“Direct Threat” Defense to Discriminating Against HIV+ and Hep C+ Performers

Recently, there has been much discussion about whether performers in the industry who are HIV+ or Hep C+ or even previously infected with a disease such as syphilis should or could be allowed to perform again, even with condoms. This author has seen numerous tweets, forum message board posts and comments debating whether a production company could knowingly discriminate against a performer who has been infected with a non-curable disease that would be considered a disability under the ADA (Americans with Disabilities Act).

Many commentators and arm-chair attorneys have put forth the notion that to not allow such performers to work in the adult entertainment industry as performers in front of the camera would amount to an unlawful discriminatory act, actionable in court. While this might be true, employers do have a defense to such if they can establish that the infected employee is a “direct threat to the health and safety” of the other performers on set. OSHA and CalOSHA require that all workplaces are safe and free from hazards for all employees.

The direct threat defense is a narrow exception to the general rule that employers may not discriminate based on disability. An employer’s determination that an employee poses a direct threat cannot be based on fears, misconceptions, or stereotypes about the employee’s disability. The employer must make a reasonable medical judgment, relying on the most current medical knowledge and the best available objective evidence.

In deciding whether a direct threat exists, an employer should consider:

  • the duration of the risk
  • the nature and severity of the potential harm
  • how likely it is that the potential harm will occur, and
  • how imminent the potential harm is.

These factors must be weighed against each other to decide whether a direct threat is present. Even if an infected performer is using a condom does this negate any and all possibility of transmission of HIV or other various bloodborne pathogen illnesses during a scene ? What if the condom breaks ? What if the male performer prematurely ejaculates inside of the vaginal or anal cavity or his co-performer ? What risk is there to other members of the crew ? These are questions that need to be answered and addressed by not only the production company staff but also their medical team.

In 2002 the United States Supreme Court squarely decided this issue in the seminal case of Chevron USA Inc. v. Echazabal. Mario Echazabal worked at Chevron’s El Segundo, California oil refinery for some twenty years. During this time, he worked as a laborer, helper, and pipefitter for various maintenance contractors, primarily in the coker unit. In 1992, Echazabal applied to work directly for Chevron at the refinery’s coker unit as a pipefitter/mechanic. He again applied in 1995 for the position of plant helper. On both occasions, Chevron determined that Echazabal was qualified for the job and could perform its essential functions based on his past work history, and extended Echazabal job offers contingent on his passing a physical examination. In late 1993, Echazabal was diagnosed as having chronic active Hepatitis C.

After examination and review, Chevron’s physicians concluded that Echazabal should not be exposed to the solvents and liver-toxic chemicals in the refinery and Chevron withdrew its offer to hire him. They reached this conclusion even though Echazabal’s physicians had not issued any restrictions precluding him from working in the refinery.

Chevron’s decision was based on a medical assessment-which Echazabal contested was not grounded in current medical knowledge or the best available objective evidence-of the ability of Echazabal’s liver to cleanse itself of the chemicals to which he had been, and would continue to be, exposed in the refinery.

The Supreme Court held that before excluding Echazabal as a direct threat, Chevron was required under EEOC regulations to show that it had made an individualized assessment of his then current ability to perform essential job functions. This evaluation was required to have been derived from current medical knowledge and objective evidence.

The EEOC regulations, which were upheld in Chevron, set forth four factors for determining whether a direct threat exists: (1) the potential duration of the threat; (2) the nature and severity of the threat; (3) the likelihood that the threat will occur; and (4) the imminence of the threat. The Supreme Court found this approach reasonable because it supports a particularized analysis of the harm to the employee.

Even though Echzabal posed no harm to any other employee, his Hepatitis C combined with the exposure to the toxins at the refinery posed a threat to his own life. The Supreme Court held that even a threat to one’s self was enough to find that Chevron did not discriminate against Echzabal and remanded the case back to the Ninth Circuit for further hearings. Under the EEOC regulations, Chevron bore the evidentiary burden of establishing the existence of a direct threat. The individualized determination of direct threat also required Chevron to prove that possible accommodations were examined and found not to exist within reason.

I have highlighted that last sentence since it is so important in this matter. While it may be medically possible to determine that a HIV+ or Hep C+ performer is a “direct threat” under the four factors (again each case is different and will be factually based on how and what type of content each company produces) it does not mean that you can simply not hire that performer for any position on the set. It would be recommend that if another position is available (camera person, production assistant, videographer, lighting, craft services ect) that does not require the possibility of fluid transmission, that the HIV+ or Hep C+ performer be employed in that capacity. There is no basis under the “direct threat” defense that an HIV+ or Hep C+ person could not work in any other capacity on set. Failure to accommodate a potential employee’s medical condition can and will likely result in a claim of discrimination with the EEOC or California’s equivalent FEHA.

Therefore, this author cautions any studio or employer in the adult industry that is faced with the potential hiring of an chronically infected performer to seek the legal advice of an attorney experienced and knowledgeable in employment law before making any decisions or even comments to the potential performer. Remember, each potential hire will require an individual assessment as the direct threat. A studio cannot make a blanket decision that they will simply not hire a chronically infected performer.

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