismiss for summary judgment). 61 Murphy v. United Parcel Service, 141 F.3d 1185 (10th Cir. 1998) (not officially published) (driver with high blood pressure was not a person with a disability under the act because his condition is medically controllable).82 N National Endowment for the Arts v. Finley, 1998 WL 332991 (U.S. Sup. Ct. June 25, 1998) (NEA may take into consideration the advisory restriction to take into consideration general standards of decency and respect for the diverse beliefs and values of the American public). 58 Nebraska Press Assþn v. Stuart, 427 U.S. 539 (1976) (determined exception to mootness doctrine--capable of repetition, yet evading review). 68 New England Mutual Life Ins. Co. v. Doe, N.Y.L.J. at 31, col.6 (Apr. 10, 1998) (incontestability clause in a life insurance policy precluded the insurer from refusing to pay benefits on an AIDS- related claim). 83 New York Society of Surgeons v. Axelrod, 77 N.Y.2d 677 (1991) (an action by the Health Commissioner excluding AIDS, HIV infection, and HIV disease from a list of communicable diseases rendering an insurance company liable for damages from a former lover transmitting HIV to plaintiff). 14 Nolley v. Lord, 1997 WL 698172 (S.D.N.Y. Nov. 10, 1997) (rejecting challenge against prison officials for HIV+ inmates who alleged prison conditions violated their 8th Amendment rights). 13 Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998) (reversing the dismissal of a right of privacy claim brought by workers at laboratory, where laboratory tested workerþs blood samples without their specific consent for different conditions). 47 O Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998) (plaintiff has a right to sue for sexual harassment under Title VII of the Civil Rights Act of 1964, regardless of the harasserþs sex or sexual orientation). 50, 73 170 West 85 Street HDFC v. Jones, N.Y.L.J. at 29, col. 6 (N.Y. Co. Civ. Ct. Mar. 18, 1998) (eviction of gay life partner is not valid). 56 Ozer v. Borquez, 940 P.2d 371 (Colo. 1997) (state law prohibiting discrimination based on off-duty conduct covered a gay manþs HIV+ domestic partner) P Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (6th Cir. 1997) (ADA was not intended to regulate insurance policies). 25 People v. Keller, 667 N.Y.S.2d 814 (3rd Depþt 1998) (upholding murder conviction of man who killed a gay man in bias attack). 21 Philips v. Perry, 883 F.Supp. 539 (W.D.Wash. 1995), aff'd, 106 F.3d 1420 (9th Cir. 1997) (military policy of discharging homosexuals is constitutional). 2 Playford v. Phelps Memorial Hospital Center, 665 N.Y.S.2d 1017 (N.Y. Sup. Ct. Westchester Cty. 1997) (statute of limitations for ordinary negligence cases also apply to a claim that defendant hospital wrongly gave incorrect HIV-test results). 13 Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th Cir. 1997) (calling a person 'faggot' is per se defamation because it connotes the misdemeanor crime of sodomy). 3 Pendergist v. Pendergrass, 961 S.W.2d 919 (Mo. Ct. App. 1998) (issue of first impression-- plaintiffs must prove actual exposure to HIV in order to claim emotional distress damages based on fear of contracting AIDS as a matter of law). 43 People v. Caird, 73 Cal.Rptr.2d 799 (2 Dist.1998) (affirmed lower court decision to order an HIV test upon the conviction of Caird on a child molestation charge). 79 People v. Stevens, 91 N.Y.2d 270 (1998) (sex crime convicts who were originally convicted prior to the passage of N.Y.þs Meganþs Law could not directly appeal decisions about their status under the notification requirements that were made after the law went into effect). 37 Polite v. Barbarin, 1998 WL 146687 (S.D.N.Y. Mar. 25, 1998) (refused to grant defendantþs motion for judgment based on the proceedings in a case involving extreme prisoner brutality and possible anti-gay bias by correction officials).73 Prilliman v. United Air Lines, Inc., 53 Cal.App. 4th 935, 62 Cal. Rptr.2d 142 (2 Dist. 1997) (plaintiffþs statement that he was unable to perform the job functions could have referred to the job as he knew it when his disability was not being reasonably accommodated). 80 Q Quark, Inc. V. Harley, 141 F.3d 1185 (10th Cir.1998) (in an unpublished disposition, approved trial judgeþs decision to keep from the jury any evidence that the defendant in a civil action had a homosexual relationship with a person who was allied in interest in a prior proceeding against the plaintiff). 69 Quilter and Pearl et al. V. The Attorney General, No. CA 200/96 (New Zealand Court of Appeals holding against 3 lesbian couples who sued for marriage licenses). 7 R Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998) (upheld a preliminary injunction reinstating an ADA plaintiff, allowing his claims to go to trial in a case involving same-sex harassment and disability discrimination). 34 Randall v. Orange County Council, Boy Scouts of America, 952 P.2d 261 (Cal. 1998) (BSA is not a business establishment within the meaning prescribed under the Unruh Civil Rights Act of 1964). 51 Rasmussen v. Copeland Lumber Yards, Inc., 988 F.Supp. 1294 (D. Nev. 1997) (denying defense summary judgment motion in Title VII same-sex harassment case). 5 Rasmussen v. Rasmussen, 1997 WL 764467 (Tenn. Ct. App. Dec. 12, 1997) (remanding case that awarded father custody because ex-wife had a lesbian relationship). 4 Ravin v. State, 537 P.2d 494 (Alaska 1974) (private possession of marijuana in the home is not a fundamental right). 49 Reichle v. Walsh Offshore, Inc., 1997 WL 728104 (E.D.La. Nov. 20, 1997) (dismissing the claim of an HIV+ person claiming wrongful determination under the ADA). 12 Remmel v. Gwadosky, No. AP-97-112 (Judge order adversely deciding all questions raised by petitioners regarding validity of signatures on ballots for referendum on gay rights law in Maine). 6 Reynolds v. Highland Manor, Inc., 954 P.2d 11 (Kan. Ct. App. 1998) (upholding summary judgment in AIDS phobia case in which woman sued for þnegligent infliction of emotional distressþ after she picked up a used condom in her motel room). 44 Rhone-Poulenc Rorer Pharmaceuticals, Inc. Matter of, 138 F.3d 695 (7th Cir. 1998) (rejected attempt to overturn an order to limit defense expert witnesses to 24 in multi-district litigation over liability for HIV transmission via blood products). 61 Rish v. Johnson, 131 F.3d 1092 (4th Cir. 1997) (finding qualified immunity against prisoner suit on HIV risks). 9 In re Rivera, 627 N.Y.S.2d 241 (N.Y. Sup. Ct. Bronx Cty. 1995) (absent fraud or other improper purpose, a person has a right to a name change). 20 Robinson v. California, 370 U.S. 660 (1962) (court struck down a CA drug statute which made it an offense to be an addict in CA, the statute under challenge required more than mere status for a violation). 11 Roe v. Butterworth, 129 F.3d 1221 (11th Cir. 1997), cert. denied, 118 S.Ct.1309 (1998) (affirming federal district court ruling that Florida law criminalizing prostitution does not violate any federal constitutional rights). 75 Romer v. Evans, 116 S.Ct. 1620 (1996) (struck down Coloradoþs Amendment 2 which would have voided existing gay rights and prohibited the enactment of new ones anywhere in the state). 31, 37, 66, 69 S S. Barbara v. County of Nassau, N.Y.L.J. at 31, col. 1 (Feb. 9, 1998) (granting partial summary judgment to defendants on a claim of fear of contracting AIDS as a result of an alleged needlestick accident). 45 Santa Rosa Health Care Corp. V. Garcia, 964 S.W.2d 940 (Tex. 1998) (defendant had no duty to warn Garcia that her husband may have been exposed to HIV). 78 Sardinia v. Dellwood Foods, Inc., 69 Fair Emp. Prac. Cases (BNA) 705 (S.D.N.Y. 1995) (cases that reject same-sex harassment are not valid). 35 School Board v. Arline, 480 U.S. 273 (1987) (noting Supreme Courtþs dictum that courts should defer to public health authorities in cases requiring the exercise of medical judgments).9 Schuler v. McGraw-Hill Companies, Inc., 989 F.Supp. 1377 (D.N.M.1997), affþd, 1998 WL 193132 (10th Cir. Apr. 22, 1998) (upholding a decision by the district court in N.M. to dismiss an action by a post-operative transsexual against Business Week magazine for a 1994 article which referred to the plaintiffþs personal history as part of an investigative report on certain marketing practices in the securities industry).74 Shahar v. Bowers, 114 F.3d 1097 (11th Cir.), cert. denied, 118 S.Ct. 693 (1997) (Attorney General can refuse to employ a lesbian attorney who was to marry her partner). 17 Sheils v. Univ. of Pennsylvania Medical Center, 1998 WL 134220 (E.D.Pa., Mar. 24, 1998) (Granted medical centerþs motion to dismiss an infertile coupleþs challenge to fertility programþs screening procedures). 83 Siegert v. Gilley, 500 U.S. 226 (1991) (court is required to decide whether a þviolation of a clearly established constitutional rightþ has been alleged at all). 78 Silver v. Starrett, N.Y.L.J. at 1 col. 1 (Apr. 20, 1998) (separation agreement negotiated by a lesbian couple to terminate their relationship was an enforceable contract, rejecting arguments of duress and lack of consideration). 71 Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) (state marriage law did not discriminate on the basis of sex). 1 Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir. 1998) (if employees cannot perform their jobs due to a disability even with reasonable accommodation, they are not qualified for protection under the act). 82 State v. Bowens, 964 S.W.2d 232 (Mo.App. 1998) (affirmed criminal conviction under a state statute which penalizes the creation of a risk of HIV infection). 60 State v. Cooper, 949 P.2d 660 (N.M. 1997) (HIV+ gay man who murdered another gay man deserved a redetermination of sentencing). 10 State v. Fowler, 1997 WL 779116 (Tenn. Crim. App. Dec. 17, 1997) (reversing attempted rape charge brought against gay man). 5 State v. Hammons, 1997 WL 779085 (Ohio Ct. App. Dec. 15, 1997) (vacating sentence of HIV+ man convicted of rape and kidnaping because of errors). 12 State v. Machholz, 574 N.W.2d 415 (Minn. 1998) (harassment law unconstitutional in anti-gay hate speech case). 18 State v. Mallan, 950 P.2d 178 (Haw. 1998) (Hawaii Constitutionþs right of privacy does not include the right to possess and use marijuana). 37 Storrs v. Holcomb, 666 N.Y.S.2d 835 (3d Depþt 1997) (same-sex couple sued the wrong defendant and dismissed their appeal of a marriage license suit). 1 Stringfellowþs of New York v. City of New York, 91 N.Y.2d 382 (1998) (New York City ordinance intended to sharply reduce the presence of sex-related businesses in many neighborhoods does not violate the constitutional right of freedom of expression). 32 Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Cir. 1997) (pilotþs vision did not impair a þmajor life activityþ since the condition was correctable by glasses). 82 T Tanner v. Oregon Health Sciences University, 1996 WL 585547 (Or.Cir. Multnomah Co. Aug. 8, 1996) (On-going lawsuit seeking domestic partner benefits for state employees). 75 Tarver v. Calex Corp., 1998 WL 74378 (Ohio Ct. App. Jan. 29, 1998) (a claim for hostile environment same-sex workplace harassment may be brought under the sex discrimination provision of the stateþs human rights law). 35 Tennessee v. Pipkin, 1997 WL 749430 (Tenn. Crim. App., Dec. 4, 1997) (HIV+ test justifies enhanced sentencing in rape of child). 12 Terminello v. Chicago, 337 U.S. 1 (1949) (articulating the two prong test for protected speech). 18 T.K.T. v. F.P.T., 1998 WL 45316 (Ala.Civ.App. Feb. 6, 1998) (upheld lower court decision to restrict visitation rights of homosexual father by basing same on fatherþs admitted homosexuality). 33 Tokar v. Bowersox, 1998 WL 125656, (E.D.Mo. Mar. 19, 1998) (denied petition for writ of habeas corpus by plaintiff who was convicted of murder; Tokar claimed that trial court erred by allowing a fellow petitioner to testify about a statement Tokar had made in jail concerning his HIV status). 62 Tolman v. Doe, 988 F.Supp. 582 (E.D.Va. 1997) (doctor was defamed by his partner who revealed his HIV status to his patients). 9 Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989) (zoning regulations relegating sex-related businesses to non-residential neighborhoods did not violate constitutional right to freedom of expression). 32 U United States v. Ruff, 1998 WL 133186 (M.D.Ala. Mar. 20, 1998) (found credible evidence for a downward departure in the sentencing of a petite HIV+ gay man þwith somewhat effeminate mannerismsþ on account of the risk of victimization in prison).73 United States v. Wilke, 995 F.Supp. 828 (N.D.Ill. 1998) (ordering a downward departure from federal sentencing guidelines for a gay man who pled guilty of sending in interstate commerce a videotape depicting minors engaged in sexually explicit conduct). 34 Urofsky v. Allen, 995 F.Supp. 634 (E.D.Va. 1998) (overturning VA state law that intended to restrict state employee access to sexually explicit material on state-owned computers). 54 V Vecchione v. Vecchione, Associated Press, Nov. 26, 1997 (Cal.Super.Ct., Nov. 25, 1997) (woman could not obtain an annulment after husband became a transsexual). 6 Vriend v. Alberta, File No. 25285 (available on the WWW at http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html) (Alberta legislatureþs failure to include sexual orientation in its anti- discrimination legislation violates 15(1) of the Canadian Charter of Rights and Freedoms, and that the appropriate remedy is the þreading inþ of sexual orientation into the Alberta legislation with immediate effect). 65 W W., In re, (A Minor) (Adoption: Homosexual Adopter), decided Feb. 25-26, 1997, and reported in The Weekly Law Reports on October 24, 1997, court could entertain the application of a local authority to free a child for adoption by a lesbian cohabitating in a homosexual relationship). 7 Walker v. Allen Parish Health Unit, 1998 WL 146206 (La. Ct. App. April 1, 1998) (affirmed dismissal of an emotional distress claim brought by Lori and Marlan Walker, premised on negligence of defendant that led to their infant son suffering a needle prick in the hospitalþs waiting room). 80 Wilcox v. Dome Railway Services, 987 F.Supp. 682 (S.D.Ill. 1997) (denying defense motion for summary judgment in Title VII same-sex harassment claim). 5 Wilcox v. Trautz, 693 N.E.2d 141 (Mass. 1998) (rejected a probate court decision that found a cohabitation agreement between unmarried adults unenforceable as a matter of public policy--such an agreement would be enforceable under ordinary rules of contracts). 69 Williams v. Glendening, Civ. No. 98 036031-CC1059 (Baltimore City Circuit Court, filed Feb. 5, 1998) (suit challenging MD law which criminalizes private, consensual, non-commercial sexual intimacy between adults of the same sex, but has been held by the MD Court of Appeals to be inapplicable to the same conduct when engaged in by adults of the opposite sex) 37 Wilson v. I-Stat Corporation, 1998 WL 57042 (E.D.La. Feb. 10, 1998) (potential liability in an AIDS-phobia case was sufficient to meet the jurisdictional requirements for diversity jurisdiction). 46 Wilson v. Wright, 948 F.Supp. 650 (E.D.Va. 1998) (Wilson had stated a potentially valid 8th amendment claim against a prison official for cell assignments in a rare instance of allowing a prisoner rape 8th amendment cast to go to trial). 56 Winkler v. City of Chicago, No. 97-C-2475 (U.S. Dist.Ct., N.D.Ill.)., (settlement announced Feb. 4 1998) (sued city for sponsoring programs administered by Boy Scouts of America as long as BSA continues to ban participation by gay people or people who do not believe in God--city will stop sponsorship according to settlement). 34 Wyatt v. Department of Corrections, 1998 WL 40375 (Wash. Ct. App. Feb. 3) (affirming decision that department of corrections and one of its officers were negligent for not preventing a supervised parolee from infecting a woman with HIV, but found no proximate cause for her damages). 44 X Y Z Zillyette v. Capital One Financial Corporation and Capital One Services, Inc., 1998 WL 181959 (M.D.Fla. Feb. 13) (Florida federal court rules against HIV+ employee on ADA discrimination claim). 81