KROGER UNIT ACCUSED IN HIV CIVIL RIGHTS CASE

Michael Harrison

COLUMBUS, Ohio -- A Kroger store here has been accused of violating the civil rights of a young boy infected with the HIV virus and may be named in a related civil lawsuit.

The store was named in a formal complaint to the Ohio Civil Rights Commission made by the boy's guardian after he was denied access to an in-store play area called PePe's Playhouse, which serves as a short-term babysitting service. The charge was backed by the commission, which referred the case to the state attorney general's office.

A public hearing is scheduled for April, 1999 at the commission's office here; however, the attorney general's office is trying to mediate a settlement, officials for Kroger and the attorney general told SN.

In the meantime, attorney David Sams, who represents the complainant, Barbara Cordle, told SN, "we are contemplating our own civil action that would seek two things: injunctive relief -- because we want to get him into PePe's Playhouse as soon as possible -- and we would want maximum damages from Kroger. We feel they are openly defying the law." The complaint was filed by Cordle, the boy's guardian and a nurse at the group home for HIV patients where the now seven-year-old boy lives. According to the complaint, she took the boy to the Kroger store in August, 1997, and left him in the care of a babysitter at the play area. She also filled out a registration card. Cordle wrote on the card that if the boy should bleed for any reason, babysitters should don gloves and contact her immediately. Ten days later, Cordle said in the complaint, she was contacted by a store manager and was told her ward would no longer be accepted at PePe's Playhouse.

Kroger spokeswoman Lynn Marmer declined to comment about specifics of the case with SN except to say, "We have been in a conciliation process." Sams said Kroger representatives "offered two proposals" during the ongoing conciliation process and "both were shot down." One, Sams said, was an offer to give the boy "a tour of the store" whenever his guardian shops there. "The other proposal was to admit him to the play area, but every time he came in he would have to have a new doctor's release saying it was safe. The way we view that, is, in reality, it's impossible to comply with," Sams said.

If a civil suit is filed, Sams said it would allege a violation of the state's version of the antidiscriminatory federal Americans With Disabilities Act. In addition, he claims Kroger "defamed the boy and libeled him by saying he is a danger."

The charges of defamation and libel stem from a press release Kroger issued. The release, dated Oct. 2, said in part "children with infectious diseases or contagious illnesses are not accepted in the play area. This policy is uniformly followed in all our in-store play areas, and reflects our concern for the safety and well-being of all children and the peace of mind of parents.

"In this case, the guardian of an AIDS-infected child wanted to leave the child in one of our play areas. We offered to provide temporary babysitting for the child while the guardian shopped, but declined to admit the child to the play area in accordance with our policy."

According to Sams, the boy was born with the AIDS-causing HIV virus but, so far, "[the boy] is asymptomatic. He does not have AIDS." The virus, according to the medical community, can not be spread through so-called casual contact.

Kroger was given written notice Oct. 1 that the company had 28 days to respond to the Notice of Hearing sent by the state civil rights commission.