International and Comparative Law of HIV Employment Discrimination

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Information about International and Comparative Law of HIV Employment Discrimination
News & Politics

Published on March 5, 2014

Author: IndyJ02



Presentation to the HIV Law and Practice Conference, Atlanta, Georgia, March 1, 2014

Andrew Novak, Esq. March 1, 2014

 Convention on the Rights of Persons with Disabilities  International Labor Organization Resolutions  International Administrative Materials

 Entered into force in May 2008. 158 signatories, 141 ratifications (the U.S. Senate has not ratified).  Does not mention HIV/AIDS and does not define disability (this was deliberate), but modeled on Americans with Disabilities Act. Guidance documents specifically include HIV/AIDS.  Committee on the Rights of Persons with Disabilities, in Optional Protocol: 92 signatories, 79 parties.  Committee composed of 18 independent experts; sits in Geneva twice per year.  Committee accepts individual complaints of discrimination, so long as they are not anonymous, duplicative, incompatible with the Convention, or frivolous.  MUST exhaust all domestic remedies.

 Discrimination (Employment and Occupation) Convention of 1958 prohibits employment discrimination on the basis of race, color, sex, religion, political opinion, and national or social origin. Ratified by 172 out of the 185 members of the ILO.  Recommendation Concerning HIV and AIDS and the Right to Work (2010): Prohibits employment discrimination on the basis of real or perceived HIV status, including opportunistic diseases. Also sets occupational health guidelines.

 United Nations HIV/AIDS Personnel Policy prohibits HIV employment discrimination in all UN agencies. Ratified by the executive heads of every agency in 1991.  UN Plus is an organization of UN employees living with HIV that advocates for removal of travel restrictions and access to HIV treatment in hardship postings.  United Nations Dispute Tribunal found possible HIV discrimination in Applicant v. Secretary General of the UN (Aug. 20, 2010), UNDT/2010/148. In that case, Applicant made a personnel complaint that stress of his office contributed to health condition, but no investigation took place. He medically separated from service.  Similar frameworks in World Bank, IMF.

 German Federal Labor Court (Bundesarbeitsgericht) decision in 6 AZR 190/12 (Dec.2013)  India: HIV/AIDS (Prevention and Control) Bill of 2014  Allpass v. Mooikloof Estates (Johannesburg Labour Court, Feb. 2011)  I.B. v. Greece (European Court of Human Rights, October 2013)

 Facts: Lab technician in a “clean room” of a pharmaceutical’s cancer treatment laboratory suffering from asymptomatic HIV. Terminated in compliance with company policy prohibiting persons with infectious diseases in the laboratory.  Holding: Unlawful employment discrimination based on disability. Despite the tiny risk of a needle stick injury, employer required to provide reasonable accommodation (now required by CRPD, EU/German law).  The fact of asymptomatic HIV was irrelevant: stigma and prejudice were enough to make it a disability.

 Introduced in the upper house (Rajya Sabha) of India’s Parliament on Feb. 11, 2014. Bill first introduced in 2006, but moved for discussion for the first time.  Prohibits discrimination in employment, education, health care, public accommodation, housing, custody, and insurance, against persons with HIV/AIDS.  Also includes provisions on informed consent to testing, non-disclosure, confidentiality, ARV access, precautions for occupational exposure, penalties.  Creates ombudsman to hear complaints of discrimination.

 Facts: Horseback riding instructor at equestrian center. Stated he was in good health in initial application, but had been living with HIV for 18 years and had undetectable viral load. Terminated when he disclosed his status in later interview.  Case brought under Labour Relations Act, found to prohibit HIV discrimination in Bootes v. Eagle Inc. System (2008) unless HIV-negative status was inherent job requirement.  Employment Equity Act of 2008 forbade HIV discrimination. Descends from ILO Employment Discrimination Convention of 1958. Hoffman v. South African Airways (2000): HIV discrimination unconstitutional.

 Facts: Applicant worked in jewelry store and admitted to colleagues his fear that he contracted HIV. When his diagnosis was confirmed, his colleagues protested to the company that he had HIV and demanded his termination. To protect intra-office harmony, he was terminated.  Lower courts found this to be unlawful discrimination, but the Court of Cassation (highest court) reversed.  European Court cited ILO materials, European Parliament, Hoffman v. SA Airways, and found violations of Article 8 (privacy) and Article 14 (equal treatment) of the European Convention on Human Rights because Court of Cassation did not explain why employer’s interests outweighed employee’s.

 Why does international law matter?  In countries with older constitutions, ratifying a treaty is often accompanied by domestic implementing legislation.  In countries with newer constitutions, ratifying a treaty automatically becomes part of the country’s domestic law.  In the Bundesarbeitsgericht case in Germany, court cited CRPD.  In the Allpass decision in South Africa, court cited ILO resolutions.  Rajya Sabha in India also considering Rights of Persons with Disabilities Bill of 2014 to bring domestic legislation into conformity to CRPD.

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