LESBIAN/GAY LAW NOTES

ISSN 8755-9021 May 2000

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls.edu

Contributing Writers: Elaine Chapnik, Esq., New York City; Ian Chesir-Teran, Esq., New York City; Steven Kolodny, Esq., New York City; Mark Major, Esq., New Jersey; Sharon McGowan, Harvard Law Student, Cambridge, Massachusetts; K. Jacob Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City; Robert Wintemute, Esq., King's College, London, England.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: le-gal@interport.net

(C) 2000 by the Lesbian & Gay Law Association Foundation of Greater New York.

Associate Justice Long, writing for the court, first addressed M.J.B.'s contention that the court lacked jurisdiction to consider V.C.'s claims for lack of standing. While acknowledging that "no statutes explicitly address[] whether a former unmarried domestic partner has standing to seek custody and visitation with her former partner's biological children," the court looked to the current statutory scheme as a whole for guiding principles. Specifically, the court noted that the legislature had declared as a matter of public policy a desire "to assure minor children of frequent and continuing contact with both parents after the parents had separated or dissolved their marriage . . . and to encourage parents to share in the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. sec. 9:2-4. Furthermore, other statutory provisions defined "parent" broadly: "the word >parent,= when not otherwise described by the context, means a natural parent or parent by previous adoption." N.J.S.A. sec. 9:2-13(f). Justice Long insisted that the language "when not otherwise described by the context" demonstrated "a legislative intent to leave open the possibility that individuals other than natural or adoptive parents may qualify as >parents,= depending on the circumstances." Even if the legislature had not specifically envisioned the case of lesbian co-parents, Long was convinced that this case fell clearly within the scope of that catch-all provision.

Although Justice Long wrote the decision of the court, she also authored a concurring opinion. She justified this practice as consistent with _Negron v. Llarena_, 716 A.2d 1158 (N.J. 1998), which noted that the author of majority opinion is free to add remarks in a concurring opinion. In her concurrence, Long insisted that while family law in many ways reflects the values traditional nuclear families are thought to embody, one should not assume that only the nuclear family is valued. "Although the nuclear family was merely the perceived repository of these valued characteristics, eventually it came to be viewed by many as though it represented a value on its own right." Long cautioned that "we should not be misled into thinking that any particular model of family life is the only one that embodies >family values.=" Rather, the bond between parents and their children <!69>is borne out of the daily toil parents engage in to keep their children healthy and safe from harm . . . . When the bond exists, the parents and the children become a family -- an entity greater than the sum of its parts." This case was about more than simply recognizing gay families that mimic the traditional (heterosexual) model. The court's determination in this case was an attempt to reflect the "reality and not merely legality that should dictate who can be denominated as a psychological parent."

By a vote of 79-68 on April 25, the Vermont House of Representatives approved the version of the Civil Union Bill, H.B. 847, that had been approved the previous week by the state Senate, 19-11, after some minor amendments were made, and Governor Howard Dean signed the measure into law the next day, April 26. The signing ceremony was held privately in Dean=s office, amidst speculation that public unhappiness with the new law may result in major changes in the composition of Vermont=s legislature in November, as well as imperiling Dean=s own re-election chances.

Significantly, the Senate had rejected proposals to limit eligibility for civil union ceremonies to couples of whom at least one was a Vermont resident, dismissing the argument that allowing out-of-state couples to become civilly united would create conflicts with laws of other states. The Senate had also rejected a proposal to send the issue of civil unions to a referendum, or to submit a constitutional amendment to voters overturning the Vermont Supreme Court=s ruling in _Baker v. State of Vermont_,744 A.2d 864(Vt. Sup. Ct. 1999), which was the catalyst for enactment of the law.

Unanimous as to outcome but sharply divided as to methodology, the Virginia Supreme Court ruled April 21 in _Arlington County v. White_, 2000 WL 429453, that Arlington County=s extension of health insurance eligibility to domestic partners of county employees is invalid.

In an opinion for the court, Justice Lawrence L. Koontz, Jr., reviewed the County=s eligibility requirements for partner benefits and found that they did not constitute a reasonable interpretation of the state law authorizing municipalities to provide insurance benefits to employees. (In a prior decision, the court had ruled that the statute on municipal benefits also applied to county governments.)

The statute, sec. 51.1-801, provides that a "local governing body may, through self-funding... provide... sickness insurance coverage for officers and employees... and their dependents." The county argued that as the term "dependents" was undefined in the statute, it could interpret the term broadly to include persons who live together and are financially interdependent. The taxpayer group that filed suit challenging the policy premised their objection on the state=s Dillon Rule, which provides that local governments do not have general legislative powers but rather are restricted to exercising those powers directly granted by the legislature or the state constitution. The taxpayers argued that the county legislature lacked authority to provide any recognition to unmarried partners, whether opposite-sex or same-sex, in light of Virginia=s abolition of common-law marriage and prohibition of same-sex marriage (as well as continuing prohibitions under criminal law of fornication and sodomy).

Justice Koontz stated that it was unnecessary to decide the Dillon Rule issue. Even on the grounds advanced by the county, that it was merely adopting a reasonable interpretation of the undefined term "dependents" in the statute, the court found the county=s definition to be "unreasonable," because dependency connotes a person who is reliant on another for support, and the county policy did not create a true dependency test for eligibility. Koontz also noted that in 1997 the Virginia Attorney General, responding to an inquiry from a state legislator, had issued a formal opinion letter stating that localities do not have the authority to extend insurance coverage to "domestic partners" of their employees. See 1997 Op. Va. Att=y Gen. 131.

The county argued that it extended benefits eligibility to employees= spouses without requiring a showing of dependency, even though the statute does not specifically mention spouses, merely dependents, but Koontz dismissed this argument on the ground that providing benefits to spouses was long-established and unquestioned, and thus clearly within the intent of the General Assembly when it passed the statute.

Koontz concluded that in light of the benefits statute and the Attorney General=s opinion, "we are of opinion that the expanded definition of dependants eligible to receive coverage under the self-funded health insurance benefits plan adopted by the County is not a reasonable method of implementing its implied authority under those statutes and is, therefore, an ultra vires act." Justice Kinser concurred separately, mainly to explain why the dissent=s call for a more broadly-based ruling rejecting domestic-partnership benefits need not be reached in this case.

Dissenting in part in an opinion by Justice Hassell, Hassell, Chief Justice Carrico and Senior Jusitce Compton agreed that the Arlington County benefits plan was invalid, but would have based the holding more broadly on a violation of the Dillon Rule rather than the majority=s narrow holding that the eligibility requirements adopted by the county failed to constitute a reasonable definition of "dependent." As Hassell explained, under the majority=s approach, the county could just go back and re-enact its policy without the offending "interdependency" provision and the objecting taxpayers would be right back in court relitigating the issue, once again raising the Dillon Rule question that the majority fought shy of answering in this case.

Hassell=s concern seems to reflect the experience of another southern state in which the Supreme Court rejected a municipality=s domestic partnership benefits plan on grounds that eligibility was not limited to dependents, only to find that the municipality then adopted a new policy limited to dependents (defined to include opposite or same-sex domestic partners who were financially dependent upon their employee-partners). (See _City of Atlanta v. Moran_, 492 S.E.2d 193 (Ga. 1997).) So may it be done. A.S.L.

In an important decision on the scope of the 1999 amendment to the California Fair Employment and Housing Code that added "sexual orientation" to the list of protected categories, the California Court of Appeal, 4^th District, ruled April 19 that the amendment was merely codifying existing law from the state=s Labor Code, and thus a school teacher whose claim of sexual orientation harassment arose from incidents predating the 1999 amendments was nonetheless actionable, despite the school district=s argument that such harassment was not covered by the prior Labor Code sexual orientation provisions. _Murray v. Oceanside Unified School District_, 2000 WL 419791. The court also found that allegations of sexual orientation work place harassment could support a claim for intentional infliction of emotional distress. The unanimous ruling was expressed in an opinion by Judge Huffman.

Murray=s claims relied on Labor Code sections 1101, 1102 and 1002.1, which prohibit discriminatory employment actions based on employee=s political activities, and which also included specific protection against discrimination on the basis of sexual orientation. The district moved to exclude all evidence on claims other than the promotion claim, arguing that the Labor Code provision covered discrimination but not harassment. The trial court bought the district=s argument, and narrowed the case to the promotion claim, then found that the promotion claim was not timely. At the same time, the court found that Murray=s claim of intentional infliction of emotional distress could not survive the dismissal of all her other claims.

Next, the court found that when the legislature enacted the 1999 amendment, it had intended merely to move the comprehensive prohibition on sexual orientation discrimination in the work place from the Labor Code to the Fair Employment and Housing Code. The FEHC makes explicit the prohibition on harassment, in addition to the more tradition prohibition on discrimination. The court then found that the changes in statutory language going from the Labor Code to the FEHC were made "in an effort only to clarify a statute=s true meaning," and thus should be considered retroactive. "Oceanside had no vested right to conduct its employment affairs in a manner that violated established public policy," declared Huffman.

Proceeding to analyze Murray=s allegations in light of this statutory interpretation, the court found that the trial judge erred in granting the defendant=s motion in limine. The allegations of harassment should have been considered, and since Murray had been filing claims related to this harassment since November 1995, as it was occurring, those claims were clearly timely. The court also rejected the school district=s argument that it could only be held liable for claims of tangible injury, finding that the statute specifically provides that "Loss of tangible job benefits shall not be necessary in order to establish harassment."

The court then considered various administrative and procedural issues, finding that Murray was not required to exhaust administrative remedies with the State Labor Department before filing her tort claims. The court also noted that although the FEHA has a one year statute of limitations, it also embodies a continuing violation theory under which complaints about a pattern of conduct may relate back to incidents more than a year prior to the complaint so long as the conduct continued into the year prior to the filing. In this case, Murray=s promotion claim was still time-barred, but the court found that her allegations were sufficient to withstand a dismissal of the harassment claims, provided she can ultimately establish a continuing violation on this issue.

Turning to the emotional distress claim, the court found that an allegation of intentional hostile environment harassment based on sexual orientation can suffice to support a claim for intentional infliction of emotional distress. This is significant, because in most jurisdictions the threshold of misconduct necessary to ground such a tort claim is so high that it is rarely met by the plaintiff. The court rejected the district=s argument that such a tort claim should be held to be barred by the workers compensation law, finding that California courts had held workers compensation no bar to actions for intentional torts of this type. In a prior case, this court had stated, "by its very nature, sexual harassment in the work place is outrageous conduct as it exceed all bounds of decency usually tolerated by a decent society. Accordingly, if properly pled, sexual harassment will constitute the outrageous behavior element of a cause of action for intentional infliction of emotional distress." The court then held that "the same is true of harassment based on sexual orientation." And the court found, based on her allegations, that Murray should be allowed to pursue the tort claim on trial if she could establish the continuing violations necessary to meet statute of limitations issues.

Murray was represented on the appeal by Lambda Legal Defense Fund=s West Coast office, with attorneys Myron Dean Quon, Jon W. Davidson, and Paula A. Brantner working on the case. A.S.L.

Ruling April 26 in _East High School Prism Club v. Seidel_, No. 2:00CB311C (U.S. Dist. Ct., D. Utah), U.S. District Judge Tena Campbell granted a preliminary injunction, finding that students who want to start a curriculum-related lesbian and gay-supportive student group at Salt Lake City=s East High School, had demonstrated a high probably that they will prevail on the merits of their claim that School District Assistant Administrator Cynthia Seidel violated the Equal Access Act by refusing to approve their application to meet at the school.

The genesis of the lawsuit goes back several years, when a group of students sought to form a gay/straight student alliance at East High School where gay and non-gay students could meet and discuss issues of concern to gay students at the school. The city School Board reacted to news about this club by passing a policy against all extra-curricular student clubs in the city=s schools, after being advised by their legal counsel that under the federal Equal Access Act, such a step would be necessary to maintain a ban against formation of a gay-supportive group. The Rainbow Club members sued in federal court, but the court concluded that with the exception of one narrow slip-up, the school district had managed to comply with the Equal Access Act and thus was not required to recognize the Rainbow Club. See _East High Gay/Straight Alliance v. Board of Education of Salt Lake City_, 81 F.Supp.2d 1166 (D. Utah 1999) .

Back to the drawing board went the students, this time proposing a new club that would specifically tie in to the curriculum by sponsoring discussions of American history, government, law and sociology, specifically addressing the issues of democracy, civil rights, equality, discrimination and diversity, which are all topics in the curriculum of those courses. In their application form, the students stated, "Our club is not about >advocating homosexuality,= promoting a partisan platform, or discussing sexual behavior. We agree with the school district=s non-discrimination policies and with the United States Constitution that all students should have an equal voice and be treated with equal respect." The application, reflecting the proposed name for the club, states that these topics will be looked at through the "prism" or the "impact, experience and contributions of gays and lesbians." When the application came to the desk of Cynthia Seidel, the administrator responsible for passing on club applications, she determined that the club was not qualified as a curricular club under the district=s guidelines, stating in her letter to the applicants: "the organizing subject matter of the club narrows to >the impact, experience, and contributions of gays and lesbians= in historical and current events, institutions, and culture. This subject matter is not taught in the courses you cite. After careful review of your application, I am unable to approve this club as a curriculum-related club."

The students then filed suit, represented by the Utah Civil Liberties Union, Lambda Legal Defense Fund and the National Center for Lesbian Rights, and sought a preliminary injunction so that they could get their club launched while the lawsuit is pending. Judge Campbell faulted the school district for inconsistent application of the rather vague standards it had adopted for curriculum-related clubs. The students argued, persuasively in the court=s view, that Seidel was applying, on an apparently ad hoc basis, an additional standard not articulated in the district=s formal policy; i.e., that a student club would not be approved, even where its subject-matter related to issues addressed in the curriculum, when it sought to address those issues from the perspective of a particular group, and when that particular perspective was not itself addressed in any of the courses to which the subject-matter was related.

Campbell found that the subject matter to which the Prism application was addressed is taught in various courses, and that the district=s contention that a club=s approach to the subject matter would be too "narrow" if presented from the perspective of a particular group was illegitimate. Campbell rejected the District=s argument that Prism was actually a political rather than a curricular club, noting that its application disavowed advocacy or promotion of a "partisan platform." Campbell also rejected the argument that the club was proposing to view the subject matter from only one viewpoint, finding instead that while the club proposed to view its subject matter in terms of the impact, experience and contributions of gays and lesbians, it was not necessarily embracing any single viewpoint of how that would play out. "Club membership is not limited to gays and lesbians," she observed, "and there is nothing in the club application that would even indicate that only pro-gay views would be tolerated in club meetings."

Campbell rejected the District=s argument that a "no narrowing" of subject-matter rule was implicit in the formal policies the district had adopted, and found in the formal policy "no requirement (explicit or implicit) that the club address _the entire_ subject matter of the class form every conceivable viewpoint." As to inconsistency of application, the court noted the approval of the East Polynesian Club and the CHARABANC Humanities Club, both of which seemed to present the same possibility of violating a "no narrowing" rule. And the court, quoting a Supreme Court statement that the loss of First Amendment freedoms, "for even minimal periods of time, unquestionably constitutes irreparable injury," found it easy to conclude that this important element of the test for preliminary injunctive relief had been met.

As to whether the potential damage to the defendant would outweigh the continuing injury to the student group, Campbell found that the only injury to the defendant is that it will have to comply with its own announced policies for approval of curricular clubs. Judge Campbell rejected the district=s argument that forcing it to let the club meet would be adverse to the public interest, finding that in light of the strong First Amendment right of the students at stake, denying preliminary relief would be more harmful to the public interest.

The _Deseret News_ reported April 28 that the School Board had hastily scheduled a meeting to consider whether to defy the court, appeal the case, or just cave in. Meanwhile, district officials picked up on another part of Campbell=s opinion, suggesting that Seidel had also improperly rejected applications from two other groups of students seeking to form a Women=s Studies Club and a Students Against Drunk Driving Club, and said they would reconsider those applications. A.S.L.

Rejecting a sex discrimination by Robin Cooke, the Ohio 9^th District Court of Appeals ruled April 26 that Cooke=s discharge from employment after the termination of her affair with her supervisor, Charlene Harrison, was not actionable under Ohio=s sex discrimination law, and also did not give rise to a claim for emotional distress damages. _Cooke v. SGS Tool Co._, 2000 WL 487730 (unpublished disposition).

Cooke, a divorced woman with children, was hired into the shipping department of SGS in 1996. During her employment, she developed a relationship with Harrison. As other employees in the virtually all-female workforce figured out what was going on, Cooke became the subject of critical comments and other forms of harassment and charges of potential favoritism. She developed attendance problems stemming from depression evidently spurred by the tension between her relationships with Harrison and with her co-workers. Harrison told her they would have to terminate their affair, and also that her absenteeism was becoming unacceptable. Nevertheless, the two women subsequently spent a romantic weekend together, but shortly thereafter Cooke=s "work team," chaired by Harrison, voted to recommend termination based on the attendance record, and SGS accepted the recommendation and terminated Cooke.

The Summit County Court of Common Pleas granted the company=s motion for summary judgment, and the court of appeals, in a unanimous opinion written by Judge Slaby, affirmed. First, Slaby found that Cooke=s claim of sex discrimination failed under the statute. "In her deposition, Appellant alleged that her coworkers ridiculed her because of her sexual orientation and tormented her because of her relationship with Ms. Harrison. Although same-sex harassment may be actionable under R.C. 4112.02 to the extent plaintiffs can demonstrate that the harassment occurred because of their sex, the prohibitions of R.C. 4112.02(A) do not extend to sexual orientation. . . Nothing in the record, including Appellant=s own testimony, establishes a connection between her sex and any alleged harassment that occurred during her employment at SGS."

Furthermore, this case did not fit the usual model of quid pro quo harassment, i.e., where a supervisor makes acquiescence with her sexual advances a condition of employment. Cooke wasn=t complaining about the relationship with Harrison, as such, which was "wholly consensual" and which she testified had "ended by mutual agreement" even though she "voluntarily spent a weekend, apart from work, with Ms. Harrison and that during that weekend the two engaged in sexual contact" after they had agreed to terminate their relationship. The point was that Harrison=s advances were not "unwelcome" by Cooke, which the court saw as a necessary element in a quid pro quo harassment case.

As to the disability claim, while agreeing that disabling depression could qualify as a disability under Ohio law, the court did not find Cooke=s depression sufficiently disabling, noting that in her deposition she had testified that it had not prevented her from carrying on everyday activities. Furthermore, relating to both statutory claims (sex discrimination and disability discrimination), the employer had a non-discriminatory justification for the discharge: Cooke=s admittedly poor attendance record. Even though she had doctor=s notes for her absences, there were just too many of them and an employer is not required to continue to employee somebody whose frequent absences impose a burden on the workplace.

As to the emotional distress claims, the court found that Cooke had failed to submit any substantive response to the defendant=s arguments in support of its motion for summary judgment on these claims, and thus summary judgment was presumptively appropriate, since it is not enough for the plaintiff to rest on her pleading allegations in response to such a motion. A.S.L.

Writing for the court of appeals panel, Judge Kalitkowski found that the district court did not err in concluding that Thomas=s factual allegations were insufficient to make out a cause of action under the state=s employment discrimination statute, which includes "sexual orientation." For one thing, the district court had decided that the supervisor=s off-duty homophobic comment had to be excluded from evidence as not relevant to the issue of workplace harassment. Second, the other homophobic comment attributed to this supervisor was not directed at Thomas, and the court found that Thomas=s allegations would not support a conclusion that the supervisor necessary knew Thomas was a lesbian, concluding that the "outing" incident recounted by Thomas does not appear to have had any particular significance for the supervisor.

The court also stated some doubt whether the Wisconsin statute forbids harassment on the basis of sexual orientation in the workplace, noting that only sexual harassment is specifically mentioned in the statute, not sexual orientation harassment. But even if it assumed for purposes of discussion that sexual orientation harassment would be actionable, the court found that Thomas=s allegations did not cross the threshold of severe and pervasive harassment necessary to alter terms and conditions of employment on a discriminatory basis. The court found that even though Thomas was offended by the two homophobic comments of her supervisor (both times characterizing lesbians as "freaks"), on neither occasion was the comment directed at her, and the first comment was inadmissable.

The court also upheld rejection of Thomas=s retaliation claim. She had complained to the payroll supervisor about her direct supervisor=s homophobic comment about another employee, and the payroll supervisor had then cautioned Thomas=s supervisor not to discuss lesbians, because somebody had heard her remark and had been offended by it. The payroll supervisor, at Thomas=s request, did not reveal that Thomas was the source of the complaint. Consequently, Judge Kalitkowski concluded, the retaliation claim had to fail because there was no credible allegation that the supervisor knew that Thomas was the complainant, or even that Thomas was gay (the court having concluded, as noted above, that the supervisor would not necessarily have formed this conclusion as a result of the alleged "outing" incident). A.S.L.

U.S. District Judge James L. King concluded that Steven Lofton, a gay man seeking to adopt the child (identified in court papers as John Doe) who has been living with him since birth in a foster care placement, has standing to bring a federal constitutional challenge to Florida=s state law ban against adoption by gay people. _Lofton v. Butterworth_, No. 99-10058-CIV (S.D. Fla., April 21, 1999). At the same time, King found that the other named plaintiffs, who had not formally applied for approval to be adoptive parents even though they swore they were interested in doing so, would have to go through the futile application process in order to have standing, and dismissed them from the case. However, King left open the possibility of allowing them to rejoin the litigation if they made their applications and were rejected.

In explaining why the other plaintiffs could not proceed, King noted that standing doctrine requires that one=s injury be "imminent," especially when "the acts necessary to make the injury happen are at least partly within the plaintiff=s overall control." In this case, if the other plaintiffs never actually applied to be adoptive parents, they would suffer no injury, at least in King=s view, rejecting the argument that the existence of the statutory categorical ban would deter anybody who knew of it from applying, and so the injury would have already occurred. King observed that none of the plaintiffs, other than Lofton, could show that they "are presently ready, willing, and able to adopt," because they had never applied.

"Requiring these plaintiffs to apply to adopt is not an exercise in futility," wrote King. "Filing an adoption application establishes that a plaintiff not only have a >desire to adopt,= but will in fact actually adopt a child," and in this case King found some doubt on that score, since their allegations did not reflect an immediate intention to adopt, but rather merely an inclination to do so in the future.

Having rejected the motion to dismiss as to Lofton, King directed the state defendants to answer the complaint within 30 days, and dismissed the attorney general as a named defendant in the case, thus leaving as defendants the secretary of Florida=s Department of Children and Families, Kathleen Kearney, and two local administrators. The ACLU Lesbian & Gay Rights Project represents the plaintiffs. A.S.L.

The problem Foley encountered was that Section 235.22 is much more specific than the Communications Decency Act in specifying what kind of communications come within its scope, thus avoiding overbreadth and vagueness problems, and also adds a specific intent requirement that narrows its scope to focus on the specific problem of attempts by adults to entice minors into having sex, as to which it would not be difficult to find a compelling state interest provided one agrees with the Supreme Court=s oft-expressed views on sex and children.

Judge Wesley found that, unlike the Communications Decency Act, this statute=s addition of the "luring" requirement means that it is aimed at conduct, not just speech, and thus traditional First Amendment overbreadth analysis would not apply. The court also rejected any idea that the statute was too vague for a person of reasonable intelligence to understand, and found that the state=s compelling interest in protecting children overcame any First Amendment problem that might be posed by the content-based nature of the regulation. "The speech-conduct sought to be prohibited by Penal Law sec. 235.22 B the endangerment of children through the dissemination of sexually graphic material over the Internet B does not merit First Amendment protection," Wesley affirmed. "In any event, the statute does not effectuate a total ban on the dissemination of sexual content communication, but merely limits its use. Although the statute may incidentally burden some protected expression in carrying out its objective, Penal Law sec. 235.22 serves the compelling interest of preventing the sexual abuse of children and is no broader than necessary to achieve that purpose."

The court was no more encouraging towards Foley=s challenge to the other provision under which he was convicted, sec. 263.15, prohibiting promoting a sexual performance by a child. The statute had previously been upheld in _New York v. Ferber_, 458 U.S. 747, but Foley tried to argue that the issue had to be considered anew in light of new technology, pointing out that it is possible now to manufacture a sexually-explicit graphic file using computer technology such that no actual sexual performance had to take place in order to produce the graphic. Foley argued that the trial court erred by failing to instruct the jury that the state had to prove "the actual use of children in the prohibited performances," and that trying him under the statute without such an instruction rendered it fatally overbroad.

Wesley found Foley=s reading of the statute to be "speculative and broad," and found that the statutory scheme "allows the fact-finder to make a determination on the evidence submitted whether the performance involves an individual under the age of 16," thus meeting constitutional requirements. In this case, Foley had been allowed to produce an expert who testified on the question whether digital splicing had been used to manufacture the sexual graphics, but Foley=s expert could only point to one image that appeared to have been digitally altered from among the many Foley sent. The court concluded that the statute could not be found unconstitutionally overbroad as applied to Foley. The opinion does not specify the penalty imposed on Foley. A.S.L.

In _Knight v. State of Connecticut Dept. of Health_, 2000 WL 306447 (U.S.Dist.Ct., D. Conn., Feb. 22), the court granted the state=s motion for summary judgment on constitutional and Title VII claims asserted by an employee who was discharged for making anti-gay religious remarks in a work-related context.

Plaintiff Jo Ann Knight, a nurse consultant for Connecticut State Department of Public Health, was responsible for making home visits to individuals receiving home health services through Connecticut=s public health system. As part of her job, she interviewed a same-sex couple about the nursing care one of them received (he had an advanced case of AIDS) and the services provided by the home health agency. They engaged in a discussion concerning the men=s professional and volunteer work, and feelings of isolation. During the conversation, Knight, a born-again Christian, inquired about their religious beliefs. The clients professed having religious beliefs and one of them stated that he did not believe that he would be punished for his gay lifestyle. Knight responded that "although G-d created and loves us, He doesn=t like the homosexual lifestyle." In response, the men filed a complaint and a lawsuit against the state, alleging discrimination on the basis of sexual orientation. Knight=s employer suspended her for two weeks and removed home visits from her job responsibilities. She filed a lawsuit in federal court based on the First and Fourteenth Amendments and Title VII, claiming that the disciplinary action violated her constitutional rights to free speech and equal protection as well as her Title VII rights.

The state claimed that plaintiff Knight=s speech was not constitutionally protected because it was made in her role as a public employee, and the action was proper because her speech needed to be restricted in order for the State to fulfill its responsibilities to the public. She argued that the defendant=s policy was not narrowly tailored and her rights to free speech and free exercise of religion outweigh the State=s interest in running an efficient workplace. Judge Squatrito cited cases to the effect that a state employee=s speech is protected under the Constitution only if it touches on matters of public concern and his or her motive is not private and personal. If the speech is protected by the First Amendment, the state must then balance the employee=s interests in commenting about matters of public concern against the state=s interests in promoting the efficient delivery of public services (this is the "Pickering test," which was established by _Pickering v. Bd. of Educ._, 391 U.S. 563 (1968)).

The court, assuming arguendo that the plaintiff=s speech was constitutionally protected, applied the Pickering test and found that the employer did not violate her First Amendment rights. "While performing her duties as a state employee, the plaintiffYfelt compelled to share her religious beliefsY By challenging her clients= beliefs, she caused them concern and distressY the clientsYlodged various complaints and lawsuits against the State of Connecticut. Knight=s actions, based on her personal religious belief that she must share the Word of G-d, interfered in her performance of her duties." Judge Squatrito held that while employers may not discriminate on the basis of their employee=s religious beliefs, they are not required to tolerate speech that interferes with the proper performance of their job.

The court briefly disposed of Knight=s claim that she was denied the equal protection of the law under the Fourteenth Amendment by noting that she failed to present any evidence that she was intentionally discriminated against or treated differently than any other similarly situated individual in her position. Such evidence is necessary under well-established precedents in order for an equal protection claim to withstand a summary judgment motion.

Plaintiff Knight also alleged that her employer violated Title VII by disciplining her for her religious beliefs. Title VII forbids an employer to discriminate against an employee on the basis of religion and requires the employer to make reasonable accommodations to employees= religious practices, short of undue hardship. The court found that the state had made reasonable accommodations for Knight by allowing her to practice her religious beliefs at work, and even allowed her to pray at staff meetings. But Squatrito stated that allowing Knight to express her religious views to clients would inevitably offend some of them and compromise the purpose of her visit, not to mention possibly result in litigation against the state. "To require accommodation of the employee=s desire to evangelize to clients of differing beliefs and lifestyles would put the employer between a rock and a hard place," wrote Squatrito. On that basis, the court dismissed the Title VII claim and granted the state=s motion for summary judgment. _Elaine Chapnik_

The opinion by Judge Laro notes that married treatment is not always more favorable than single status under the code, and that courts have consistently denied constitutional challenges to the marital classifications. The court evaluated the equal protection claim using the rational basis standard, rather than a higher standard, because the tax code does not itself create an obstacle to the taxpayer=s fundamental right to marry. Further, the marital classifications at issue are not seen to affect petitioner as a member of a suspect class (homosexual), but rather "as a person who shares assets and income with someone who is not his legal spouse." "Petitioner therefore places himself in a class that includes non-married couples of the opposite sex, family members, and friends." Mueller advanced the claim that Federal tax laws specifically began to target homosexuals as a group after the enactment of the Defense of Marriage Act. However DOMA was not effective for the years at issue, thus the court declined to examine DOMA's constitutionality.

An openly gay Roman Catholic priest who alleges that he was terminated as a professor from a religiously-affiliated college because of his sexual orientation may proceed with his lawsuit against the school and its president. _Hartwig v. Albertus Magnus College_, 2000 WL 345910 (U.S.Dist.Ct., D. Conn., March 13). District Court Judge Droney ruled that the Free Exercise and Establishment clauses of the First Amendment did not bar the court from adjudicating the plaintiff=s breach of contract and emotional distress claims. Judge Droney denied the defendants= summary judgment motion as to those causes of action, but dismissed the plaintiff=s defamation and libel claims since they would require the court to choose between two conflicting religious definitions of the term "priest."

Michael Hartwig was ordained a Roman Catholic priest and assigned to the diocese of Dallas, Texas, in 1979. Eight years later, after informing his superiors that he was gay, Hartwig was placed on "a permanent leave of absence from the active ministry." Hartwig relocated to Connecticut and was hired by Albertus Magnus College as an associate professor in the college=s Department of Religious Studies and Philosophy. From 1991 to 1997, Hartwig taught various courses in the traditional day, continuing education and Master of Arts in Liberal Studies programs, and served as the Associate Dean for Continuing Education. During the 1991-1992 academic year, Hartwig introduced his "life partner," Don Baker, to faculty and members of the college administration without incident.

In June and August of 1997, the school=s president was sent copies of two articles from _The Wanderer,_ a national newspaper that focuses on issues involving the Roman Catholic Church in the United States. The articles, which discussed a trial against the Dallas Diocese concerning allegations of sexual abuse by a local priest (not the plaintiff), identified Hartwig as an "ex-priest" from the Dallas Diocese who taught at Albertus Magnus and who was "married to another man." Hartwig wrote an opinion-editorial piece that was published in the _Dallas Morning News_ concerning the articles and the trial, in which he described himself as "a priest of the Dallas Diocese (now on leave)." Shortly thereafter, Hartwig was advised that he was being relieved of all his administrative and teaching duties for falsely "publicly representing himself as a priest of the Roman Catholic Church." The college alleged that under the rules of the Roman Catholic Church, Hartwig was no longer a priest because he had been placed on a permanent leave of absence.

Hartwig alleged that he was fired because he is gay and because of the media attention of his teaching at the college which resulted from the _Wanderer_ articles and the op-ed piece in _The Dallas Morning News_. He sued the college and its president in Connecticut state court for breach of contract based on various provisions of the college faculty handbook, including a section which states that the college would not discrimination against employees on the basis of sexual orientation. He also pled causes of action for defamation, libel, tortious interference with contract, and intentional infliction of emotional distress. The defendants removed the case to federal court and moved for summary judgment, arguing that the plaintiff=s suit is barred by the Free Exercise and Establishment clauses of the 1st Amendment to the U.S. Constitution.

In the present case, Droney ruled that Albertus Magnus College is sufficiently affiliated with the Roman Catholic Church to invoke the protections of the Free Exercise Clause. The court based its decision principally on the fact that the school is sponsored by a Dominican Order of nuns, is named after a Roman Catholic saint, and is listed as a Catholic college in a definitive compilation of Roman Catholic schools. However, the court concluded that a question of fact exists as to whether Hartwig=s duties and responsibilities were primarily religious for purposes of Free Exercise Clause analysis. "The Free Exercise Clause only shields from Court inquiry employment decisions made by churches and religiously-affiliated entities with respect to employees who perform ministerial functions such as teaching church doctrine and canon law, spreading the faith, governing the church, supervising a religious order, or supervising or participating in religious ritual or worship," Judge Droney noted. Since the defendants did not offer evidence showing that the plaintiff=s duties were ministerial, the court concluded that the Free Exercise Clause did not bar it from continuing to exercise jurisdiction over the action.

Based on the foregoing test, the court concluded that the Establishment Clause was not implicated concerning the majority of the plaintiff=s claims. Although Hartwig disagreed with the school=s belief that he was no longer a priest, the heart of Hartwig=s case against the defendants was that the school=s focus on his priestly status was a pretext for his termination, and that he had actually been fired because of his sexual orientation. According to the court, this position would not flout the Establishment Clause as long as the Hartwig did not "offer a conflicting interpretation of the teachings of the Roman Catholic Church or canon law to rebut the College=s proffered religious reason for not renewing his contract."

However, based on the same test, the court dismissed the plaintiff=s defamation claims. Hartwig alleged in his complaint that the defendants had defamed him by publicly stating that he was terminated because he had misrepresented his priestly status. Judge Droney ruled that "unlike Hartwig=s other causes of action, these claims will require a trier of fact to choose between two conflicting ecclesiastical definitions of the term >priest= and thus would violate the Establishment Clause."

(Hartwig=s family is no stranger to litigation. His life partner/husband, Don Baker, was the plaintiff in _Baker v. Wade_, a test case from the early 1980s challenging the Texas sodomy law. Although the federal district court ruled that the sodomy law was unconstitutional, that decision was reversed by the 5th Circuit. The United States Supreme Court denied certiorari in 1986, right after the _Hardwick_ decision was announced. See _Baker v. Wade_, 553 F.Supp. 1121 (N.D.Tex. 1982), rev. en banc, 769 F.2d 289 (5^th Cir. 1985), cert. denied, 478 U.S. 1022 (1986).) _Ian Chesir-Teran_

In _Cox v. Denny=s, Inc._, 1999 WL 1317785 (U.S.D.C., M.D. Fla., Dec. 22), U.S. District Judge Moore granted summary judgment for the employer in a sexual harassment case brought by a transsexual employee. Mark Cox, known as M. Toni Cox, is a preoperative transsexual who has been undergoing hormonal treatments to diminish his male sex characteristics and emphasize his secondary female characteristics. Cox presents herself as a woman, although she still has male genitalia.

Cox began working for Denny=s in 1994 as a cook, and contends she was harassed on a daily basis by a male co-worker, Randy Frazier, from February until July 1997. Cox alleges that Frazier made sexual advances by feeling Cox=s breasts and groping Cox=s crotch on the cook line, and stating "I gonna get me some of that." Cox claims she rebuffed Frazier=s advances. Cox also claims Frazier brushed against her in a sexual manner and called her derogatory names, such as "fag," "punk bitch," "whore bitch," and "freak mother fucker." Cox also claims Frazier frequently complained to Cox about her failure to complete work assignments properly. Cox says she complained to Denny=s management frequently about the harassment, but management did nothing in response. Cox filed this case pro se after exhausting administrative remedies, claiming harassment on the basis of sex in violation of Title VII, naming both Denny=s and Frazier as defendants. The defendants filed a joint motion for summary judgment.

Moore rejected the defendants= argument that Cox could not bring a Title VII suit as a transsexual. Although there is ample federal appellate precedent supporting the conclusion that discrimination on the basis of transsexual status does not come within Title VII, Moore found that Cox was not alleging discrimination based on transsexual status. Rather, Cox presents herself as a woman, and claims she was being subjected to harassment as a woman. Moore found it consistent with the Supreme Court=s decision in _Oncale v. Sundowner Offshore Services, Inc._, 118 S.Ct. 998 (1998) to conclude that the viability of a Title VII sexual harassment claim turns not on the sexuality or gender of the plaintiff, but rather on the reason why the plaintiff is being subjected to harassment.

"Viewing the evidence in Cox=s favor [as required on a motion for summary judgment] and taking Cox=s allegations that Frazier made an implicit proposal of sexual activity to him [the court consistently refers to Cox as "he"] as true, an inference can be made that the alleged harassment was motivate by Cox=s sex. . . Indeed, no evidence has been presented that the alleged proposal was based on anything other than Cox=s sex." Thus, the court found that Cox=s complaint satisfied the "because of sex" part of the prima facie case requirement.

However, Moore found that Cox=s allegations, even if taken as true, did not describe the kind of severe, pervasive harassment necessary to ground a Title VII complaint. The problem here was that some of the harassing activity Cox alleged was not really sexual in nature, and Cox had admitted as much. Moore characterized as <166>the most serious incident among Cox=s allegations" the instance when Frazier groped Cox=s breasts as part of a sexual come-on, but found that as serious as this was, it was an isolated, unrepeated incident, and that once Cox rebuffed Frazier, Frazier did not try to make any further sexual advance. This is insufficient to support a finding that Cox=s terms and conditions of employment were affected. Thus, the court entered judgment for Denny=s on Cox=s Title VII claim, and Moore refused to continue exercising jurisdiction over supplemental state law claims that Cox had filed now that the federal question was gone from the case, finding that "these claims are better resolved in state court." A.S.L.

On March 24, the United States District Court for the Eastern District of Texas delivered several repeated blows to a Tyler, Texas, man=s same-sex sexual harassment suit against a nationally known air conditioning corporation. _Mims vs. Carrier Corporation_, 2000 WL 340435. In a good academic decision detailing the status of sexual harassment law in the Fifth Circuit, summary judgment was granted to the defendant corporation on all claims including hostile work environment, discrimination and emotional distress.

Mims further alleged that due to his complaint, Chauvin began to retaliate against him by <169generating and participating in unreasonable reprimands" of him including Mims= aggressive physical removal from a Carrier facility by Chauvin resulting in bruising. Chauvin avers characterizing the removal as an escorting of Mims out of the building because he was disturbing other workers. Mims contends that this retaliation resulted in a denial by Chauvin to Mims' request for light-duty work, Mims' suspension for one week without pay on one occasion and Chauvin=s refusal to permit Mims to work in the Tyler, Texas facility for five months in 1999. Mims later filed an EEOC complaint against Chauvin and an HR director as well as a criminal complaint against Chauvin for criminal assault.

Mims filed this case in July 1999 seeking damages, costs and attorney=s fees for sexual harassment/hostile work environment, discrimination and emotional distress. Chauvin counter-sued alleging malicious prosecution and slander. Carrier and defendant Chauvin moved for summary judgment on all of Mims= claims and Chauvin=s counterclaim, respectively.

District Judge Steger methodically explained why he found no genuine issue as to any material fact and granted Carrier=s summary judgment motion. Steger found that Mims failed to state a prima facie case of sexual harassment because he made no allegations as to discrimination based upon his sex as male. Mims states the harassment was because of his perceived sexual preference which is, as with actual sexual preference, not a protected class under Title VII of the Civil Rights Act. The court accepted arguendo that the harassment was unwelcome, but found the harassment, although concerning sex or being of a sexual nature, was not because of Mims being male. Carrier correctly and successfully defended with the ultimate same-sex sexual harassment case, _Oncale vs. Sundowner Offshore Services, Inc._, where the Supreme Court ruled that same-sex sexual harassment is possible if the harasser is homosexual and exhibited sexual desire towards the victim, that a general hostility toward the presence of members of the gender in the workplace is motivating the harasser, and the comparative evidence of how the harasser treated members of both sexes. Here, Mims states that he is not a homosexual, and he believes that his harassers are not, either, and makes no allegations to support an _Oncale_-type sexual harassment claim.

For the sake of argument, Steger further explains that Mims fails to meet the other elements to a prima facie case of discrimination under Title VII by finding that the harassment was not sufficiently severe to alter the terms and conditions of Mims= employment. "The teasing was in bad taste. However, Title VII is not a guardian of bad taste...[b]ut the teasing could not reasonably be perceived as severely offensive or abusive, especially considering that plaintiff himself participated in the >joke.=" Steger ruled there was no evidence showing that the harassment was anything more than isolated incidents of simple teasing and offhand comments. Moreover, Mims offered no allegation that any term or condition was affected by the harassment. As a sympathetic bone thrown to the plaintiff, the court did say that if Mims did satisfy the other elements for sexual harassment, it could find Carrier vicariously liable for the harassment because there was no evidence support that Carrier made efforts to stop it or reprimand the aggressors.

Turning to the last of Mims= claims, the court ruled that defendants= actions did not rise to the level of intentional infliction of emotional distress under Texas law because Defendants= alleged acts, if assumed true, were not "atrocious" and did not "shock the conscience" under Fifth Circuit precedents.

As the coup-de-gras of this courtroom spanking of Mr. Mims (and at a time when he surely wished he could walk away and forget this mess), the court found genuine issues of material fact regarding Mims= probable cause to sue, Chauvin=s innocence and Mims= malice as to allow Chauvin=s malicious prosecution state law claim to go forward. _K. Jacob Ruppert_

While acknowledging that under the Supreme Court=s _Oncale_ decision, same-sex harassment could be actionable, Judge Manning observed that Dandan had a burden to allege facts supporting the proposition that he was harassed because of his sex, and Manning found the burden was not met. "While the comments he was subjected to are vulgar and offensive, there is no evidence that they were directed at Dandan because he is male. Rather, the only reasonable inference is that the derogatory and bigoted comments inflicted upon Dandan were due to his co-workers= perception of his sexual orientation. Dandan contends that none of his co-workers actually knew his sexual orientation, but only speculated that he is homosexual. Therefore, he argues, if the co-workers do not know his sexual orientation, the verbal abuse can only be attributed to the fact that he is a man. In fact, whether Dandan=s co-workers knew or only suspected what his sexual orientation is makes no difference where Title VII is concerned."

Manning also found no "precedential underpinning" for Dandan=s further contention that he was harassed because "he does not match-up to his co-workers= expectations of what a man should be or how he should life his life," and therefore should be considered sex-based harassment. "The comments directed at Dandan do not reflect that his co-workers= bore any hostility against him because he is male."

However, on the retaliation claim, Manning rejected Radisson=s argument that because the direct Title VII claim had failed, this derivative claim must fail as well. Manning found that there is precedent to support the contention that so long as Dandan had a good faith belief that the harassment directed against him violated his rights under Title VII, his filing of a Title VII claim was protected activity and the company could not retaliate against him for filing the claim. "The critical inquiry in reviewing a retaliation claim >is good faith and reasonableness, not the fact of discrimination,=" wrote Manning, quoting a 7^th Circuit opinion. "Here, the constant vulgar and offensive language directed at Dandan created a reasonable basis for his allegations. Accordingly, Dandan=s claim was in good faith and, therefore, was statutorily protected."

Further, Dandan=s showing that he was given an unduly long suspension for a trivial offense "sufficiently alleges an adverse employment action. Dandan has also shown a causal link between his complaints of harassment and his suspension. . . A jury could reasonably infer that the length of the suspension was related to Dandan=s complaint to the EEOC." Thus, the court granted the employer=s motion for summary judgment as to the harassment charge, but denied the motion as to the retaliation charge. A.S.L.

Jeffrey Cash was hired as a nurse=s aid in the Murray Development Center, a home for developmentally disabled people in Centralia, Illinois. For seven years, there were no problems with his employment or his life; he owned his own home, where he lived with his wife and children, owned several cars and had a power boat that he used for lake fishing in Southern Illinois. In the summer of 1995, he invited a fellow employee, Donny Hodge, for a Saturday fishing trip on his boat. They spent the entire day fishing, then returned to Hodge=s house. Since Cash=s wife and children were away visiting grandparents for the weekend, Hodge invited Cash to stay overnight, and they continued their fishing trip on Sunday. Hodge is an openly-gay man, and was known as being gay in their workplace. When people at work found out that Cash had stayed over Saturday night at Hodge=s place, rumors began to fly that the two men were having an affair.

"Interestingly," wrote District Judge Evans for the panel, "the story did not cause the kind of trouble one might expect. Rather than enduring verbal abuse about his alleged homosexuality from insecure, macho male colleagues, Cash began to take flak from a group of female co-workers about his perceived failure to emerge from the closet and embrace his homosexuality. While this scenario might not fit neatly into an established cannon of bigotry B a pack of women berating a man for not coming out of the closet is a distinctly modern phenomenon B Cash=s tormentors made the next year of his life at work rather miserable. They laughed at Cash while simulating fellatio or male masturbation, called him a >he/she= or >the evil one,= and bared their breasts and shook them at him while laughing. One woman even rubbed her bare breasts against Cash=s arm following a union meeting. Over time, Cash became short-tempered, paranoid, and depressed. He eventually sought psychiatric counseling, which both he and his therapists say stemmed from his stressful working conditions." And he filed suit for hostile environment harassment under Title VII.

After trial, District Judge Riley ruled against Cash, finding that the employer acted appropriately in response to Cash=s complaints about harassment, that the harassment in any event was insufficiently pervasive to state a Title VII claim, and that it was not directed at Cash because of sex. In his untimely motion for a new trial, Cash alleged that the trial court had erroneously excluded key evidence and had failed to consider a sexual stereotyping theory. Although Cash=s motion was late, the trial judge evaluated it under Rule 59 but found no basis for granting a new trial.

The 7^th Circuit panel held that the denial should be evaluated under Rule 60(b), using the abuse of discretion standard, and found that Cash=s arguments "cannot be shoe-horned into grounds for Rule 60(b) relief. The rule is not an alternate route for correcting simple legal errors." In this case, Cash "simply tripped over the time clock and wants to be able to appeal as if he did not." (He also missed the deadline for filing an appeal on the merits of the case.)

The U.S. Supreme Court heard oral argument on April 26 in _Boy Scouts of America v. Dale_, an appeal of the New Jersey Supreme Court=s ruling finding that the Boy Scouts of America violated the state=s public accommodations law by dismissing James Dale as an assistant scoutmaster solely on the basis of his sexual orientation. (The N.J. ruling is reported at 734 A.2d 1196, and is unanimous.) In its opinion, the New Jersey court found that applying the state=s law to the Scouts did not violate any constitutional rights of free association of the Scouts. The Supreme Court granted certiorari on this constitutional question. Evan Wolfson, senior staff attorney and Marriage Project Director at Lambda Legal Defense Fund is lead counsel for Dale, and argued the case in the Supreme Court. Reports of the oral argument suggested that many of the Justices find this a difficult case; the bench was hot and fully engaged, and it appeared that several members of the Court had not yet made up their minds how to conceptualize this case in terms of analogies to prior First Amendment expressive association precedents. The heart of Dale=s argument is that the Scouts, as a large national organization heavily entangled with government entities, including public schools, cannot hide behind the fiction that it is merely a "private club" in order to avoid the strong public policy concerns of New Jersey=s anti-discrimination statute, and that an anti-gay "message" is not an intrinsic part of the Scouts= organizing principles. The Scouts argue that under the First Amendment they have a strong right as a private, non-commercial membership organization to define their organizing principles and to base membership decisions on congruence with those principles. Nationwide press coverage of the argument was detailed and intense. An edited version of the transcript was promptly posted to the N.Y. Times website, and the full transcript should be available soon on Westlaw and Lexis. * * * In an ironic commentary on the controversy, the London _Daily Telegraph_ (April 28) noted that the British Scout Association, the precursor of the U.S. organization, does not ban gay men and boys from participating or serving as leaders. "In fact," observed the newspaper, "there is only one bar to involvement in the British Scout Association - paedophilia; and only one to promotion to a leadership position - >the avowed absence of religious belief= (though any kind of religious belief will do)."

Parting company from several other judges in the Southern District of N.Y., U.S. District Judge Charles Brieant ruled on March 21 in _McCavitt v. Swiss Reinsurance America Corp._, 2000 WL 306710, that N.Y.=s off-duty conduct law, which protects employees from discrimination for engaging in off-duty recreational conduct, does not apply to an employee=s dating activities. In this case, the plaintiff claims to have been denied a promotion and then terminated because he was dating another employee in the company, and alleges a violation of the law. While noting that two other district judges had found dating activities to be encompassed within the protected activity, Judge Brieant decided that he was bound by a New York Appellate Division ruling, _State of N.Y. v. Wal-Mart Stores_, 621 N.Y.S.2d 158 (3^rd Dept. 1995), which held that an employer=s policy against cohabitation of employees was not against the law. Brieant observed that a district court does not have authority to certify questions to the New York Court of Appeals, and also mentioned that if the case were appealed, he would expect the 2^nd Circuit to certify the question for an authoritative ruling from the state=s high court.

The Montana Supreme Court upheld the grant of a petition for temporary investigative authority and protection services for two children on evidence of the mother=s unfitness in _Matter of B.P. and A.P., Youths in Need of Care_, 995 P.2d 982 (Feb. 15, 2000). Among the litany of problems cited by the court as justifying granting the petition, one was that the mother had emotionally abused the children by her "attempts to sabotage their visits with their father and to continue to denigrate the father=s homosexuality to the children." The court does not discuss this issue in any further detail.

Lambda Legal Defense announced April 14 that it had reached a settlement in _Beaton v. Vinje Realty Corp., F.J. Kazeroid Realty Group, Inc._, a matter pending in New York Supreme Court, Kings County, concerning alleged sexual orientation discrimination by a landlord and a real estate broker. The broker allegedly refused to rent an apartment to Lambda=s client, a gay male couple, because the owner of the apartment didn=t want to rent to gays. The broker backed out of the rental deal after accepting the men=s deposit, assertedly on instructions from the owner of the building. Lambda=s settlement is with the real estate broker. The exact terms are confidential, but they include a monetary settlement with Lambda=s clients, the institution of non-discrimination workshops for its employees by the real estate firm, and a requirement that all employees of the firm sign a statement attesting to their knowledge and understanding of the non-discrimination requirements under New York City law. The case against the landlord will continue, as it is not part of the settlement agreement. Lambda staff attorney Marvin Peguese represents plaintiffs Gabriel Beaton and Philip Alberti. _Lambda press release_, April 14.

U.S. District Judge Denny Chin (S.D.N.Y.) has issued a discovery ruling in _Curry v. Morgan Stanley & Co._, 2000 WL 436702 (April 22), the notorious case in which a former Morgan Stanley associate (who is avowedly heterosexual) claims he was discriminatorily discharged after nude photos taken of him in college appeared on the cover and inside a gay male sex magazine. Morgan Stanley=s defense for the discharge centers on evidence that Christian Curry engaged in repeated expense account fraud. The case is now in discovery, and Curry has requested expense account records for each of the individual named defendants, all of whom are senior executives of Morgan Stanley, in order to show that what he is alleged to have done is not out of the ordinary within the firm. Judge Chin had previously ruled that Curry could get expense account records for Morgan Stanley associates who were employed at his level, and if he could show based on those records that there was a "corporate culture" of expense account fraud being tolerated for others at his level, he might then be able to get the senior executives= records as well. In this opinion, Chin finds that Curry failed to establish that his own pattern of fraud was typical or tolerated for other associates at his level, and denied Curry=s renewed demand for the executive records. Chin=s opinion describes in details the incidents of alleged fraud and the explanations provided by counsel for Morgan Stanley as to why apparently fraudulent expense reimbursements were not. The whole thing makes fascinating reading.

A California appeals court has substantially affirmed a decision by Los Angeles County Superior Court Judge Kathryne A. Stoltz requiring the state=s Board of Prison Terms to reconsider its decision that Robert Rosenkrantz should be denied parole from the balance of his 15 year to life prison sentence for second degree murder. _In re Robert Rosenkrantz_, 2000 WL 490787 (Cal. App., 2^nd Dist., April 27). Rosenkrantz shot and killed Steven Redman who, together with Rosenkrantz=s brother, had "outed" him at a high school graduation party, leading to Rosenkrantz=s then-homophobic father banning the teen from his home. Rosenkrantz had tried to get the two older teens to disavow their statements about his homosexuality in order to achieve a reconciliation with his father, but Redman refused, even when Rosenkrantz confronted him with an Uzi automatic weapon. Laughing, Redman called Rosenkrantz a faggot, and died in a blast of gunfire. Rosenkrantz later turned himself in, and was convicted by a jury. The parole board has taken the position that the deliberate nature of his cold-blooded murder of Redman makes him ineligible for parole, but Rosenkrantz points out that he has been a model prisoner, has pursued higher education while in prison, is reconciled with his family, and committed the crime under severe emotional strain provoked in part by Redman. The courts are now siding with Rosenkrantz, but he will still face the ultimate hurdle of California Governor Davis who has vowed to reject all parole applications by convicted murderers, according to an April 28 report in the _Los Angeles Times_.

Rejecting a "homosexual panic" defense, a Roanoke, Virginia, jury convicted Michael E. Harris of first-degree murder for stabbing a man whom he claimed made a sexual pass at him. The jury recommended a life sentence, which was imposed by the Roanoke Circuit Court. Harris had testified that after breaking up with his wife, he went to the home of his friend Paul Wright for a place to stay. Wright allowed him to sleep on the couch. Harris claims he awoke to find Wright groping him, and reacted by stabbing him to death. The prosecuting attorney, Donald Caldwell, argued that this story was invented, and said that the jury had repudiated "the homophobia defense: He=s a homosexual, he touched me, and I had to defend myself." _Roanoke Times & World News_, April 7. A.S.L.

Albuquerque, New Mexico, Mayor Jim Baca signed an executive order on March 8 extending eligibility for medical benefits coverage to domestic partners and dependents of city employees. The order was not publicly announced at the time, and was first reported in the _Albuquerque Journal_ on April 12, stirring some controversy in the city council. Baca told the _Journal_, "It will give insurance coverage to many people and children who don=t have it. Why would anybody not want those folks to have insurance?" _Washington Blade_, April 21.

A long-running lawsuit seeking domestic partnership benefits at the University of Pittsburgh hit a major snag on April 20 when the trial judge, Robert Gallo, ruled that the University=s health plan did not discriminate on the basis of sexual orientation because all unmarried couples, whether opposite-sex or same-sex, were similarly disqualified from benefits eligibility. The judge also ruled that the Pittsburgh Commission on Human Relations has no jurisdiction over the case, because of a law enacted last November exempting state universities and colleges from being required to provide domestic partnership benefits under local laws. In an April 23 article reporting on the decision, the _Harrisburg Sunday Patriot-News_ noted that three other universities in Pennsylvania -- the University of Pennsylvania, Swarthmore College, and Dickinson College -- provide domestic partnership benefits plans for their employees. _Pittsburgh Post-Gazette_, April 21.

The Atlanta, Georgia, City Council has amended the city=s antidiscrimination policy to add "gender identity" to the protected classes under the policy. Mayor Bill Campbell signed the amended ordinance, which passed the council by a 13-0 vote on March 6, on March 14. _Washington Blade_, April 7.

On April 4, the Iowa House of Representatives voted 55-43 in a straight party-line vote to repeal Governor Tom Vilsack=s executive order banning discrimination on the basis of sexual orientation or gender identity by the executive branch of the Iowa government. The measure had previously been passed by the Senate by a 28-21 vote. According to the _Des Moines Register_ (April 5), "Moments after the House vote was recorded, Vilsack made good on his promise to kill the legislation, delivering a stinging veto message before the red neon vote tally had even been cleared in the House chamber. Supporters do not have enough votes to override the veto." Republican leaders purported to base their opposition to the executive order on a principled ground of separation of powers, disclaiming that they were engaging in gay-bashing. Vilsack said, "I am profoundly disappointed that the Legislature has chosen to invest valuable state resources to draft, debate and pass this bill." The actual veto didn=t take effect until the legislature formally presented the bill to the Governor, so this was a sort of preemptive veto.

Mississippi=s Senate voted April 19 to approve a bill that bans adoptions of children by same-sex couples. The measure had previously been passed by the House, and Governor Ronnie Musgrove had already said he would sign the bill if it passed. Signing was expected during the first week of May. Mississippi thus follows Utah in formally legislating against adoptions by same-sex couples, although neither state technically bans individuals from adopting based on their sexual orientation. The only state to maintain such a categorical ban is Florida. _New Orleans Times-Picayune_ (Associated Press Report), April 20; _Baton Rouge Advocate_, April 21. The Utah statute was recently adopted to codify some administrative regulations; the regulations are already the target of a lawsuit, _Utah Children v. Utah State Board of Child and Family Services_, Civ. No. 990910881, now pending before District Judge Glenn Iwasaki in the Utah 3^rd Judicial District Court in Salt Lake County. The complaint will likely be amended to attack the statute as well as the rules it codifies.

When the Royal Oak, Michigan, city commission focused on the problem of overcrowding and rowdy behavior at two bars in the city, they discovered in a review of legislative records that there was still on the books a city ordinance prohibiting licensed liquor establishments from allowing homosexuals to meet on their premises. Although nobody had heard of this law for many years and it wasn=t being enforced, its mere existence was an embarrassment, and on April 19, the commission voted to repeal it. The 1965 measure had been copied directly from the then-current state liquor code, which was, unfortunately, typical of such measures across the country. Some landmark gay rights litigation in New York and California had involved challenges (ultimately successful) to the constitutionality of such ordinances. _Detroit News_, April 20.

Anti-gay groups seeking a referendum to repeal the gay rights law passed in Miami-Dade County, Florida, in 1998, have fallen short in their efforts to get petition signatures by the deadline for this year=s election. _Sun Sentinel_, April 11. A.S.L.

In March, Arizona State Representative Steve May received a letter from the Army asking him to resign his commission in the Army Reserve on grounds of homosexuality, and attaching a resignation letter for him to sign and return. Ironically, the letter came one day after May participated in a training session on chemical weapons defense for soldiers headed to assignment in Kosovo. May, according to an April 28 article in the _Arizona Republic_, "repeatedly has been ranked as one of the Army=s top young officers in his service as a chemical weapons defense officer," and his commanding officer wrote that he has "unlimited potential to be an outstanding asset as a future officer and leader." The Republican legislator has vowed not to quit, and to contest the Army=s position that his speaking of his sexual orientation during a debate on the floor of the Arizona House constitutes a violation of the "don=t ask, don=t tell" policy. May contends that he has never spoken about his sexual orientation while on active duty in the Reserves, and that it would be unconstitutional for the Army to require him to refrain from speaking about it while off-duty (and certainly while participating as an elected official in a legislative debate). Although it was generally known that May was gay when he was running for the legislature, he did not make it an issue or speak about it as part of his campaign. An Army Reserve spokesperson stated that a board will be convened sometime in the future to determine May=s fate.

Lest we in the English-speaking world become complacent about the freedoms we have won, it bears noting that a court in Qunfuda, Saudi Arabia, has sentenced nine young Saudi men to more than 2,000 lashes and at least five years in prison for "deviant sexual behavior," according to a report in the _Globe & Mail_ (April 17), a Canadian national newspaper. There was no clarification in the report about what was meant by "deviant sexual behavior," but past reports from Saudi Arabia suggests that it probably involved homosexual conduct. [Of course, we must recall that 17 U.S. states still impose criminal penalties for "deviant sexual behavior" as well, so we shouldn=t be too smug about this report, but we haven=t heard any reports lately of lashings as a form of punishment in the U.S.]

Controversy broke out late in April in Canada over a $185,000 (Canadian dollars) government-funded survey of gay people in Canada to document gays and lesbians as a "cultural community." The _Ottawa Sun_ (April 27) reported that a lawsuit between Equality for Gays and Lesbians Everywhere (EGALE), Canada=s national gay rights organization, and two researchers, Stephen Samis and Sandra Goundry, over the continuation of the study had recently been resolved. But editorialist and electronic news commentators raised a hullabaloo over whether government funds should go towards such research when it came to light that EGALE had applied for additional funding for the work.

A bill that would extend to same-sex couples the same rights that are enjoyed by unmarried opposite-sex couples in Canada (a status akin to common law marriage for most legal purposes) has passed its third reading in the Canadian Parliament=s House of Commons, and will now move to the upper house for consideration. Bill C-23 still preserves some grounds of distinction between same-sex couples and married couples, but will open up benefits, entitlements and rights under dozens of laws. _London Free Press_, April 13. However, the Ontario lesbian, identified in Court papers only as "M," who brought the case to the Canadian Supreme Court that inspired the passage of this law, contends that the law preserves enough distinctions to defeat the Court=s mandate of full-equality, and announced through her attorney, Martha McCarthy, that she will apply to the Supreme Court to reopen the case in order to consider her equality challenge to the new law. _Globe and Mail_, April 8.

An anti-gay group led by Rev. Ken Campbell published an advertisement in the _Globe and Mail_ protesting the Canadian Supreme Court=s latest gay rights decision. Philip Shea, a Toronto man who found the ad to be an offensive incitement against gays, filed a complaint against the newspaper with the Ontario Human Rights Commission. The Commission rejected the complaint, with Commissioner Keith Norton stating that although the ad "is highly offensive, it is nevertheless an expression of opinion that does not fall within the purview of the Code." _Toronto Star_, April 7.

A bill to lower the age of consent for gay male sex from 18 to 16 (and thus attaining age parity with heterosexual sex) has finally survived a reading in the House of Lords in London. After the Blair government made clear that it would invoke the rarely-used Parliament Act, under which a bill that has passed the Commons repeatedly and been stymied several times in the Lords can become law without the Lords= assent, opponents called off their campaign to oppose enactment. _Daily Mail_, April 12.

At its May 5 annual dinner, the Massachusetts Lesbian & Gay Bar Association honors Susan M. Murray and Beth Robinson, plaintiffs= attorneys in the Vermont marriage case, and David A. Mills. The keynote speaker for the event is the Honorable Suzanne V. DelVecchio, Chief Justice of the Massachusetts Superior Court.

Robert Sullivan, who suffers from AIDS, was arrested on an outstanding bench warrant on March 8, 1996. At the time, he was on a protease cocktail regimen, and so informed the jail personnel, requesting continued access to his medications. Jail health officials were aware that a gap in administration of this medication can lead to development of drug resistance causing permanent harm to an HIV+ individual, but nothing was done for a period of two days, allegedly because the particular combination of drugs Sullivan was taking was not available in the jail=s pharmacy, and it took two days for the screwed-up system in Pierce County to authorize someone to pick up Sullivan=s medication and get it to him. Sullivan alleged that his viral load "skyrocketed" and that the cocktail he was taking became ineffective as a result of the gap in treatment. He sued under 42 U.S.C. sec. 1983, claiming a violation of his constitutional rights. (As a pre-trial detainee, his rights would be derived from the 14^th amendment due process clause rather than the 8^th Amendment=s ban on cruel and unusual punishment, but according to the court the same standard is used for both types of claims.)

The district court granted summary judgment to the county, finding that Sullivan=s allegations could not support a finding of deliberate indifference to his health needs by the county officials, and also could not give rise to an inference of a county policy of deliberate indifference. Reversing this determination, the court of appeals panel found that there was evidence that the jail officials were aware of Sullivan=s "dire need" for uninterrupted medication, that "strict compliance" with his treatment regimen was essential, and that the health officials, knowing that these drugs were not in their pharmacy and that, on that ground, they had the authority to "turn him away" from being jailed, nonetheless admitted him to the jail.

Noting that jail physicians have "wide discretion in determining what constitutes appropriate treatment," the court found that nonetheless "the treatment Sullivan received was far from the medical norm." Specifically, the court found that the County=s Attending Physician had stated, contrary to common knowledge about the urgency of treatment, that there was "no urgent problem" and had taken "no further action to make sure that Sullivan received appropriate treatment." Indeed, it was two days before another jail official sought and obtained permission for Sullivan=s family to bring his medications to the jail. Finding that a genuine issue of material fact exists as to the harm resulting from this delay, the panel held that summary judgment was inappropriate on this record.

Further, the panel rejected the district court=s ruling on the issue of qualified immunity, finding that if "deliberate indiffference" to a jail inmate=s medical needs is found, then qualified immunity would be precluded, quoting a 1992 9^th Circuit opinion to the effect that "prison officials who deliberately ignore the serious medical needs of inmates cannot claim that it was not apparent to a reasonable person that such actions violated the law."

Finally, the county had argued that it B as distinguished from individual county employees B could not be held liable to Sullivan in the absence of a showing of an official policy or custom to deprive jail inmates of their medication. The court of appeals rejected the district court=s conclusion that Sullivan=s evidentiary allegations fell short here. The court observed that the County had stipulated in settling a class action suit that the correctional facility=s policies violated the constitutional rights of inmates. "Those facts were all a part of the record before the District Court in this case," wrote the appeals panel, so summary judgment on this issue was also inappropriate.

In light of the potential importance of this opinion, the panel=s decision to designate it as unpublished and thus subject to restrictions on citation as precedent within the 9^th Circuit is inexplicable. A.S.L.

In an unofficially published opinion, the U.S. Court of Appeals for the 6^th Circuit ruled on April 3 that a district court in the Eastern District of Michigan erred by granting summary judgment to the employer in an HIV-discrimination claim, as there was an issue of material fact concerning the employer=s justification for the discharge. _Archer v. Mesaba Aviation Inc._, 2000 WL 376677 (not officially published).

In January 1997, Archer and a travel companion flew on Mesaba on a vacation trip. The flight attendant claims that while the lights were out in the plane, Archer=s companion was performing oral sex on him. The flight attendant reported this to the captain, who decided not to take any action, since the flight attendant had only said he thought that was what was going on. The flight attendant subsequently filed a written report, and Archer was discharged after a perfunctory investigation.

Archer claimed that the company wanted to get rid of him because he was HIV+, filing suit under the Americans With Disabilities Act, the Vocational Rehabilitation Act, and Michigan=s disability discrimination law. The district judge granted summary judgment to the employer without producing a written opinion.

Writing for the court, Judge Clay found that Archer had alleged all the requisites of a prima facie case of disability discrimination, and the employer had articulated a non-discriminatory reason for the discharge, the oral sex incident on the flight. However, Archer staunchly denied that he and his companion had engaged in oral sex during the flight, and also pointed out various factual discrepancies in the flight attendant=s report. Furthermore, it appeared that the company had prepared its termination letter to him before confronting him with any charges. The court found that Archer had "raised a genuine issue of material fact as to the basis upon which he was terminated," and thus made a sufficient showing that the employer=s articulated reason for the discharge was pretextual B at least, sufficient to withstand a motion for summary judgment.

The court rejected Mesaba=s argument that even if the charges were not true, it could not be held liable because it acted based on an honest belief that they were true. Clay asserted that in order to have an "honest belief," the employer "must establish its reasonable reliance on the particularized facts that were before it at the time the decision was made." Here, the employer prepared its discharge letter before giving Archer a chance to respond to the charges, and at the time the documents in the employer=s possession included conflicting statements on various details by the flight attendant, the captain and the first officer. "Mesaba=s acts are all the more questionable in light of the fact that Plaintiff was never informed of the allegations of which he was accused. . . While an employer is not required to turn over every stone, we do not believe that Mesaba demonstrated its reasonable reliance on particularized facts."

Thus, it was error to grant summary judgment. In making its remand, the court noted that the district court still needed to inquire into jurisdictional issues under the Rehabilitation Act (i.e., whether Mesaba received any federal money), and ordered the court to reconsider whether any of Archer=s supplemental state law claims should also be reinstated. In a concurring opinion, District Judge Bell (sitting by designation) expressed some discomfort at having to review a summary judgment decision when the trial court did not produce a written opinion with factual findings.

The 6^th Circuit recommended against publication of the full text of this case, without explanation. Perhaps the court wishes to spare Archer the public exposure, but then one would question why it released the opinion to LEXIS and Westlaw. Perhaps this is an example of the 6^th Circuit=s squeamishness about full-text official publication of cases involving gay people, which has reared its head in the past (see, e.g., _Dillon v. Frank_, 952 F.2d 403 (6^th Cir. 1992) (table), unofficially reported at 58 Fair Emp. Prac. Dec. (BNA) 144). One never knows. A.S.L.

In _Estate of Amos v. Vanderbilt University, Inc._, 2000 WL 336733 (Tenn Ct. App., March 31), a case that arose from an initial claim of medical malpractice that caused the birth of a child with HIV who died shortly thereafter, the Tennessee Court of Appeals made two significant decisions limiting a hospital=s liability to remote third parties and for patients= suffering . First, while a hospital may have a duty to warn the recipient of a blood transfusion made before the advent of reliable HIV tests of the possibility of HIV infection later on, this duty would not flow to all third parties with whom the transfusion recipient might have intimate contact later in life. Second, in circumstances where claims of negligent infliction of emotional distress were advanced in a medical malpractice case, no damages for emotional distress could be awarded absent expert testimony on the distress inflicted.

The jury found Vanderbilt negligent, resulting in damages relating to the infant=s medical expenses in the sum of $32,000, and awarded damages for the negligent infliction claims of $2.7 million to the estate of Ms. Amos, and $1.6 million to Mr. Amos. Vanderbilt appealed.

The court of appeals ruled that under the circumstances, expert testimony should have been required to prove negligent infliction which flowed from the negligence of Vanderbilt. No such showing was made, and because it was not Vanderbilt=s negligence which resulted in Ms. Amos=s

infection with HIV (the transfusion occurred _before_ the HIV tests were developed), no damages could be shown without such testimony. The damage award for negligent infliction of emotional distress in favor of Ms. Amos was stricken, and the case was remanded for further proceedings consistent with the court=s opinion. It is unclear whether this decision would preclude the trial court from retrying the issue of negligent infliction of emotional distress, this

time with expert testimony. (Then again, there isn=t much which is clear in this opinion.) _Steven Kolodny_

Rebecca Hussey worked for the defendant as a registered nurse beginning in February 1990. Her duties included treatment of AIDS patients. Her prior employment as an Army Reserve nurse and a nurse in a Nursing Home had allegedly not brought her into contact with AIDS patients. While working for the defendant, she also held part-time employment with two other health care organizations, for neither of which she worked with AIDS patients. She developed pneumonia in December 1994 and was found to be HIV+ during her treatment for the pneumonia. She continued to work for the defendant until December 1995, when she became too ill to continue, and died from AIDS complications in February 1996. During her final illness, she reputedly made a statement that she had injected herself with HIV. Various witnesses from her family and co-workers testified about different incidents at earlier times when Rebecca had claimed to have sustained needle-stick injuries, but the documentary records were inconclusive and contradictory as to when such incidents might have occurred. The compensation claim was filed by her father as executor of her estate many months after her death, naming the company carrying the defendant=s workers compensation coverage at that time as the responsible carrier, but this company had only begun to provide coverage in October 1994, and it seemed obvious that Rebecca=s HIV-exposure must have occurred earlier than that, so the administrative judge for Kentucky workers compensation substituted the prior carrier on the claim.

The ALJ rejected the hospital=s argument that this was a self-inflicted injury and thus not compensable, finding that Rebecca was in a highly emotional state and in the advanced stages of AIDS at the time, and had been receiving in-patient care at a mental hospital because of her delusionary state, so this statement would not be credited.

Finally, Emberton found that the evidence clearly indicated that whatever exposure led to Rebecca=s infection with HIV, it occurred before October 1, 1994, the date when the defendant changed insurance carriers, thus the former carrier was the responsible carrier for this claim. A.S.L.

Wyoming Supreme Court Upholds Denial of Workers Comp Coverage for HIV Tests Taken by Cop Who Was Exposed to Arrestee=s Blood

In a strange sort of pettifogging decision, the Wyoming Supreme Court unanimously affirmed a decision by a Workers Compensation hearing examiner to deny a police officer=s claim for coverage of the costs of HIV and Hepatitis B testing after the officer was exposed to the blood of a person he was arresting. _Williams v. State of Wyoming_, 2000 WL 378259 (April 14).

Michael Williams, a Rawlins police officer, was called to assist with the arrest of a man who was battering some other people. In the course of the incident, Williams sustained some cuts on his hands and was exposed to the arrested man=s blood. He was instructed by his supervisor to get tested for HIV and HBV. Williams went to the hospital and had the tests performed. He tested negative. He then sought reimbursement for the costs of the tests. In completing his claim form, he described his injury as follows: "came in contact with blood while arresting a subject whose hands were covered with blood." The Workers Comp division denied the claim, stating that "contact with blood" was not a compensable injury. Williams objected, and a hearing was held, at which the examiner ruled similarly and denied the request for payment. The matter was certified to the state supreme court.

The court, in an opinion by Justice Thomas, carefully parsed the language of the statute and found that, technically speaking, the Division and the hearing examiner were correct. Williams argued that he had suffered additional wounds and scrapes on his hands while apprehending the suspect, and that taking HIV and HBV tests were indicated as part of the medical follow-up for blood exposure to somebody who had open wounds on their hands. The court conceded that this probably was correct, but noted that in describing his injury in his claim form, Williams never mentioned the cuts and scrapes. (No, this opinion was not written by Franz Kafka or Charles Dickens!) _The claimant has the burden of following the procedures and rules contained within the Wyoming Worker=s Compensation Act and the Department Rules and Regulations before he is entitled to worker=s compensation benefits," Thomas wrote. "We hold the only injury claimed in Williams= report, the exposure to unidentified blood with some future potential for illness or disease, does not constitute an >injury= under the Wyoming Worker=s Compensation Act."

Gary Hamner was working as an RN in the Acute Adult Psych Department at Community North Hospital on January 18, 1997. Another nurse called him for assistance in dealing with a patient, D.J., who had been found lying non-responsive on the floor. D.J. was HIV+. Hamner and other patients attempted to resuscitate him, without success. Hamner=s supervisor requested a follow-up report. Hamner submitted a written report that was extremely critical of the hospital staff, both regarding availability of necessary equipment and the responses of staff members to the emergency situation. Hamner=s report did not mention that the patient was HIV+, or make any charge that the patient=s HIV-status had anything to do with the quality of his treatment. However, after Hamner submitted the report, he was discharged. The story that went around was that Hamner was discharged for measuring a psychiatric patient=s penis!

Hamner sued under the ADA, and also made a state tort law defamation claim with regard to the penis-measuring story. (The patient in question later executed an affidavit stating that Hamner had not measured his penis.) Hamner=s ADA theory was that he was discharged in retaliation for his protest about discriminatory treatment of D.J. The problem, however, was that his report never mentioned D.J.=s HIV+ status, and, as District Judge Tinder pointed out, it is difficult based on Hamner=s various factual allegations and deposition statements to put together a plausible retaliation case. There was no evidence, for example, that the lack of appropriate equipment for the resuscitation had anything to do with D.J.=s HIV-status, or that the failed efforts of staff were motivated by that either.

As to the defamation claim, the court found that qualified privilege protected the hospital regarding internal communications, and even the statements made to two health care professionals who were not employed by the hospital (but who had some authority with respect to the issue of Hamner=s continued employment) were protected under a state law regarding responses to inquiries about employees. Although it turned out that the penis-measuring story was false, Hamner could not plausibly allege that the hospital staff members made those statements with knowledge or reckless disregard of its falsity. Indeed, the patient=s psychiatrist had warned the staff against asking the patient about the incident, for reasons of the patient=s mental health, so it was impossible for the hospital to have checked out the story. A.S.L.

In an April 29, 1999, opinion only recently made available on Westlaw, _Maples v. General Motors Corp._, 1999 WL 1068588, 15 NDLR P 176 (U.S.Dist.Ct., E.D.Mich.), District Judge Roberts granted summary judgment to the employer on a claim by Theodore Maples that he was unlawfully subjected to harassment because, as an openly-gay man, his co-workers believed that he was an "AIDS case." Roberts rejected Maples= argument that General Motors could be found liable for disability discrimination based on the attitudes of his co-workers, finding that the "regarded as having a disability" provisions of federal and state law referred to the employer=s attitude toward the employee, not the attitudes of co-workers. Maples had not made any allegations that G.M. management considered him to be HIV+ or to have AIDS. Further, Roberts found that the harassment alleged by Maples was due to his sexual orientation, not to perceived HIV status, and that sexual-orientation-based harassment is not actionable under federal or state law. Finally, Roberts found that General Motors had responded in some way to every complaint made by Maples, and thus had not manifested the indifference necessary to subject it to liability. A.S.L.

A federal district court jury in Los Angeles unanimously ruled on April 21 in favor of the estate of Robert Jahn, a Walt Disney Company executive who died from AIDS in 1996, finding that Disney had coerced Jahn into signing away millions of dollars in benefits in order to avoid being discharged (and thus losing his insurance coverage) over a charge that he had taken kickbacks from vendors to Disney. Lawyers for Jahn=s estate contend that the kickback charges were untrue, but that Jahn was on his deathbed when the charges arose and did not have the strength to mount a defense. The estate sued Disney for $2.2 million, but U.S. District Judge Dean Pregerson (C.D. Cal.) has yet to decide how much of that claim will be awarded in damages as a result of the jury verdict. _Associated Press_, April 22.

In a brief memorandum, the N.Y. Appellate Division, 2^nd Dept., affirmed a ruling by Westchester County Supreme Court Justice DiBlasi in _Dunlap v. Levine_, 2000 WL 371186, affirming dismissal of an AIDS phobia complaint. Said the court, "Although the appellant established that he was exposed to the HIV virus [sic] and that his fear of contracting the disease was reasonable, he failed to raise an issue of fact as to the respondents= negligence. Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient to defeat a motion for summary judgment properly made by the moving parties." The plaintiff is a funeral home employee who sustained an injury from a sharp item present with a corpse presented for funeral preparation; the defendants include St. Luke=s-Roosevelt Hospital Center, Health Nutritional Services a/k/a Healthdyne, Med-Tec, Inc, and U.S. Home Care Corp. of Manhattan. For more detailed discussion of the factual allegations in the complaint, see the trial court=s opinion, published in the _New York Law Journal_ on Feb. 8, 1999, and reported in the March 1999 edition of _Lesbian/Gay Law Notes_.

The Court of Appeals of Wisconsin ruled April 18 that a man who was afraid of contracting HIV from having a blood sample drawn did not have a reasonable basis for objecting to having his blood drawn after being arrested for driving while intoxicated. _State of Wisconsin v. Mahler_, 2000 WL 387531. Mahler was stopped at 2 a.m. on May 28, 1998, by Eau Claire police officer James Southworth, and arrested for operating a motor vehicle while intoxicated. He was brought to a nearby hospital to have his blood drawn for a test of his blood alcohol level. He refused to consent, but the test sample was drawn over his protest. Then he moved to have the test result suppressed, arguing that in light of his objection the police should have used a breath test instead. The trial court found that a breath test was an available alternative, and concluded that drawing Mahler=s blood under protest was unreasonable. Reversing, Judge Peterson wrote that the issue was whether Mahler had a reasonable objection, and fear of contracting HIV from having his blood drawn under sterile conditions in a hospital was not reasonable.

Yet another circuit heard from on the question whether the ADA is violated when an employee benefit plan provides a different level of coverage for different disabling conditions. In _Equal Employment Opportunity Commission v. Aramark Corp., Inc._, 2000 WL 336916 (D.C.Cr., April 14), the court held that a benefit plan adopted prior to the ADA=s enactment that provided lesser benefits for psychiatric disabilities than for physical disabilities could not be considered a "subterfuge" for purposes of evading the Act, and thus was protected by the "safe harbor" provision for bona fide employee benefit plans. A.S.L.

The Rhode Island state senate has approved a bill that would repeal the law that makes it a crime to possess a hypodermic needle without a prescription. According to the _Providence Journal_, April 27, the measure was specifically intended to prevent the spread of AIDS by "ensuring a plentiful supply of new, sterile needles," which could be bought without restrictions in pharmacies. The measure passed 28-17, and now goes to the state House. Gov. Almond has not stated a position on the issue. According to the news report, Rhode Island is now one of just seven states that have a criminal ban on needle possession, and the Senate debate focused on neighboring Connecticut=s experience. Connecticut repealed its needle law in 1992 and has documented a decrease in needle transmissions of AIDS and hepatitis in subsequent years. A.S.L.

Surprise, surprise! No sooner did the Supreme Court refuse to review the 7^th Circuit=s decision in _Doe v. Mutual of Omaha Insurance Co._, 179 F.3d 557 (7th Cir. 1999), holding that the ADA does not prohibit AIDS-caps on insurance policies, that Mutual sent letters to its policy-holders announcing that it was terminating the practice of capping AIDS-related claims at a lower ceiling than other claims. A company spokesman said the caps come off existing policies on May 1, because Mutual has learned more about the costs of covering AIDS-related illnesses and has apparently concluded that under current treatment regimes the disease should not be singled out for differential treatment. It was the plaintiff=s position in _Doe_, of course, that "there is no legitimate, financial reason to treat" people with HIV differently from everybody else, said Heather Sawyer, a Lambda Legal Defense Fund staff attorney who represented the plaintiffs. _Wall Street Journal_, April 14. A.S.L.

Clark, Randall Baldwin, _Platonic Love in a Colorado Courtroom: Martha Nussbaum, John Finnis, and Plato=s_ Laws_ in_ Evans v. Romer, 12 Yale. J. L. & the Humanities 1 (Winter 2000).

Gerber, Paula, _Case Comment: South Africa: Constitutional Protection for Homosexuals B A Brave Initiative, But Is It Working?_, 9 Australasian G.L.L.J. 37 (Feb. 2000).

Shackel, Rita, _The Commercial Sexual Exploitation of Children: A Review of International Legal Responses_, 1999 Australian Int=l L. J. 91.

Sharpe, Alexander, _Imagining the Sexual: Transgendered Desire and Law=s Limit_, 3 Flinders J. L. Reform (Australia) 273 (Dec. 1999).

Hofland, Constance, _Constitutional Law B First Amendment B Freedom of Speech: The National Endowment for the Arts Can Require Consideration of "Decency and Respect" in Funding Decisions Without Abridging Freedom of Speech_: National Endowment for the Arts v. Finley_, 118 S.Ct. 2168 (1998)_, 75 N.D. L. Rev. 893 (1999).

Recent Cases, _Family Law B Massachusetts Supreme Judicial Court Upholds Probate Court=s Exercise of Equity Power in Granting Visitation Between a Child and a Lesbian De Facto Parent B _E.N.O. v. L.L.M._, 711 N.E.2d 886,_ cert. denied_, 120 S.Ct. 500 (1999)_, 113 Harv. L. Rev. 1551 (April 2000).

Recent Cases, _International Law B Human Rights B European Court of Human Rights Rules That British Military=s Discharge of Homosexuals Is Illegal B_ Lustig-Prean and Beckett v. United Kingdom_, App. Nos. 31417/96 and 32377/96 (Eur. Ct. H.R. Sept. 27, 1999), and_ Smith and Grady v. United Kingdom_, App. Nos. 33985/96 and 33986/96 (Eur. Ct. H.R. Sept. 27, 1999)., 113 Harv. L. Rev. 1563 (April 2000).

The 9^th volume of the Australasian Gay and Lesbian Law Journal (Feb. 2000) has been published, with articles as noted above. * * * The March 29 issue of _The Daily Journal_ in San Francisco, a legal newspaper, included a feature article commemorating the 20^th anniversary of Bay Area Lawyers for Individual Freedom, under the title "Out at the Bar." >_The Recorder_, another San Francisco publication, issued a special section to commemorate BALIF=s anniversary, featuring a roundtable discussion by openly lesbian and gay judges and lawyers. * * * In the _National Law Journal_=s April 24 issue, the "Associates" column by Michael D. Goldhaber is about the all-gay law firms of Johnson, Gulling Heltzer & Burg, in Minneapolis, and Crockett & Chasen, in Miami Beach.

Kromm, David, _HIV-Specific Knowing Transmission Statutes: A Proposal to Help Fight an Epidemic_, 14 St. John=s J. Legal Comment. 253 (Fall 1999).

22 Univ. of Arkansas at Little Rock L. Rev. No. 2 (Winter 2000) is devoted to an essay and two articles about disability discrimination law, critical of the ways in which judicial interpretation and legislative timidity have narrowed the protection for people with disabilities. Laura F. Rothstein, _Reflections on Disability Discrimination Policy B 25 Years_, 22 U. Ark. L. Rev. 147; Luther Sutter, _The Americans With Disabilities Act of 1990: A Road Now Too Narrow_, 22 U. Ark. L. Rev. 161; Stephen W. Jones, _The Supreme Court Reins in the Americans With Disabilities Act_, 22 U. Ark. L. Rev. 183.