Intervention by Zuzanna Muskat-Gorska, Global Trade Union HIV/AIDS Coordinator the International Trade Union Confederation
The ITUC would like to share some experiences on HIV and employment related discrimination.
What we observe is that HIV employment discrimination remains a huge problem – this is well demonstrated in the Stigma Index research; HIV related employment discrimination cases rarely hit the courts (which might indicate problems with access to justice); and when such cases reach the courts, judges have problems with ruling dismissal on grounds of HIV status illegal, as well as with ruling employment related HIV testing illegal (which might indicate problems with both contents of laws and with law enforcement).
In 2004 in Botswana there were 2 ground-breaking cases related to HIV related employment discrimination. In one of them a young woman was dismissed when she refused to go for HIV testing, in the other a young man was sent for HIV test, he tested positive, the doctor sent results directly to the employer, so the worker was informed about being HIV positive by the employer, together with getting the dismissal letter.
We know this is a common practice and problems are not limited to high prevalence countries. For example this year a survey by the Dutch organization AIDS Fonds showed that nearly half of Dutch companies prefer not to employ PLHIV on permanent contracts.
So there is a need to recognize the following: HIV employment discrimination persists and most often it starts with workplace disclosure. Disclosure is often forced (also by law) – taking the form of mandatory HIV workplace testing (including, but not limited to – for certain occupations, for migrant workers, armed forces etc). Even if some sort of consent is in place, we do not know how meaningful this consent is – there is a power balance in the workplace and people are dependent on their employers. If the refusal to undergo a test results in dismissal, this is not a voluntary testing.
To conclude, our common goal is to create legal conditions for safe workplace disclosure – that results in accomodation, not dismissal. But till then eliminating forced or disguised forced employment HIV testing and discrimination, including by examining how consensual the consent to HIV workplace testing is – is a key to national HIV responses, access to prevention and treatment, empowerment and quality of life of PLHIV and we need to look much closer at national legal environments in this area.