Raytheon Co. v. Fair Employment & Housing Com.
AIDS is a physical handicap protected by California’s antidiscrimination law, and an employer asserting the “threat to health and safety of others” defense bears the burden of proving it by a preponderance of the evidence.
Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242
Disability & Accommodation
Danger defense
FEHA (Gov. Code §§ 12926, 12940)
In brief. Raytheon refused to reinstate an employee diagnosed with AIDS even though its own medical staff and public-health officials uniformly concluded the disease was not transmissible through ordinary workplace contact. The Fair Employment and Housing Commission found unlawful handicap discrimination, the superior court denied a writ, and the Court of Appeal affirmed. AIDS “is clearly a physical handicap within the meaning of Government Code section 12926, subdivision (h),” and an employer invoking the statutory defense that the employee “cannot perform such duties in a manner which would not endanger . . . the health and safety of others” bears “the burden of proving the defense . . . by a preponderance of the evidence.” (Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1249, 1252.) Raytheon offered “no evidence at all” to support that defense. (Id. at p. 1252.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
California’s Fair Employment and Housing Act protects against employment discrimination based on physical handicap. Government Code section 12940, subdivision (a)(1), “prohibits an employer from discriminating against a handicapped person unless, among other things, the person . . . is unable to perform his or her duties, or cannot perform such duties in a manner which would not endanger his or her health or safety or the health and safety of others.” (Raytheon, supra, 212 Cal.App.3d at p. 1252.) This case tested both whether AIDS qualifies as a protected handicap and what an employer must show to invoke the “endanger . . . others” exception. The opinion opens with the question and its answer: “May an employer discharge an employee solely because he has been diagnosed as having Acquired Immune Deficiency Syndrome (AIDS)? No.” (Id. at p. 1245.)
Raytheon hired John Chadbourne in 1980; his duties were “primarily clerical,” requiring him to meet with individuals throughout the plant, and his performance reviews were “uniformly high.” (Raytheon, supra, 212 Cal.App.3d at p. 1245.) In December 1983 he was hospitalized and diagnosed with pneumocystis carinii pneumonia and AIDS; his treating physician, an infectious-disease expert, released him to return to work, writing that “there have been no cases of [AIDS] in close contacts of patients with AIDS” and that the disease “can only be transmitted by blood transfusions, sharing of intravenous needles or sexual contact.” (Id. at pp. 1245–1246.) Raytheon’s own occupational physician and nurse, the county Director of Communicable Disease Control, and physicians at the federal Centers for Disease Control all confirmed there was “no risk” of transmission through ordinary workplace contact. (Id. at pp. 1246–1247.) Raytheon’s occupational physician and medical director both agreed Chadbourne “can return to his job,” yet the company refused to reinstate him, with its medical director recommending Raytheon “beg for time.” (Id. at p. 1247.) Raytheon’s stated basis for refusing reinstatement “was that he had AIDS and that Chadbourne’s coworkers might be at risk.” (Ibid.) Chadbourne died of AIDS complications in early 1985 at age 35. (Id. at pp. 1245–1246.)
Procedural history
Chadbourne filed administrative complaints with the California Department of Fair Employment and Housing and with the federal Office of Federal Contract Compliance Programs (OFCCP). (Raytheon, supra, 212 Cal.App.3d at pp. 1247–1248.) The two agencies reached opposite conclusions on the same facts. The OFCCP, “without holding a hearing,” found Chadbourne handicapped within the meaning of the Rehabilitation Act but “sustained Raytheon’s position that Chadbourne had not been discriminated against,” declining to award any relief. (Id. at pp. 1247–1248.) The California Fair Employment and Housing Commission, after “a lengthy hearing with extensive briefing,” found that Raytheon “had deprived Chadbourne of his fundamental civil right to be free of employment discrimination based upon a physical handicap” and awarded relief to his estate, which had been substituted as a party after his death. (Id. at p. 1248.) Raytheon petitioned for a writ of mandate; Judge McMahon issued “an exhaustive and well-reasoned decision denying the petition.” (Ibid.) The Court of Appeal affirmed, reviewing the administrative decision under Code of Civil Procedure section 1094.5 to determine “whether there is substantial evidence to support the finding,” and declining to apply the independent-judgment test because no fundamental vested right of the employer was at stake. (Id. at pp. 1250–1251.) The opinion is certified for partial publication. (Id. at p. 1242 [notice].)
Issue
Two published issues: first, whether AIDS is a “physical handicap” within the meaning of Government Code section 12926, subdivision (h); and second, whether substantial evidence supported the Commission’s finding of discrimination — which turned on the employer’s asserted defense that reinstating Chadbourne would endanger the health and safety of his coworkers, and on who bears the burden of proving that defense. (Raytheon, supra, 212 Cal.App.3d at pp. 1248–1249, 1252.)
Holding
The judgment was affirmed. (1) “AIDS is clearly a physical handicap within the meaning of Government Code section 12926, subdivision (h),” as defined by the California Supreme Court in American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603 — a “‘disadvantage that makes achievement unusually difficult,’” which “did not have to be presently disabling.” (Raytheon, supra, 212 Cal.App.3d at pp. 1248–1249.) (2) On the safety defense, the employer carries the load: “The employer has the burden of proving the defense of the threat to the health and safety of other workers by a preponderance of the evidence.” (Id. at p. 1252.) (3) “There was very substantial evidence to support the Commission’s finding of discrimination and no evidence at all to support Raytheon’s defense of protecting the health and safety of coworkers,” because all the information Raytheon collected in early 1984 “established that AIDS was not transmissible in the workplace.” (Id. at p. 1252.) Raytheon’s refusal rested on “an irrational and unsupported belief.” (Ibid.)
Reasoning
AIDS fits the statutory definition of physical handicap. The court applied the Supreme Court’s definition from American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, which had held hypertension a protected handicap: a handicap is “‘a disadvantage that makes achievement unusually difficult,’” and a “condition of the body which has that disabling effect is a physical handicap,” which “did not have to be presently disabling.” (Raytheon, supra, 212 Cal.App.3d at pp. 1248–1249.) The Commission had found that although AIDS did not impair Chadbourne’s ability to do his job until long after his exclusion, “‘there was not simply a possibility but a tragic certainty that the condition would at some time in the future seriously impair his physical ability and ultimately kill him.’” (Id. at pp. 1248–1249.) The court then set out the medical reality at some length — HIV’s status as a progressive immune-system disease, its three specific routes of transmission (sexual intercourse, parenteral blood contact, and transplacental or perinatal contact), and the fact that it “cannot be transmitted through common daily contact” — and observed that hospitalization “can be evidence of physical handicap” under School Bd. of Nassau County v. Arline (1987) 480 U.S. 273. (Raytheon, supra, 212 Cal.App.3d at pp. 1249–1250.) Raytheon did not contest that AIDS was a handicap; it instead “urge[d] us [to] adopt the dissent’s much more restrictive definition of a handicap in American National Ins. Co.,” an invitation the court rejected: “We have neither the authority nor the inclination to do so.” (Id. at p. 1250.) The Commission’s and trial court’s conclusion that Chadbourne was handicapped “must be sustained.” (Ibid.)
The standard of review favored the agency. Under section 1094.5, the court’s function — like the trial court’s — was to determine “whether there is substantial evidence to support the finding,” resolving “reasonable doubt in favor of the administrative agency’s findings.” (Raytheon, supra, 212 Cal.App.3d at pp. 1250–1251.) The independent-judgment test did not apply because “[a]n employer’s right to establish its employment practices . . . is not a fundamental vested right.” (Id. at p. 1251.) The court added that “[e]ven were we to use the independent judgment test, we would come to the same conclusion.” (Ibid.)
Objective medical evidence, not fear, governs the danger inquiry. Following Arline, the court held that decisions detrimental to those handicapped by contagious disease must rest on “‘reasonable medical judgments given the state of medical knowledge,’” with courts “‘normally . . . defer[ring] to the reasonable medical judgments of public health officials.’” (Raytheon, supra, 212 Cal.App.3d at p. 1251.) That is “exactly what the Commission did,” weighing “how the virus is transmitted, the duration of the risk, the potential harm to third parties, and the probability of transmission.” (Ibid.) Every source Raytheon consulted in early 1984 confirmed no workplace transmissibility, so “[a]ny other conclusion . . . would have been pure speculation,” and Raytheon’s refusal “was based upon an irrational and unsupported belief he posed a risk.” (Id. at pp. 1251–1252.)
The record refuted the danger the employer claimed. What made the result inevitable was the unanimity of the medical sources Raytheon itself assembled. Chadbourne’s treating physician, an infectious-disease expert, reported the disease “‘can only be transmitted by blood transfusions, sharing of intravenous needles or sexual contact.’” (Raytheon, supra, 212 Cal.App.3d at pp. 1245–1246.) The county Director of Communicable Disease Control toured the plant and “advised . . . that there was no medical risk to the other employees,” writing that “‘[c]asual social contact, as would occur in an occupational setting, poses no risk.’” (Id. at pp. 1246–1247.) The federal Centers for Disease Control’s Morbidity and Mortality Weekly Report stated that “‘no person-to-person transmission has been identified other than through intimate contact or blood transfusions,’” and a CDC physician told Raytheon’s nurse “‘there was no proof that Chadbourne posed any threat.’” (Id. at pp. 1246–1247.) Even Raytheon’s own consulting physician and medical director agreed Chadbourne “‘can return to his job.’” (Id. at p. 1247.) Yet the medical director “recommended that Chadbourne not be allowed to return,” and management chose to “‘beg for time.’” (Ibid.) On that record, “[a]ny other conclusion . . . would have been pure speculation,” and the refusal rested on “an irrational and unsupported belief.” (Id. at pp. 1251–1252.)
The danger defense and the employer’s burden. The court located the safety defense in section 12940, subdivision (a)(1) and squarely assigned the burden: “The employer has the burden of proving the defense of the threat to the health and safety of other workers by a preponderance of the evidence,” citing Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791. (Raytheon, supra, 212 Cal.App.3d at p. 1252.) On this record “[t]here was . . . no medical evidence to support Raytheon’s defense.” (Ibid.) Quoting the Commission, the court acknowledged the “critical need to protect co-workers” and the “considerable hysteria” surrounding AIDS, but insisted that “neither ignorance and fear nor the serious consequences of AIDS justify our departure from the carefully developed rules . . . that govern our physical handicap cases.” (Id. at p. 1252.)
Significance
A revealing feature of the case is the divergence between the federal and state administrative outcomes on identical facts: the OFCCP found no discrimination and denied relief, while the FEHC found a civil-rights violation and awarded it. (Raytheon, supra, 212 Cal.App.3d at pp. 1247–1248.) That contrast illustrates the independent force of California’s scheme and the value of the state forum to an aggrieved employee — a lesson that remains practically significant where parallel federal and state remedies exist. The decision also exemplifies the Arline command that contagious-disease exclusions rest on “‘reasonable medical judgments given the state of medical knowledge,’” assessed as of the time of the employer’s decision rather than with the benefit of hindsight; the court took pains to reject Raytheon’s suggestion that the result depended on “the many court decisions and the vast amount of medical research done since 1984.” (Id. at pp. 1251–1252.)
Raytheon was a landmark in two respects. As a matter of disability law, it was among the earliest published decisions to hold that AIDS is a protected handicap and that exclusion of an HIV-positive worker on speculative contagion fears is unlawful — a holding rooted in the same objective-medical-evidence approach the U.S. Supreme Court announced in Arline. As a matter of FEHA proof structure, it cemented that the “danger” defense is an affirmative defense the employer must prove by a preponderance of the evidence, not a hurdle the employee must clear. That burden allocation, drawn from Sterling Transit, remains the backbone of the modern statutory scheme: under current Government Code section 12940, subdivision (a)(1), and its implementing regulations, an employer that refuses to employ a disabled person because the person cannot perform the job without endangering health or safety must carry the burden on that defense, supported by an individualized assessment grounded in objective evidence rather than stereotype. Raytheon is the disease-specific companion to Sterling Transit’s broader physical-handicap holding and a direct doctrinal ancestor of today’s “health or safety of others” defense reflected in pattern instructions on disability discrimination.
Key quotes
“AIDS is clearly a physical handicap within the meaning of Government Code section 12926, subdivision (h) as defined by the California Supreme Court in American National Ins. Co.” (Raytheon, supra, 212 Cal.App.3d at p. 1249.)
“The employer has the burden of proving the defense of the threat to the health and safety of other workers by a preponderance of the evidence.” (Id. at p. 1252.)
“There was very substantial evidence to support the Commission’s finding of discrimination and no evidence at all to support Raytheon’s defense of protecting the health and safety of coworkers.” (Id. at p. 1252.)
Practice pointer
When an employer excludes a disabled worker because of a perceived threat to coworkers (or the public), Raytheon tells both sides who must prove what. The “threat to health and safety of others” defense is the employer’s to prove by a preponderance, and it must rest on objective medical evidence and an individualized assessment — not on fear, customer or coworker discomfort, or generalized risk. (Raytheon, supra, 212 Cal.App.3d at pp. 1251–1252.) For plaintiffs, marshal the employer’s own contemporaneous medical information; here, Raytheon’s defense collapsed because every source it consulted negated the risk it claimed. Press that the assessment must be made on what the employer knew at the time, from reasonable medical judgments, deferring to public-health authorities. For defense counsel, do not assert the danger defense without a contemporaneous, individualized, evidence-based risk assessment; a refusal grounded in speculation is “an irrational and unsupported belief” that will not survive substantial-evidence review. (Id. at p. 1252.) Note the standard of review where an agency has ruled: the employer has no fundamental vested right in its employment practices, so the deferential substantial-evidence test, not independent judgment, applies on a writ challenge. (Id. at p. 1251.)
Open questions
The published portion resolves AIDS’s status as a handicap and the burden on the danger defense, but it leaves edges. Because Raytheon offered “no evidence at all,” the court had no occasion to decide how an employer could carry its preponderance burden — what quantum and quality of medical evidence, and how individualized an assessment, would suffice where genuine (not speculative) risk exists. (Raytheon, supra, 212 Cal.App.3d at p. 1252.) The opinion also brackets the relationship between the “endanger . . . health and safety of others” branch and the parallel “endanger his or her [own] health or safety” branch of section 12940, subdivision (a)(1); the danger here was to coworkers, and the court did not analyze the self-danger branch addressed in Sterling Transit. (Id. at p. 1252.) Finally, the decision predates the 1992 recodification of the disability provisions and later amendments shifting California from “physical handicap” to “physical disability” with its own definitional framework; Raytheon’s core holdings survived that evolution, but the precise statutory text it construed has since changed.