SANCHEZ v. LAGOUDAKIS

SANCHEZ v LAGOUDAKIS (AFTER REMAND) Docket No. 106764. Argued April 8, 1998 (Calendar No. 11). Decided July 31, 1998. Dorene Sanchez brought an action in the Branch Circuit Court against her employer, Kostas Lagoudakis, doing business as Paradise Family Restaurant, alleging discrimination under the Handicappers’ Civil Rights Act for requiring her to prove that she was healthy enough to continue working after the employer heard a rumor that she had aids. The court, Michael H. Cherry, J., granted summary disposition for the defendant on the ground that because the plaintiff did not have aids, she was not handicapped, and the hcra was not applicable. The court conditioned the grant on the payment of the plaintiff’s lost wages and tips, costs, and attorney fees. The Court of Appeals, Gillis, P.J., and McDonald and J. W. Fitzgerald, JJ., affirmed in an opinion per curiam (Docket No. 115526). The Supreme Court reversed and remanded the case to the circuit court, holding that aids can be a handicap, and that the hcra prohibits discriminatory treatment based on an erroneous perception of a handicap. 440 Mich 496 (1992). On remand, the circuit court granted summary disposition for the plaintiff, while again awarding lost wages and tips, and increased the award for costs and attorney fees. On remand, the Court of Appeals, Doctoroff, C.J., and Neff and Fitzgerald, JJ., affirmed, holding that, with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease. It held further that, in and of itself, the compromised system is unrelated to an individual’s ability to perform the duties of a waitress or qualification for such employment, as long as the characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food (Docket No. 189094). The defendant appeals. In an opinion by Justice Boyle, joined by Chief Justice Mallett, and Justices Brickley, Cavanagh, Weaver, and Taylor, the Supreme Court held-. For the purpose of balancing the Handicappers’ Civil Rights Act and the Public Health Code, if a food-service employer has a reasonable suspicion that an employee has aids, the employer may refuse to continue to assign the employee, pending testing for communicable diseases; the employer must have a reasonable basis for the request, and the testing requested must also be reasonable. 1. Under the Handicappers’ Civil Rights Act, a handicap is a determinable physical characteristic unrelated to a person’s ability to perform the duties of a particular job. A compromised immune system is a determinable characteristic, subject to definite and objective identification. In the context of the food-service industry, depending on the nature of the underlying opportunistic infections, aids may or may not be unrelated to the employee’s ability to perform requisite duties. 2. The Public Health Code and related administrative regulations are to be read as legislative and administrative policy that define communicable diseases that may be transmitted through food as being related to an employee’s duties in a food-service establishment, if the employee works in any capacity in which there is a likelihood that food or food-contact surfaces will be contaminated, or disease transmitted to another person. Under the code and regulations, employers are to exclude from their premises any employee suspected of having a communicable disease. Thus, to the extent that a food-service employee with aids suffers from an opportunistic infection that is a communicable disease, and reasonable accommodation will not eliminate the likelihood of contamination of food or food-contact surfaces, or transmission of the disease to another person, the employee is not protected under the hcra from exclusion. The existence of a severely compromised immune system, or a reasonable suspicion that an employee’s immune system has been so compromised, in the context of food handling, will allow an employer to request reasonable testing for communicable diseases, transmissible in a manner described under § 3-101 of the United States Department of Public Health Service, Food Service Sanitation Manual, adopted by 1981 AACS, R 325.25103(b), to ensure compliance with the Public Health Code, to prevent the spread of such diseases, and to determine the employee’s status as well as the employer’s rights and obligations under the hcra. 3. In this case, the defendant reasonably requested that the plaintiff prove that she was sufficiently healthy to continue working in the restaurant. The fear that the plaintiff presented a health threat because she might introduce other diseases into the workplace was objectively reasonable because, viewed from the employer’s perspective, the plaintiff was the source of the defendant’s information. Thus, the suspicion was based on comments bearing inherent indicia of reliability. As a matter of equity, the plaintiff is entitled to lost wages and tips as a result of this request. 4. Because the plaintiff has not prevailed under the hcra, she is not entitled to attorney fees as an item of damages under MCL 37.1606(3); MSA 3.550(606)(3) or as an item of costs under MCR 2.625. Reversed and remanded. Justice Kelly, dissenting, stated that an employer is expected to send an employee home from work where there is evidence of a communicable disease that is transmitted through food or in the process of preparing and serving food or beverages. Also, an employer may require medical clearance to return to the workplace. However, requiring an employee to be tested on the basis of a suspicion of being afflicted with aids runs afoul of the hcra and ada’s proscription against medical examinations that are not job-related and not required by business necessity. Requiring only those suspected of having aids and other compromised immune system diseases to be tested for communicable diseases, absent some discernible evidence of a food-borne illness, clearly is a violation of the hcra. Whether an action is reasonable is not a matter of law, but is a question for the jury. The trial court and the Supreme Court err in resolving the question on a motion for summary disposition. If the question is resolved as a matter of law, it must be found that the defendant’s request that Sanchez be tested was not based on a reasonable suspicion that she harbored some AIDS-associated communicable disease; rather, it was based on rumor and innuendo and his own fears. This is insufficient to justify the type of discriminatory behavior that the defendant perpetrated in this case. 217 Mich App 535; 552 NW2d 472 (1996) modified. Granzotto & Nicita, P.C. (by Mark Granzotto'), and Michael J. Steinberg for the plaintiff-appellee. George James Platsis for the defendant-appellant. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Cynthia M. Núñez, Assistant Attorney General, for Department of Civil Rights. Chris E. Davis and Kendra S. Kleber for Michigan Protection & Advocacy Service, Inc., AIDS Partnership Michigan, HIWAIDS Wellness Networks Grand Traverse Area, Inc., HIWAIDS Resource Center, FRIENDS Alliance, Michigan Jewish AIDS Coalition, AIDS Resource Center, and AIDS Consortium of Southeastern Michigan, Inc. AFTER REMAND Boyle, J. We granted leave in this case to decide whether the Court of Appeals properly determined the parties’ rights under the Handicappers’ Civil Rights Act (hcra) and certain provisions of the Public Health Code. We hold that the Court of Appeals failed to properly balance the interests underlying the applicable statutes and regulations. We also hold that the Court of Appeals erred in sustaining the trial court’s award of attorney fees. We emphasize at the outset that the lengths to which we go in limiting this opinion by explaining what it is not about, are made necessary by the dissent’s accusation that “the opinion permits discrimination” against persons affected or suspected of being affected by aids. Post at 729. This characterization of our holding raises the specter of alarming a segment of the community already subjected to unnecessary hysteria. That possibility is the inherent consequence of the dissent’s unfortunate failure to recognize that what divides us is (1) whether the Public Health Code and regulations address solely food-borne illnesses, (2) whether a food-service employer must wait for physical symptoms to manifest before refusing to assign an employee where there is a reasonable suspicion of aids, and (3) that this case involves a reasonable suspicion having inherent indicia of reliability as opposed to mere rumor and innuendo. We have done everything possible from the judicial perspective to define a path by which employers and employees may in good faith navigate two complex and difficult sets of statutory obligations. Mindful of Cardozo’s admonition that we are not knights-errant, roaming at will in pursuit of our own ideal of truth and goodness, we refrain from attempting to redefine these obligations in favor of a particular group or personal perspective. Cardozo, The Nature of the Judicial Process, p 141. Our focus here is limited and does not concern the transmission of aids. Rather, our decision addresses the obligations of food-service employers and employees in the presence of the potential spread of underlying communicable diseases that may be associated with aids. A food-service employer is not free to terminate any employee with a suspected illness, pending evidence that the employee is disease free. The employer is not free to terminate an employee for a suspected illness that is unrelated to the employee’s ability to perform a job, and, ipso facto, is not free to require an employee to present evidence of being disease free. However, where a food-service employer has a reasonable suspicion that a food-service employee has aids, which by definition is a syndrome that involves a compromised immune system that renders the employee highly susceptible to diseases that might be communicable in a manner described under the relevant regulations, the food-service employer may refuse to continue to assign the employee, pending testing for such communicable diseases. In this unique setting, where one accepted definition of aids is that it involves certain associated diseases, some of which are infectious and possibly food borne or airborne, our result is consistent with the fact-specific inquiry dictated by the need to avoid significant health risks to the public while protecting the handicapped from sweeping generalizations based on prejudice or unfounded fears. We reverse the decision of the Court of Appeals and remand this case for further proceedings consistent with this opinion. I Plaintiff Dorene Sanchez was working as a server at defendant Kostas Lagoudakis’ Paradise Family Restaurant in Coldwater. A rumor circulated in late 1987 that she had aids. Mr. Lagoudakis directed Ms. Sanchez to prove that she was healthy enough to continue working in the restaurant. He told her that she was free to return if she proved she was healthy. Plaintiff returned with proof that she did not have AIDS, and defendant told her she could return to work. However, she complains that his action was a discharge. Ms. Sanchez filed suit, alleging discrimination in violation of the Handicappers’ Civil Rights Act (HCRA). However, the circuit court granted summary disposition in favor of Mr. Lagoudakis on the ground that, because Ms. Sanchez did not have aids, she was not handicapped and the HCRA was inapplicable. Citing “equitable” powers, the circuit court conditioned the grant of summary disposition on payment by Mr. Lagoudakis of $491.25 for Ms. Sanchez’ lost wages and tips, $316.24 in costs, and $500 for attorney fees, for a total of $1,307.49. Both parties appealed, and the Court of Appeals affirmed. 184 Mich App 355; 457 NW2d 373 (1990). On appeal to this Court, the grant of summary disposition in favor of Mr. Lagoudakis was reversed. 440 Mich 496; 486 NW2d 657 (1992). This Court said that aids can be a handicap, and that the hcra prohibits discriminatory treatment based on an erroneous perception of a handicap. We remanded the case for further proceedings: Because aids can be found to be a handicap under the Handicappers’ Civil Rights Act, and because the act prohibits discriminatory treatment, even when based on erroneous perception, we reverse the decision of the Court of Appeals and remand this case to the circuit court for further proceedings. On remand the circuit court shall determine whether the condition Sanchez was perceived to have was a determinable physical characteristic resulting from disease unrelated to her ability to perform the duties of her job or her qualifications for employment or promotion. Both of these questions are for further factual development and determination. No record is presented on which we might express an opinion. [440 Mich 506-507.][] In the opinion, we emphasized that this Court was not considering the propriety of the “equitable” award in favor of Ms. Sanchez, 440 Mich 498, n 5, and that we were expressing no opinion with regard to whether AIDS is unrelated to Ms. Sanchez’ food-service employment. 440 Mich 502, n 14. On remand, the circuit court granted summary disposition in favor of Ms. Sanchez, while again awarding $491.25 in damages. The court increased the costs from $316.24 to $725.24, and awarded the plaintiff $32,501.34 in attorney fees. Mr. Lagoudakis appealed, and the Court of Appeals affirmed in a lengthy opinion. 217 Mich App 535; 552 NW2d 472 (1996). We granted Mr. Lagoudakis’ application for leave to appeal, and we now directly address the issue whether AIDS, or the perception thereof, was unrelated to Ms. Sanchez’ employment. n In its opinion affirming the decision of the trial court, the Court of Appeals offered a detailed analysis of the central issues presented in this case. 217 Mich App 538-557. However, the Court’s holdings are well summarized in these passages: For the foregoing reasons, we hold that, with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease and that is unrelated to an individual’s ability to perform the duties of a waitress or to an individual’s qualification for such employment as long as this characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food. In other words, a food service employee with aids has a handicap within the meaning of the hcra. [217 Mich App 552.] On the record before us, we conclude that defendant’s suspension of plaintiff violated the hcra because the suspension constituted an unlawful discriminatory act taken in response to a handicap that was unrelated to plaintiff’s abilities to perform her duties as a waitress. Accordingly, we reject defendant’s claim that plaintiff did not establish, as a matter of law, a prima facie case of discrimination under the HCRA and his corresponding claim that he was entitled to summary disposition with regard to plaintiff’s HCRA claim. [217 Mich App 554.] The Court of Appeals has held that “with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease and that is unrelated to an individual’s ability to perform the duties of a waitress or to an individual’s qualification for such employment as long as this characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food.” 217 Mich App 552. We agree. However, there is only one method by which a typical restaurateur will be able to determine reliably whether an employee’s condition is “accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food.” That method would be to send the employee to a physician for testing. And that is precisely what the employer did in this case. The Court of Appeals has attempted to balance a food-service employer’s statutory obligation not to discriminate against an employee* and the employer’s statutory obligation to provide a healthy environment for diners and other patrons. However, to accomplish this balance — to assure continued employment opportunity in the absence of “an opportunistic infection in a communicable form that can be transmitted through contact with food” — we hold that where a food-service employer has a reasonable suspicion that an employee has aids, the employer has the right to ask that employee to undergo testing to determine whether an opportunistic infection in a communicable form is, in fact, present. We restrict our holding to the task of balancing the hcra and the Public Health Code. A The applicable legislation and administrative rules support our holding. MCL 37.1103(b)(i); MSA 3.550(103)(b)(i), at the relevant time, defined “handicap” as a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic ... is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. We agree with the Court of Appeals that “a compromised immune system constitutes a ‘determinable’ characteristic . . . subject to definite and objective identification by serological, histological, and cultural techniques.” 217 Mich App 542. However, “[a] disability that is related to one’s ability to perform the duties of a particular position is not a ‘handicap’ within the meaning of the [HCRA].” Under the hcra in the context of the food service industry, AIDS is unique because, depending on the nature of the underlying opportunistic infections that present themselves as the syndrome’s natural process destroys the immune system, AIDS may or may not be unrelated to the employee’s ability to perform duties in the food service industry. Surgeon General’s Report on Acquired Immune Deficiency Syndrome (1986). The Public Health Code and administrative regulations promulgated thereunder mandate certain procedures if a food-service employee is suspected of having a “cornitmnicable disease.” MCL 333.12909(1); MSA 14.15(12909)(1) provides: The department shall promulgate rules to prescribe criteria for programs by local health departments and procedures for the administration and enforcement of this part. The department may promulgate rules to prescribe minimum standards of sanitation for the protection of the public health and otherwise provide for the implementation of this part. The department in promulgating these rules shall seek the advice and counsel of local health departments and the food service industry. The Michigan Department of Public Health, pursuant to its authority to promulgate administrative regulations, adopted most provisions of the United States Department of Public Health Service, Food Service Sanitation Manual. See 1981 AACS, R 325.25103(b). Section 3-101 of that manual states: No person, while infected with a disease in a communicable form that can be transmitted by foods or who is a carrier of organisms that cause such a disease or while afflicted with a boil, an infected wound, or an acute respiratory infection, shall work in a food service establishment in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons!1 1981 AACS, R 325.25909(3) further provides: The owner, operator, or person in charge of a food