International and Comparative Law of HIV Employment Discrimination
Andrew Novak, Esq.
March 1, 2014
Convention on the Rights of
Persons with Disabilities
International Labor Organization
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
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.
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
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
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
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.