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Cahill v. Rosa, 89 N.Y.2d 14 (October 15, 1996).

DISCRIMINATION - PUBLIC ACCOMMODATION - HIV - AIDS - DENTISTS - HEALTH LAWS - HUMAN RIGHTS LAW - EXECUTIVE LAW

PRIVATE DENTAL OFFICES ARE PLACES OF "PUBLIC ACCOMMODATION" WITHIN THE MEANING OF THE HUMAN RIGHTS LAW, THUS DENTISTS CANNOT DISCRIMINATE AGAINST HIV POSITIVE INDIVIDUALS

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

Dr. Cahill and Dr. Lasser, two dentists in private practice, refused to treat patients who were known or suspected to be HIV positive. One patient went to Dr. Cahill's office for treatment of a cracked tooth. The patient voluntarily informed the doctor's assistant that he was awaiting the results of a blood test in order to determine whether he was HIV positive after his exposure to the virus. The doctor's assistant informed the patient that he would be treated only if the test result was negative. In the case of Dr. Lasser, a previous patient was refused treatment after she became HIV positive.

Both patients lodged discrimination complaints with the State Division of Human Rights. The Commissioner sustained the charge and awarded the complainants compensatory damages for their mental anguish. Pursuant to N.Y. Exec. Law § 298 (McKinney 1993), the dentists petitioned for judicial review of the administrative finding. The Appellate Division concluded that the dental practices of the petitioners are not places of public accommodation within the meaning of the Human Rights Law, N.Y. Exec. Law § 292(9) (McKinney 1996), because (1) "dental offices" are not enumerated in the statute, and (2) the offices are privately-owned premises employing the "appointment-only" method of business. Accordingly, the court voided the determination of the Commissioner. The Commissioner then filed motions for leave to appeal.

ISSUE & DISPOSITION

Issue

Whether private dental offices are places of "public accommodation" within the meaning of the Human Rights Law, N.Y. Exec. Law § 292(9) (McKinney 1996).

Disposition

Yes. The Court of Appeals reversed the judgments of the Appellate Division.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

Cases Relied on by the Dissent

  • Daniel v. Paul, 395 U.S. 298 (1969).
  • In re United States Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, rearg dismissed, 60 N.Y.2d 682 (N.Y. 1983).
  • People v. Shapiro, 50 N.Y.2d 747 (N.Y. 1980).
  • People v. Illardo, 48 N.Y.2d 408 (N.Y. 1979).
  • People v. Bell, 306 N.Y. 110 (N.Y. 1953).
  • Randall v. Bailey, 288 N.Y. 280 (N.Y. 1942).
  • Gibbs v. Arras Bros., 222 N.Y. 332, rearg denied, 223 N.Y. 559 (N.Y. 1918).
  • Ness v. Pan Am. World Airways, 535 N.Y.S.2d 371 (N.Y. App. Div. 1988).
  • Seabourn v. Coronado Area Council, 891 P.2d 385 (Kan. 1995).

Other Sources Cited by the Dissent

RELATED SOURCES

COMMENTARY

State of the Law Before Cahill

Before Cahill, at least one case dealt extensively with the interpretation of the statutory definition of places of "public accommodation" for purposes of New York's Human Rights Law, N.Y. Exec. Law § 292(9) (McKinney 1996). In In re United States Power Squadrons v. State Human Rights Appeal Bd., the court explained that the legislature intended the definition of "place of accommodation" to be interpreted broadly. 59 N.Y.2d 401, 410 (N.Y. 1983). On the other hand, Power Squadrons strictly construed the "distinctly private" exception. Id. at 412. In doing so, the Power Squadrons court emphasized that the hallmarks of a distinctly private place are selectivity and exclusivity. Id.

Courts dealing with the construction of the phrase "wholesale and retail stores and establishments dealing with goods or services of any kind," have concluded that the phrase "wholesale and retail stores" was intended to modify the phrase "establishments dealing with goods or services of any kind" with the result that the entire phrase deals essentially with places akin to stores. See Sattler v. City of New York Comm'n on Human Rights, 580 N.Y.S.2d 35 (N.Y. App. Div. 1992) (holding that the term "retail" modified "establishments" in an analogous New York City Administrative Code provision so that a dental office was not a public place and not subject to a ruling that refusal of treatment discriminated against a person with HIV); Rochester Hosp. Serv. Corp. v. Division of Human Rights of the Executive Dep't, 401 N.Y.S.2d 413 (N.Y. Sup. Ct. 1977) (holding that if "establishments" was meant to stand unmodified there would have been a comma in place of the "and" following the word "stores").

Effect of Cahill on Current Law

The question whether dental offices are places of "public accommodation" is relatively new. The court itself points out that before the advent of HIV and AIDS the issue of health care providers being private or public within the meaning of the Human Rights Law was largely unaddressed.

In holding that dental offices are places of "public accommodation" for purposes of New York's Human Rights Law, the court focuses its analysis on statutory construction. Like Power Squadrons, the court initially determines that the Human Rights Law must be construed liberally to achieve the goals of the statute. Keeping in mind its objective of liberal statutory construction, the court resolves that the enumeration of examples of places of "public accommodation" in the definitional section of the Human Rights Law is not exclusive. Although dental offices are not specifically listed in the public places definitional provision, the court nevertheless holds that the provision includes them.

Relying on Sattler, the petitioning dentists in Cahill argue that the phrase "wholesale and retail stores and establishments dealing with goods or services of any kind," N.Y. Exec. Law § 292 (9), limited the statute's application to stores. Petitioners contend that the phrase "establishments dealing with goods or services of any kind" was modified by the phrase "wholesale and retail." The Cahill court rejects Petitioners' contention and explains that the statute applies to establishments of any kind, not just stores.

Finally, the court determines that the statutory exemption for "distinctly private" places does not include the dental offices in question. The court reaches this conclusion by narrowly construing the exceptions clause to include as places distinctly private only those sites to which admittance is selective or exclusive. The court finds that Petitioners had not met their burdens of proving selectivity or exclusivity.

The Cahill court unambiguously holds that unless dental offices can prove they are selective and exclusive, they cannot turn away patients simply because they are infected with HIV. The court makes no radical changes with respect to the rules construing the Human Rights Law. However, its determination that dental offices presumptively violate the Human Rights Law when they refuse to treat patients solely because they are infected with HIV is novel in New York.

Dissent

The dissent expressly rejects the broad construction of the Human Rights Law phrase "place of public accommodation." The dissent reasons that the majority construction rids the phrase of any substantive content and that an "explosive increase" in the jurisdiction of the State Division of Human Rights will occur. Thus, the dissent concludes that "private dental offices" are not places of public accommodation because (1) prior to the 1960 amendment, a dental office would not be considered a "place of public accommodation;" (2) the 1960 amendment only removed the "strict literal limitations as applied to places of public accommodations, resort or amusement;" and (3) the 1962 amendments do not support such an "extreme substantive change."

The dissent starts by pointing out that the majority does not dispute that prior to the 1960 amendment of N.Y. Exec. Law § 292 (9) (McKinney 1996), a typical private dental office would not be considered a "place of public accommodation." It supports its argument by explaining that N.Y. Exec. Law § 292 (9) "defined and limited" the meaning of a place of public accommodation by reference to the phrases "all places included in the meaning of such term" and "it is intended to hereby limit the procedures and jurisdiction of the commission [against discrimination] to such places" as they appeared in N.Y. Civ. Rights Law § 40 (McKinney 1996). Furthermore, the dissent emphasizes that § 40 of the Civil Rights Law lists specific establishments that it claims are quasi-public.

The dissent acknowledges that the list was expanded to reflect evolving public attitudes and again rejects the majority's construction on the grounds that it characterizes as a "place of public accommodation all occupations providing a service availed of by members of the public." Cahill, 1996 N.Y. Int. 183 at dissent para. 7. The dissent explains that the 1960 and 1962 amendments did not change N.Y. Exec. Law § 292 (9) as drastically as the majority holds.

First, the dissent states that while the 1960 amendment removed the "strict literal limitations as to the places of public accommodation, resort or amusement,'" it did not expand the traditional concept of place of public accommodation. Cahill, 1996 N.Y. Int. 183 at dissent para. 9.

Second, the dissent focuses on the 1962 amendments which added eight new categories of places of public accommodation and modified the existing category "retail stores and establishments" by inserting thereafter the phrase "dealing with goods and services of any kind." Cahill, 1996 N.Y. Int. 183 at dissent para. 10. The dissent reasons that the legislature did not intend to create an additional category of places of public accommodation because the "retail" indisputably modified both store and establishment, given that the phrase was set off by commas. The dissent contends that the amendment was a further modification of establishment, specifically noting the absence of additional punctuation. Moreover, the addition of eight specific places of accommodation also demonstrates that the legislature did not intend the modification to create a new separate category because the new category would have encompassed them.

Finally, the dissent concludes that the itemized listing is evidence that only those "providers of important benefits and advantages at essentially public places" that are completely accessible to the public are "places of public accommodation." Cahill, 1996 N.Y. Int. 183 at dissent para. 11. Therefore, a private dental practice located on private lands that treats patients by appointment only is not considered a place of public accommodation because it lacks the requisite characteristics.

Unanswered Questions

The Cahill decision raises the question whether the offices of other professions, such as attorneys or accountants, are now to be considered public places for purposes of the Human Rights Law. The impact of this decision on the discretion of attorneys to select clients remains unclear. Surely, a law office facing a human rights complaint would argue it was selective and exclusive and within the Cahill court's definition of "distinctly private."

The impact of the Cahill decision upon the dental profession itself remains to be seen. Dentists who are concerned about unacceptably high risks of contracting the HIV virus retain the option of making their practices selective and exclusive. The question whether there will be a general movement towards distinctly private dental practices will depend upon the perceived risk among dental professionals of contracting HIV. Whether dental or insurance costs will rise is similarly dependent upon that perceived risk among dental professionals.

One of the legal questions the court leaves for the future is that of determining the requirements to prove that a place is "distinctly private." In Cahill, the court found that the petitioner dentists failed to prove that their practices were distinctly private. The only indication the court gives of how this term is to be defined is that the "hallmark of a private place within the meaning of the Human Rights Law is its selectivity or exclusivity." The factors to which courts must look in order to determine selectivity and exclusivity remain unclear.

Survey of the Law in Other Jurisdictions

The Court of Appeals of Minnesota, in affirming the decision of an Administrative Law Judge, held that a private dental office is a "place of public accommodation" within the meaning of the Minnesota Human Rights Act. Minn. Stat. § 363.01 (1992). Beaulieu v. Clausen, 491 N.W.2d 662, 664 (Minn. 1992). An amendment to the act has since taken effect which allows a safety-based defense to charges of discrimination if the victim of the alleged discrimination "poses a direct threat to the health or safety of others." 1992 Minn. Laws 527 § 14. The court noted that even if the amendment had been in effect at the time of the suit, the dentist's reasons for refusing treatment to an HIV positive individual were scientifically unfounded and thus a mere pretext for discrimination. Beaulieu, 491 N.W.2d at 666.

Similarly, the Supreme Court of Hawaii held, without discussion, that a private dental office is a "place of public accommodation". Doe v. Kahala Dental Group, 808 P.2d 1276 (Haw. 1991). However, the court found the denial of treatment to be proper given the patient's refusal to provide information as to his HIV status.

The Supreme Court of Virginia has indicated that for purposes of the White Cane Act, Va. Code Ann. §§ 35-42.1, 63.1-171.2 (Michie 1950), an act designed to prevent discrimination against the blind, a private medical office is a "place of public accommodation." Lyons v. Grether, 239 S.E.2d 103 (Va. 1977). The court found this to be true even though private doctors have no obligation to honor all requests for treatment.

The Supreme Court of Kansas found that the Boy Scouts of America is not a place of "public accommodation" within the meaning of the Kansas Act Against Discrimination, Kan. Stat. Ann. § 44-1002 (1995). In so finding, the court determined that the act of advertising to the general public does not compel a conclusion that the organization is a "place of public accommodation." Rather, the social nature of the organization combined with its lack of business purpose compels the opposite conclusion. Seabourn v. Coronado Area Council, 891 P.2d 385 (Kan. 1995).

Federal courts have determined that a dental services provider is a place of public accommodation within the meaning of the Americans with Disabilities Act, 42 U.S.C. § 12101 (1990). See United States v. Morvant, 898 F. Supp. 1157 (E.D. La. 1995); see also D.B. v. Bloom, 896 F. Supp. 166 (D. N.J. 1995). However, in order to qualify as disabled, a complainant must demonstrate either that: 1) his or her HIV status has substantially impaired major life activities, 2) he or she has a record of such impairment, or 3) he or she is regarded as having such an impairment. Americans with Disabilities Act, 42 U.S.C. § 12102 (1990). See Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995) (holding that the reproductive function is a major life activity and HIV substantially impairs this function); see also Doe v. Kohn Nast & Graf, 862 F. Supp. 1310 (E.D. Pa. 1994) (holding that one year of HIV positive status is not an adequate record of impairment to show a disability); see also Kocsis v. Multi-Care Management Inc., 1996 U.S. App. Lexis 26783 (6th Cir. 1996) (stating that an employer's perception that an employee is HIV positive may bring the employee within the scope of the Americans with Disabilities Act).

Prepared By:

  • Quentin C. Faust, 97
  • Joshua D. Fuller, 98
  • H. Marlow Green, 97
  • Pamela T. Harris, 98
  • Farah Mollo, 97
  • Phillip M. Pippenger, 98
  • Jared B. S. Steele, 98