§ 9.40.090. Affirmative defenses.

A.

Affirmative Defenses—Employment Practices. The affirmative defenses described herein shall be applicable to Section 9.40.040. Any party asserting these defenses shall have the burden of proving their affirmative defense.

1.

Nothing in this chapter shall be deemed to prohibit employment selection or rejection based upon a bona fide occupational qualification. A bona fide occupational qualification exists under this chapter where a defendant can demonstrate that the absence of AIDS (as defined in this chapter) is reasonably necessary to the essence of the employer's business and that all or substantially all persons with AIDS are unable to perform the duties of the position in question without endangering their health or safety or the health and safety of others.

2.

Nothing in this chapter shall be deemed to prohibit employment selection, rejection or assignment where, because a person has AIDS (as defined in this chapter), he or she is unable to perform his or her duties, or cannot perform such duties in a manner that would not endanger her or his or her health or safety or the health and safety of others.

3.

Nothing in this chapter shall be deemed to prohibit employment selection or rejection where it can be demonstrated that the employer, employment agency or labor organization is unable reasonably to accommodate a person who has AIDS (as defined in this chapter) without undue hardship on the conduct of the employer's business.

B.

Affirmative Defenses—Housing, Accommodations, City Facilities and Services and Educational Institutions. The affirmative defenses described herein shall be applicable to Sections 9.40.050 through 9.40.080, inclusive. In any action brought under Sections 9.40.050 through 9.40.080, if a party asserts that an otherwise unlawful discriminatory practice is justified as necessary to protect the health or safety of a person who has AIDS (as defined in this chapter) or the health and safety of the general public, that party has the burden of proving:

1.

That the discriminatory act is necessary to avoid an imminent and substantial risk to the person who has AIDS; or

2.

That the discriminatory act is necessary to avoid a danger to others significantly greater than that posed by persons without AIDS; and

3.

That there exists no less discriminatory means of protecting the health and safety of the person with AIDS or of the general public.

(Prior code § 3-21.09)