While there has been no judgement announced in either the U.S. Equal Employment Opportunities Commission complaint filed by Lambda Legal, or the San Francisco Human Rights Commission complaint regarding the firing of HIV-positive gymnast Matthew Cusick (decisions on both cases should be coming this month), we were able to get results on some of our research.
The San Francisco Human Rights Commission kindly made available to us a copy of their November 21 complaint and Cirque’s December 12 response (through their legal representative Kamer Zuker Abbott of Las Vegas). We thought you’d be interested in some excerpts.
In the complaint, signed by Larry Brinkin, Senior Contract Compliance Officer, the Commission alleged four complaints, to wit:
“1. That Cirque du Soleil does not and will not hire people with HIV to be porters, acrobats, or performers on Chinese poles;
“2. That this policy does or would apply to other positions identified by the company as being “unsafe” for co-workers or members of the public should people with HIV be hired.
“3. That this policy applies to productions taking place on City-owned property; specifically, Parking Lot A at Pacific Bell Park in San Francisco.
“4. That this policy was demonstrated by the termination of Matthew Cusick, a self-identified man with HIV, from a Cirque du Soleil production in Las Vegas.”
The letter asks for a response and paperwork backup from Cirque to include (paraphrasing here):
* Policies regarding employment of HIV-positive individuals.
* Positions for which HIV-positive people would not be hired.
* Documents written by medical authorities which recommend not hiring HIV-positive people for positions such as Cirque has.
* Other companies policies supporting the idea of not hiring HIV-positive people.
* “Universal precautions” policies in place at Cirque.
* Questions concerning how Cirque knows the HIV status of its employees for positions where the company believes HIV to be an issue.
Pretty much a laundry list of requests for proof of denial of the complaints. Cirque responded to the letter on December 12 (written by Scott Abbott). In addition, two senior vice-presidents met with the Commission in San Francisco on December 15.
There’s been some confusion in the fan community over why United States laws would effect a Montreal, Quebec, Canada company. The entity involved here is “Cirque du Soleil America, Inc.” which, among other things, is the company under which La Nouba, Mystere, and O are managed. Since Mystere is the show Cusick was fired from, and CDS America signed the contract for the space at the Pacific Bell parking lot in San Francisco, United States law and San Francisco ordinance apply.
In the letter Cirque denies each of the complaints. They have no policies concerning HIV-positive people, or positions they wouldn’t be qualified for. To do so, the letter states, would be a direct violation of the American with Disabilities Act (ADA). But the letter does go on to state, “The ADA’s protections…are not absolute, however. A disabled individual must be able to perform the essential functions of the job he holds or desires with or without a reasonable accommodation. In addition, the safety and well-being of a disabled individual, as well as his non-disabled counterparts, is a significant concern to all employers…”
Then comes the paragraph that Lambda Legal, Cusicks’ lawyers, has zeroed in on for ridicule. “With respect to Alegria,” says the letter, “…there are many employment positions which would be suited to an individual with HIV (provided other job qualification standards are met). For example, given the touring aspect of the “Alegria” show, Cirque contracts with a temporary staffing service to provide candidates to fill positions in the city where the production will be showcased. In the case of “Alegria” these positions include dishwashers, dining room attendants, prep cooks, box office staff, box office assistants, ushers, hosts/hostesses, food and beverage staff, public sales assistance, merchandising staff and hawkers. Any one of these positions could be filled by an individual with HIV because the jobs to not involve constant bodily contact with others and a high degree of potential injury with possible bodily fluid exposure. As a matter of fact, Cirque does currently employ individuals with HIV.” A footnote for the paragraph states, “Artists and crew for the show are not hired in the touring city, such as San Francisco, inasmuch as these individuals are part of the show’s regular staff. Rather, these positions are filled by individuals who are hired from around the world and trained in Montreal.”
Responding to this paragraph, Lambda Legal quickly put out a press release. “Even 20 years ago, Cirque du Soleil’s comments would be suspect. Today, they are shockingly ignorant,” said Hayley Gorenberg, Lambda Legal’s AIDS Project Director, who represents gymnast Matthew Cusick, who Cirque fired because he has HIV. “If Cirque du Soleil ran the Lakers in the 1990s, Magic Johnson would have been transferred to wash dishes in the stadium restaurant after he disclosed his HIV status. We’ve always said Cirque du Soleil is illegally keeping people with HIV out of certain jobs, despite sound science and common sense, and now Cirque has confirmed that. Whatever Cirque’s formal policies are, it blocks people with HIV from positions where they can safely perform, and that’s discrimination. There has never been a case of an athlete transmitting HIV during performance or competition. Our client’s dream job is to be a performer, not a dishwasher. Because he’s qualified to be a performer and can do that job safely, that’s the job he should have.”
Another interesting quote comes from Cirque’s “Conclusion,” where Mr. Abbott states, “Cirque is currently in discussion with Mr. Cusick’s attorneys to try and resolve that matter. To that end, we have made various offers to Mr. Cusick, which include employment, and are awaiting news from his attorneys in this regard.”
As an exhibit in response to the complaint, Cirque supplied a copy of a page from their “Human Resources Policies and Tour Rules For Artists” (updated Feb 2003). Under item six, which discusses Equal Employment Opportunity, Cirque does indeed state that they shall not illegally discriminate against anyone because of, among other things, “mental or physical disability.” They are very clear that they “…will hire, train, promote, and compensate artists only on the basis of skill, ability, reliability and performance.”
Cirque’s case all along was that Cusick posed a hazard to other performers and audience members in the positions he was hired for. Cusick’s side has been quick to point out that many studies involving contact sports have shown that risk of infection is very low. But Cirque provides what may be the clearest explanation of their concern yet, even though it may be veiled. In discussing how HIV-positive people would be hired as temp workers, the response says, “…because the jobs do not involve constant bodily contact with others and a high degree of potential injury with possible bodily fluid exposure.”
There, in a nutshell, is the general case they have to make to the EEOC. But they will need to be more specific to counter the other sports-oriented studies. They will need to make the case that it’s the combination of the three elements:
* Constant bodily contact (complete support of a fellow performer by hand-to-hand grasping while swinging on a trapeze for up to five seconds),
* High degree of potential injury (from grabbing bars and hand holding, as well as fingernails cutting hands),
* And possible fluid exposure (from open calluses or wounds on fellow performers coming in contact with a freshly-opened, bleeding wound on Mr. Cusicks hands for that mentioned 5-second period of hand-holding.)
…combined together which make an HIV-person unsuitable for, in particular, the high bar catcher position. They need to be able to make the case that the risk of disease transfer is much higher, given the circumstances, than the other contact sports studies have shown.
We’ll report on the findings in either case when they’re made available.
