Nicolosi, Michael

NAME: Michael Nicolosi

Biography: [AIDS Quilt is here.]

[AIDS ISSUE CONFRONTING LOCAL FIRMS POLICIES ON DEALING WITH AFFLICTED EMPLOYEES ARE RARE]

Source: Terry Bivens, Inquirer Staff Writer Michael Nicolosi learned in February that he had contracted the deadly disease AIDS. He informed his employer, the Flower Basket at the Reading Terminal Market, and was told that his job was safe so long as he was able to work. After a two-month recuperation, the 23-year-old Philadelphian felt well enough to return to the job over the busy Easter weekend. But on the following Tuesday, Nicolosi contended in a suit, the owners of the Flower Basket told Nicolosi that he was too sick to workPublished on 1985-11-24, Page A23, Philadelphia Inquirer, The (PA)

[Legacy of Michael Nicolosi]

"In a real sense, the AIDS Law Project is the legacy of Michael Nicolosi"

The AIDS Law Project Reflects on Its Roots and What it Still Has to Overcome

The following article appeared originally in The Philadelphia Lawyer, Vol. 66, No. 4 (Winter 2004), the quarterly magazine of the Philadelphia Bar Association, and is reprinted with permission.

By David W. Webber

This year marked the fifteenth anniversary of the founding of the AIDS Law Project of Pennsylvania. To explain how the AIDS Law Project came into being in 1988 requires describing two very different men. One of them you’ve probably never heard of; someone who, in a sense, was lost to history. The other is just the opposite.

Public interest lawyers everywhere are well acquainted with this kind of story. We know very well the difference between the powerful and the disfranchised, between those of authority, privilege and wealth, who nevertheless live in moral poverty, and those who are often economically poor, yet through strength of will evade the label of “victim” and the passivity and powerlessness implied by that label.

First, Michael Nicolosi, who filed the first AIDS discrimination case in Philadelphia. He was referred to me in 1985 by the then-nascent AIDS Task Force. At that time, the AIDS Task Force had only a part-time paid staff social worker, so the organization depended almost entirely on volunteers for its services, including those of an Advocacy Committee. I wasn’t alone in these efforts by any means. Public interest stalwarts Larry Frankel and Len Rieser were both active attorneys with the Advocacy Committee in those early days.

Whether Michael was my first client with AIDS I don’t recall. Certainly he wasn’t the first person with AIDS that I knew. A former college classmate of mine was very likely one of the first people with AIDS in Philadelphia. He had a healthy sexual appetite and he always seemed to find partners to satisfy it. At the time, of course, we had no idea about the peril involved, or the wave of suffering and death that was about to engulf us.

Sometime in 1981, my college friend developed a group of strange symptoms: severe sweating at night, fevers, diarrhea. The doctors had no name for this mysterious illness, yet they described it as “life threatening.” By 1982, he was dead, less than a year after the first cases of this illness were reported in the U.S. Public Health Service’s Mortality and Morbidity Monthly Review. Reports about this illness were just beginning to appear in the popular press, and we knew little about what caused the illness and how—or even if—it might be caused by an infectious agent.

Not too long before he died, my friend stopped to see me on his way home from the gym. After he left my apartment, I realized he’d inadvertently forgotten to take with him the towel he was carrying. I put it on a shelf in the closet and left it there for many months, wondering uneasily whether it might carry the germs that had caused his illness.

By the time Michael Nicolosi came to see me in 1985, we knew a lot more. By 1984, the blood-borne virus that causes AIDS was definitively identified, confirming the theories that the disease was transmitted by sexual contact and blood-to-blood exposure. And by 1985 a blood test to identify antibodies produced in response to this virus was licensed by the FDA. But it would be another two years before the publication of Randy Shilts’ And the Band Played On, the best-selling account of how ignorance and fear was fueling the epidemic. And it would be another eight years before Tom Hanks’ Academy Award-winning portrayal of a lawyer with AIDS in the movie “Philadelphia” would make defending people with AIDS respectable.

Michael, a slender, exceedingly polite young man, had worked as a clerk in a Center City florist’s shop. His firing probably didn’t make much sense to him, but he was clear about how unfair it was. Michael wanted to keep working, to maintain some semblance of normalcy in a life that had been turned upside down by his diagnosis. He came in to work, even though not yet fully recovered from the bout of pneumonia that led to his AIDS diagnosis, and he did his job, getting through an Easter weekend—the busiest time of the year in the shop. His boss, who knew Michael had AIDS, rewarded that display of loyalty by immediately firing him.

I deposed Michael’s boss. Why had he fired Michael? His answer was simply, “He was not working at 100 percent.” That observation was unremarkable enough. After all, Michael was just recovering from pneumonia. But Michael didn’t let that stop him from returning to work.

It has been almost twenty years, and perhaps it was just my naivete as a young lawyer at the time, but I still can recall being almost stunned by the boss’ matter-of-fact yet callous explanation about what he saw that caused him to fire Michael: the way he locked up the shop after working a busy eight-hour-plus workday.

“He couldn’t close the rolling grills properly,” the boss explained.

“What problem did he have with the grills?” I asked.

“Locking them.”

“You mean he couldn’t lock them?”

“Normally,” he explained, “you can just bend over and snap the thing and it locks and Michael couldn’t do that.”

“So he would, what,” I asked, “he would pull it down and then . . . ?”

“Then he would sit on the floor,” he answered.

“And lock it?” I asked.

“And lock it,” he admitted.

He added, “Michael just didn’t look good” and “just didn’t look himself.” It wasn’t that Michael couldn’t do the job. It was simply that his boss didn’t like the way he was doing it; he didn’t like what he saw, and if the boss could observe that, so could others.

As it turned out, about a month after being fired, Michael was back in the hospital. He was soon discharged, but he never regained his health. Although we had only recently filed suit, I began to schedule Michael’s videotaped deposition to preserve his testimony for a post-mortem trial. But as his health declined, he began to lose interest in his case, and he authorized settlement. A month later, Michael was dead. He was 23. He was probably penniless.

To comply with the terms of the confidentiality agreement, all I can say about the settlement amount is that it was a “satisfactory settlement.” But needless to say, this wasn’t a case about money.

Michael needed the money from his job, but more than that, I think, he needed the dignity that comes from productive employment, and he wasn’t about to go quietly away and die. Back then, everyone spoke of “AIDS victims.” Michael resisted being that kind of victim. He wasn’t an AIDS victim; he was doing his best to live with AIDS. It wasn’t easy, it was a struggle for Michael, and he suffered. But at the same time, he did a series of television and newspaper interviews, putting a human face on the epidemic for the first time locally. In doing so, I think he awakened in many people a sense of compassion for those with AIDS where previously the response was only fear.

In addition to his private lawsuit, we had also filed a charge with the Philadelphia Human Relations Commission. Not long after Michael died, the Commission issued a brochure on AIDS discrimination in which they touted their success in settling the first AIDS discrimination case in Philadelphia—obviously a reference to Michael’s case. Michael would have been pleased to see them making a point that might deter employers in the future from doing to others what his employer had done to him.

I took no fee. How could I? As I was soon to learn, these cases involved clients with no future earning capacity, and any settlement, no matter how generous, was all they had to live on. And pre-trial settlements were preferred; clients were unlikely to survive to a trial date, even on an expedited schedule. A nonprofit organization, with funding provided from sources other than client recoveries, was necessary.

So, one of the reasons for the AIDS Law Project was Michael Nicolosi and others with AIDS who simply weren’t going to accept the shameless treatment they were receiving from employers, providers of health care and dental services, and the government itself. They needed access to the legal system, and they needed the help of lawyers who would provide it. Because many in the legal community understood this, starting the AIDS Law Project was not as difficult as it might seem. Plenty of lawyers were willing to volunteer, and those who couldn’t volunteer their time got out their checkbooks.

Far removed from the world of Michael Nicolosi, the other side of this story is personified by a man of prestige and power: Ronald Reagan.

Two years had to pass after Michael Nicolosi’s death before President Reagan would speak publicly about AIDS for the first time. That was six years after the first AIDS cases had been identified. And the nation’s surgeon general at the time, C. Everett Koop, M.D., who today enjoys a reputation as a leader in the fight against AIDS, abided by a bureaucratic gag order and did not speak publicly on AIDS issues during the first half of his tenure.

Finally in 1987, the President responded to the epidemic in the way the government so often responds to a controversial problem: he appointed a blue-ribbon commission. But when his own AIDS Commission recommended a year later that we needed strong AIDS non-discrimination standards, the administration refused to endorse that recommendation. It would take another four years before Congress addressed AIDS discrimination by enacting the Americans with Disabilities Act.

We in the law reached what is probably the low point with the Reagan Administration one day in 1986, when the Justice Department issued a memo concluding that discrimination against someone with AIDS was not illegal under the Rehabilitation Act if that discrimination was based on the disease’s contagiousness. That memo, replete with all the usual trappings of thoughtful legal scholarship (including, believe it or not, a clever reference to a Sherlock Holmes story), was intellectually dishonest, the worst sort of legal sophistry, devoid of any moral perspective on the law. But before the day was out, a local television station was on the telephone asking for an interview in response to the DOJ opinion. “What’s your reaction,” they asked, “now that the Department of Justice says federal law doesn’t protect your clients from discrimination?”

So there I was, standing at the corner of Broad and Walnut streets, giving a live television interview for the five o’clock news. I tried to hide my anger and despair over this latest reason for anger and despair. Instead, I tried to remind the viewers that the Rehab Act applied to a limited number of employers, while Pennsylvania law, more broadly interpreted by the Pennsylvania Human Relations Commission, applied to far more employers. Yet I knew that nothing I could say would change the fact that the federal government had abandoned any leadership role regarding the civil rights of people with HIV/AIDS.

Giving the legal green light to discrimination under the Rehab Act was a profound message about how our society should respond to the epidemic. I can’t help but wonder how the history of the epidemic would have been different if in those early years the national response had been something other than indifference to human suffering. I wonder how that history might have been changed if we as a society had been hostile, not to people with AIDS, but to the virus that causes AIDS. As an indication of the lack of persuasive power of that DOJ memo, its conclusion was repudiated less than a year later by the Supreme Court, albeit in a 5 to 4 vote, in its landmark Arline decision. The Department of Justice then rescinded it a year later. But it should come as no surprise that in that same year, ten percent of Philadelphia employers surveyed readily admitted that they would fire an employee with AIDS.

In a real sense, the AIDS Law Project is the legacy of Michael Nicolosi, while the Reagan Administration, in contrast, left us with nothing but a legacy of shame. I’m proud to have been on Michael’s side, and I’m proud of what his legacy has achieved. Over the past fifteen years, the AIDS Law Project has assisted more than 20,000 clients, undertaken high publicity, precedent-setting litigation and presented countless public education programs on HIV/AIDS legal issues. Now with a staff of fourteen, the AIDS Law Project is unique in the country as a statewide nonprofit public interest law firm, not affiliated with any other advocacy organization and providing a wide range of services from civil rights litigation to public benefits advocacy to estate planning exclusively in response to the epidemic.

Complacency, however, has no place in this epidemic. There are a number of social, legal and policy issues that need urgent attention.

Our society is by no means free from attitudes that result in discrimination of the sort experienced by Michael Nicolosi. Often these cases arise from a failure to comply with confidentiality standards, such as those imposed by the state Confidentiality of HIV-Related Information Act.

Preventing transmission among injection-drug users should be a high priority, yet Pennsylvania is currently one of only a handful of states that as a matter of law still require a prescription for over-the-counter syringe sales. While we’ve had a syringe exchange program in Philadelphia since 1991, it can’t possibly meet the needs of the estimated 51,000 injection-drug users in the area. This lack of sterile syringes for addicts continues to be the most significant factor causing new cases of AIDS in Pennsylvania. And Philadelphia’s syringe exchange program is only one of two such legally authorized programs statewide. State funding for such programs should also be authorized.

Although HIV transmission rates are high among sexually active young people, school districts across the state have failed to develop appropriate sexuality education curricula, including instruction on the use of condoms. For too many years, the Philadelphia School District’s program has operated on a “pilot” basis, available only at a limited number of schools.

Statewide in Pennsylvania, more than sixty percent of adult AIDS cases are reported among African Americans and Hispanics. This is a shocking statistic, and it should cause us to consider the complex link between disease and poverty and how our attitudes about race perpetuate the problem.

Our duty, as members of the most privileged of professions, should be to always help those most vulnerable in our society. That principle was behind the AIDS Law Project at the start fifteen years ago, and it’s just as vitally important today.

Picture: (Insert picture if available)

Date of Birth: 7/10/1961

Date of Death (delete if non-applicable): 10/1985

Age at Death (delete if non-applicable): 24

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