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SAN FRANCISCO -- A ruling permitting a worker to sue his employer for keeping a list of AIDS and HIV cases should prompt employers to consider more carefully how they accommodate disabled workers and employees' privacy rights, a defense lawyer said.
A California appeals court ruled this month that Delta Air Lines can be sued for libel and slander for compiling what it called a "secret" list of HIV-infected workers. The court rejected Delta's argument that the airline was merely accommodating ill employees.
California's 1st District Court of Appeal in San Francisco overturned a lower court, ruling that preparation of a list of workers in a San Francisco office who are HIV-infected or who have AIDS might not have been calculated to further a legitimate interest.
Similar litigation problems could arise in other areas such as psychiatric issues, said Susan R. Denious, a partner specializing in employment litigation for the Sacramento, Calif., firm of Kronick Moskovitz Tiedemann & Girard.
"There is a built-in tension there; if you go too far to one side, you are going to violate the other side," she said. "This might be the tip of the iceberg in terms of potential problems for the future."
The Court of Appeal so far has not published its Aug. 7 decision in Andre Baldanza vs. Delta Air Lines. Without publication, the decision does not have precedent-setting value, attorneys said.
However, Lawrence S. Viola, a partner in the San Mateo, Calif., firm of Knapp & Viola, said he will ask the court to publish the decision. Mr. Viola represented Mr. Baldanza, a Delta reservations sales agent who does not have HIV or AIDS. His name was added to the list of about a dozen employees, though, after he missed several weeks of work.
Delta did not return phone calls, but the airline has not decided whether to appeal, said Delta lawyer Gilmore F. Diekmann Jr., a partner in the San Francisco office of Bronson, Bronson & McKinnon. The state Supreme Court rarely hears cases where the decision is not published, though.
The appeals court ignored evidence that the list was used to establish that a relatively high number of employees with the human immunodeficiency virus or acquired immune deficiency syndrome work in the facility, Mr. Diekmann said. That information then led to training supervisors so they could better counsel the employees on topics such as their employer-provided benefits, he said.
Essentially, the court ruled against Delta for trying to comply with mandates that it accommodate ill and disabled workers, Mr. Diekmann said.
Justice Michael J. Phelan wrote that the appeals court found it "curious that Delta decided to single out one class of disability for such treatment."
"It does not appear to have been normal policy or procedure to categorize and compile lists of ill or disabled employees as part of a strategy for accommodating those employees, or for any other reason," the justice wrote for the court.
Mr. Diekmann said the court is incorrect, as Delta has taken similar action to help employees with other disabilities or illnesses. He characterized Delta's information on employees with HIV or AIDS as a report, not a regularly updated list. Delta keeps similar reports for workers compensation claims and pregnant employees, he said.
Because employers must comply with the Americans with Disabilities Act, risk managers may need to change their traditional orientation of developing pre-emptive programs for the entire workplace, Ms. Denious said. Instead, they may want to only assist individual employees who request help and have documentation asserting they need special accommodation.
"Don't look heavily at a diagnosis," such as AIDS, Ms. Denious advises. "Sometimes you don't want to know, because if you have that, then people are going to claim you discriminated against them because you knew they had whatever the problem is."
Mr. Diekmann said Delta did not act maliciously. Also, the court in its opinion "went out of its way to use overstatement or implied accusation or allegation, which is atypical of a Court of Appeal decision," he said.
The ruling contains statements based on speculation and not supported by evidence, he added.
Justice Phelan also wrote that, for some purposes, an employer may have a legitimate interest in compiling employees' private medical information, but only if disclosure of the information is authorized by statute or the employees have knowingly and voluntarily consented in writing to disclosure of specific information for specific purposes.
But Delta kept its list secret from employees, according to the court.
"It is, in any event, difficult to imagine how Delta hoped to accomplish its stated purpose -- meeting its obligations with respect to accommodation of ill or disabled employees -- by preparing a secret list of such employees," Justice Phelan wrote. "If Delta had a bona fide interest in providing effective, reasonable accommodation to the employees on the list, it would have had to communicate with those employees about the matter."
The report was compiled after a new manager in San Francisco reported offhandedly to supervisors in Atlanta that there was a high incidence of employees with HIV or AIDS at the San Francisco reservation sales office, Mr. Diekmann said. In 1991, the manager also met with supervisors to discuss the number of people who might suffer from the ailments, according to court documents.
Mr. Baldanza had received a tattoo a year earlier and afterward suffered from exhaustion and flu-type symptoms. Mr. Baldanza had expressed concern at work that he might have AIDS, a supervisor reported, according to court records.
His name was added to the list of employees that identified him as possibly HIV-positive. After having the tattoo removed, Mr. Baldanza returned to work.
But according to court records, he was ostracized and filed suit in 1992 against Delta. He claimed libel, slander, false light invasion of privacy, and intentional and negligent infliction of emotional distress.
A San Mateo County Superior Court granted Delta summary judgment, finding that the list is privileged. California civil code states that a communication may be privileged when a communicator and recipient share a common interest and their communication furthers that interest.
The lower court also found that the San Francisco manager's testimony from a previous trial was privileged.
But the appeal court disagreed. An employer has a legitimate interest in communicating honestly and freely with employees. But employers do not have license to discuss and disseminate intimate details of an employee's life and health without the employee's knowledge and consent or some compelling reason for the communication, the court found.
The appeal court agreed that Mr. Baldanza cannot sue for false light invasion of privacy because the list was not disseminated to a large number of people. But the other claims can be tried, the Court of Appeal ruled.
Andre Baldanza vs. Delta Air Lines, 1st District Court of Appeal; No. A075614