“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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US District Court Judge Pregerson Rules on Measure B

Judge Pregerson rules some parts of Measure B are constitutional while others are unconstitutional.

This is the initial ruling we have all been waiting for from the Court. Judge Pregerson has decided that condoms in porn do not violate the First Amendment, however, he did go on to find that much of Measure B does violate the Constitution.

Note: This ruling by the court was on Vivid et al. request for an Order enjoining Measure B from being enforced as well as AIDS Healthcare Foundation’s motion that Vivid’s case be dismissed in its entirety. The case will continue since neither side won a total victory. Vivid was able to convince the Judge to block certain aspects of Measure B while not being able to convince the Judge to enjoin all of Measure B. And AHF could not convince the Judge to dismiss all of Vivid’s claims.

Interestingly, the Judge has allowed the requirement that a producer secure a permit prior to shooting an adult scene or movie. However, he has basically limited the County’s ability to suspend or revoke the permit. The Judge has determined that just allowing the County to have the ability to decide what is or is not a violation would be considered “prior restraint” and is unconstitutional. Judge Pregerson went on to note that the County would have “unbridled discretion” if they were allowed to revoke permits and suspend filming if there were any type of potential “harm” including even a cameraman having a cold.

Furthermore, the County of Los Angeles will not be able to conduct warrantless searches of producers. And once a warrant is obtained, if a violation is found, a fine or criminal penalties could not be imposed without a judicial hearing.

The Court also went on to find that Measure B does not define adult films sufficiently since “adult films” may be a movie that contains activities such as kissing which could possibly transmit disease since saliva contains infectious materials.

Also, the County cannot impose fees under Measure B for permits.

Here are the Judge Pregerson’s own summary of his decision;

“Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders, as described in footnote 23. While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B. Regarding fees, since there is no evidence that Measure B’s fees are revenue neutral, there is no reason to believe the Department’s Measure B duties cannot be performed without fees–or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this Court with evidence of revenue neutrality.”

In short, we still have to contend with Measure B, but the fees are gone, the searches are gone, the permit stays but it cannot be suspended or revoked without a proper court proceeding and thus producers cannot be forced to “shut down” and prevented from shooting other movies.

So AHF wins some and Vivid wins some… All in all – Measure B will now be much harder to enforce than it already is. But condoms remain a required aspect of shooting porn in Los Angeles County and California. The real question is does the County want to enforce a condom law that will now require a warrant for a search in order just to find violations.

In my opinion, I doubt the County will have the man power, the resources or the funding to start searching sets especially since they will not be able to charge fees for their permits.

Click here for a copy of Judge Pregerson’s Ruling;

031117360803

Ballot Measure B – Moving Forward

by Attorneys Greg Piccionelli and Michael W. Fattorosi

Since the Election Day many industry members have been speculating as to what happens now that Ballot Measure B has passed and will eventually become law in some or possibly all of the 85 independent towns and cities in Los Angeles County. We have noticed a somewhat panicked approach to how the industry can survive and continue to thrive in Southern California and especially Los Angeles, the home of adult motion picture entertainment since the 1950s. As an industry, we have a 50 year relationship with California and Los Angeles that cannot change quickly, and, in our opinion, when viewed from a legal perspective, should not change quickly.  Judicial opinions in California provide far more legal protection than any other state that currently also has a developing production industry.

Some have speculated that the industry should pack up our tents and relocate to Las Vegas or perhaps some other part of Nevada. Many believe that since the industry has a relationship with Las Vegas either by virtue of the AVN Awards or because there are other studios now producing there it will be a friendly home.

While Las Vegas may eventually become the home of the industry, now is not the time. As attorneys, we cannot ethically advise our industry clients to move to Las Vegas to produce sexually explicit content in a state where there are, at least at the present time, no legal protection to shield producers and performers from potential prosecution under its pandering, prostitution, and other laws. California and New Hampshire are the only two states in which there are controlling judicial precedents providing such protection.  Therefore, this should be made very clear: commercial production of  sexually explicit content outside one of the those two states places any production company and performer doing so in jeopardy of serious criminal prosecution. Therefore, there is not, in our opinion, currently sufficient  reason for a company to take such a risk while over 99% of the state of California currently remains legal for production.

If the Nevada State Legislature were to amend their current laws, or if the courts of Nevada were bound to a judicial decision holding reflect that hardcore porn production would be a protected under the First Amendment or the free speech provisions of its state constitution, the industry would have the kind of legal protection required to legally shoot commercial adult content. Unfortunately, that is yet to happen. When and if it does, perhaps then would be the time to seriously consider a move to friendlier pastures. However, as those legal protections simply do not currently exist, now is not the time.

Ballot Measure B is not a state-wide initiative. It only applies to Los Angeles County. Therefore, at this point, a costly and legally risky move out of California entirely is not required to avoid its applicability. However, a move out of Los Angeles County, like the one that has been discussed by Steven Hirsch of Vivid Entertainment in Variety Magazine, could certainly be a possibility.  Ventura County, as well Riverside County and San Bernardino County are all three relatively close counties in which Ballot Measure B will have no effect (Note: Simi Valley in Ventura County did in fact pass a measure similar to B therefore it is recommended that no one produce in Simi Valley as well).

Three cities even closer to the San Fernando Valley then the counties discussed are Pasadena, Vernon and Long Beach.  Under current law in those municipalities, Ballot Measure B cannot be adopted by any of those three cities. Pasadena, Vernon and Long Beach all have their own health departments and do not contract with the Los Angeles County Department of Health. Therefore, an inspector from the Los Angeles County Department of Health does not have jurisdiction to enter those cities to check production company headquarters for permits and condoms. Therefore, under current law in those cities, it simply cannot lawfully happen.

Ballot Measure B is a two-part law. The first, more stringent part of the law are the sections requiring all producers in Los Angeles County to secure health permits and use barrier protection. This is really the crux of the law. And that is what makes B so expensive for production companies. We do not know how much these health permits will cost but estimates of $2,000 to $30,000 a year have be discussed.

The second part of the law are the sections discussing film permits. As you are probably aware, any commercial filming in Los Angeles requires a film permit secured from FilmLA. Ballot Measure B does not change that. As most of you are aware if you film in Los Angeles without a permit and are apprehended doing so by law enforcement you can be charged with a misdemeanor crime.  You may also have your equipment confiscated and held until your first court appearance.

Ballot Measure B does not change any part of the law in regards to shooting without a permit. In actuality, Ballot Measure B proscribes no differences in criminal charges for shooting without a permit and shooting without a permit and without barrier protection. There is no increase in penalty for getting caught shooting without barrier protection – unless the production company is located within Los Angeles County and then there would be an increase in penalties for having a health permit but not using barrier protection.

It should be noted that according to an legal opinion provided to the Los Angeles County Board of Supervisors by its counsel, Ballot Measure B will not apply to out of state production companies that are also headquartered outside of Los Angeles County. If your production company was incorporated and is located in a city outside Los Angeles County, for example, Las Vegas, Phoenix, North Carolina or even Canada, the health permit aspects to Ballot Measure B cannot be enforced on your production company. Again, the Los Angeles County Department of Health inspector has no authority to visit you company headquarters in one of those states to perform an inspection.

In our opinion, Ballot Measure B can easily be worked around while staying fully compliant with the law (when it does go into effect). It does not require the exodus of the industry from Southern California or even Los Angeles County. We should remain united towards the end goal of defeating Measure B via a legal challenge that will be brought by the Free Speech Coalition. Until then, the sky isn’t falling and we should all remain calm.

The opinions stated in this story should not be viewed as legal advice.  Therefore, if you have legal counsel, you should call him or her soon to discuss how Measure B will impact your business. This applies equally to established production companies, talent as well as webcam companies. Measure B does not distinguish between different types of production.

If you do not have counsel, either of us would be more than happy to set up a consultation to develop a specific plan for your business. Michael can be reached at his office at (818) 881-8500 or via email at michael(at)fattlegal.com. Greg can be reached at (818) 201-3955 or via email at greg(at)piccionellisarno.com.

Today is B Day !!

This is the day we have been waiting for since the end of July when the AIDs Healthcare Foundation was able to place their “Condoms in Porn” legislation on the ballot. Today is the day the voters of Los Angeles County decide the faith of personal freedom in our bedrooms and on set. Today is the day that will decide if a small community of former outlaws and outcasts can defeat an over powering multi-million dollar special interest group that is intent on forcing their agenda on not only our industry but the rest of the world. If you do not live in Los Angeles do not think that a ballot measure or law like “condoms in porn” cannot come to your city or state. It can and it will. AIDs Healthcare Foundation has vowed to fight and to go anywhere to force condoms not only on porn but on monogamous couples of any sexual orientation to force them to use condoms in their own bedrooms while they cam.

Ask yourself this – do you want special interest telling you how to live your life ? How to have sex with your partner ? Do you want AHF to set the standard of what is acceptable behavior in the bedroom between two consenting adults ? AHF wants you to think this is a vote about worker safety. When was the last time you were asked to vote on a hard hat ?

Vote No on B and keep Weinstein and government out of our bedrooms !

Here is an excerpt from the speech I gave at the LA Porn Tours Rally on Bus Tour on Saturday, November 3rd;

“On November 6, the voters of Los Angeles County are going to be asked to decide a ballot measure about the sexual rights of a small inclusive community within its borders, a community that is often misunderstood and rarely given a  voice, a community that is publicly shunned but privately enjoyed, a community that has fought for its right to exist through years of struggles, court battles and legislation. Those that make up this community only want one thing: The right to choose for themselves how to live and work.

Michael Weinstein wants the voters to believe that the adult industry in Los Angeles is a cesspool of HIV and sexually transmitted diseases. He is playing the fear mongering card, that somehow, if not stopped, the porn industry will infect the rest of Los Angeles. This is a familiar argument to the gay community; this is the argument that was used against them when the world first learned of HIV.

Michael Weinstein… wants to use the industry and their products to send a message. He wants to use porn for nothing more than product placement. That message and that product are condoms. Yet he calls it a workers safety issue. Instead of government representatives, workplace safety experts, physicians and industry representatives working together to develop a comprehensive plan to protect performers without infringing on First Amendment rights, Mr. Weinstein is asking the voters of Los Angeles County to decide workers safety laws. This is unprecedented in California. The public does not and should not vote on the height of scaffolding or the guards on chainsaws. As an industry, we only want the right to decide this issue for ourselves and not have it forced upon us. Performers should have the right to choose. They want their sexual rights…. Measure B is an attack on the industry, it is an attack on performers, it is an attack on the Constitution, it is an attack on the sexual rights of all Americans that want—no, demand—that the government and those like Weinstein stay out of their bedroom.”

 

NO on B Bus Tour – Saturday, November 3rd 12-5pm

(CANOGA PARK, CA) — Adult performers and other adult industry personalities plan to demonstrate their opposition to LA County Measure B with a press conference in Canoga Park and follow-up demonstrations this Saturday, November 3.

“Proponents of Measure B would like you to think that it’s just about using condoms in porn, but that’s not true,” adult-industry blogger Tod Hunter said. “If this passes, adult content will have to be shot under emergency-room protocols. The same rules that protect an ER nurse from the spurting blood of a gunshot victim will apply to professional adult performers — even husbands and wives when they are working together. And producers will have to pay extra for filming permits to pay for inspections of their sets. Measure B is a declaration of war against the adult industry, an attempt to shut it down by smothering it in bureaucratic red tape.”

The press conference will take place at an adult production studio in Canoga Park, and the rallies will follow. The bus transport has been arranged by the organizers of LA Porn Tours, which offers adult-industry fans the chance to see the places where adult content is shot.

“Everybody in the adult industry is doing what we can to defeat this measure,” LA Porn Tours’ Benjamin Free said. “I got a bus, and we’re taking it to the streets.”

The performers are looking forward to the demonstration.

“I believe we performers should have the choice whether to use condoms or not,” performer Alex Chance said. “We shouldn’t be forced into doing things with our bodies that we do not want to do.”

Performers currently planning to join the press conference and rally include Alex Chance, Abby Cross, Shay Fox, Tara Lynn Foxx, Jessica Jaymes, Kagney Linn Karter, Keiran Lee, Tony Martinez, Alexis Monroe, Chanel Preston, Natasha Star, Alison Tyler, Heather Vahn, Taylor Wane and Prince Yahshua, as well as adult industry personalities Michael Fattorosi, Michael Whiteacre, Tod Hunter, photographer Rick and director Mo.

Adult industry professionals who want to participate and mainstream press who want to arrange interviews should contact Rick Garcia on Twitter at @IndustryByRick or Benjamin Free on Twitter at @LAPornTours.

Several More Reasons to Vote Against B

One issue that is yet to be discussed is the permanency of the law if Ballot Measure B is passed. While some may realize that it may be challenged in a court of law what many do not realize about B, or any other ballot measure, is that once passed it cannot simply be overturned by an act of an legislative body. Which means if B passes the only way to get rid of it is if there is another ballot measure to repeal it. And that almost never happens. Once law, it will be law for a very long time – quite possibly forever.

For example, Proposition 13, a California ballot measure that was passed in 1978 to reduce property taxes paid by homeowners in California ( Please see: http://en.wikipedia.org/wiki/California_Proposition_13_%281978%29 ). It intent of Prop 13 was to limited the amount of tax that can be assessed on real property. Through-out the years Prop 13 is often cited as one of the main reasons behind California’s economic woes. To many it has crippled the California government is being able to balance the state budget. It was legally challenged but the United States Supreme Court upheld its constitutionality in 1992. Many governors since 1978 have wanted to abolish the tax restrictions in place since 1978 but have not been able to challenge the law with the voters.

This will be the exact situation the industry will face if Ballot Measure B passes. If the law withstands a legal challenge in the courts it will require another public vote to repeal it. It will not be sufficient to lobby against this law with local or even state level politicians in the hope they would act to repeal it. Not only does the industry need to realize this but also the tax payers of Los Angeles County.

Also, while the initial law seems to indicate that the permit fees paid by the those requiring to secure the permit will pay for the enforcement of the law, it should be noted that this funding requirement can be changed sometime in the future by the Los Angeles County Board of Supervisors.

According to Ballot Measure B, the ordinance can be amended by the Board of Supervisors ONLY to further the goals of the measure. Meaning they can vote to change anything in regards to the law if those changes enhance its effectiveness. Which basically means that they can, sometime in the future, amend the law to shift the burden of enforcement to the tax payers. If the Department of Health realizes that no one is securing the necessary permits and therefore there is not enough money for enforcement, the Los Angeles Board of Supervisors could budget county tax dollars to spend on inspections and enforcement of Measure B.

Another legal issue I see with Ballot Measure B is the ability for a Los Angeles Department of Health inspector to enter the private residence of Los Angeles’ citizens at will and without a search warrant in order to perform an inspection. Ballot Measure B makes no distinction between a business location and a private residence in regards to inspections. As I had discussed in prior articles, Ballot Measure B also applies to married monogamous couples that live web cam with each other. It’s not limited to just “traditional porn production companies.” It would also apply to any adult performer that may also produce content for his/her website. Usually performers do not have a studio address and many work out of their home. With Ballot Measure B, a health inspector will have the right to knock on the door of performers with websites and search their homes and records.