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• A) Current Legal Position
• B) Comparative Overview

5.LEGAL AND COMPARATIVE PERSPECTIVE

A) CURRENT LEGAL POSITION

5.1 The concept of freedom of contract (the autonomy of the will and the right to choose whether, on what terms and with whom one wants to enter into agreements) is the foundation stone of the socio-economic, legal and political systems of all civilised countries.

5.1.1 When the concept of freedom of contract reached its pinnacle in the nineteenth century, it was as a reaction against paternalism and state interference in the private sphere.^[213] Since that time and until the late 1970s there has been a movement away from absolute freedom of contract: "Government regulation replaced free contract, bureaucracies replaced private parties operating in the open market, markets themselves began to be increasingly dominated by monopolies, and paternalism once again was the order of the day".^[214]

5.1.2 Since then, the pendulum has moved back in the direction of freedom of contract as a fundamental value and freedom: "Once again, we find a strong ideological current, basing itself on the need for political and economic freedom. We find the same faith in Adam Smith and the operation of market forces, the same distrust of government bureaucracies, the same belief in the rights of individual choice".^[215]

5.1.3 Nevertheless, it is widely recognised that freedom of contract cannot be given free rein. Freedom of contract cannot totally exclude public interest. How to protect the interests of the poor, the disabled, those unable to care adequately for themselves and those unfairly discriminated against? Up to the 1970s the tendency was for the state to interfere, by legislation, with freedom of contract especially in the field of labour relations, residential tenancies, credit sales, etc. But since then this solution has come increasingly under challenge: "During the past decade or so the view has been gaining ground, certainly in England, that these contracts should still be left to the market, while we should try to control or handle the externalities by other governmental action. If a tenant is too poor to pay an open market rent, then the tenant should receive some state financial benefit, but the market should be left to operate freely. If employees are not paid a sufficient wage to maintain a family, then the state should contribute some family income support, rather than try to interfere in the employment contract by imposing requirements for minimum wages. Only in this way, it is now being urged, can we avoid the distorting effects on supply and demand of violent interferences with freedom of contract, such as result from controlled rents or minimum wages".^[216]

5.1.4 While it is not clear at what stage of development South Africa finds itself, it is clear that freedom of contract is, in our country, a fundamental, pre-constitutional value. Legislative interference with contractual freedom and the contract mechanism should be limited to the minimum, and should be approached with caution. Above all, a careful balance between freedom of contract and other rights or interests should be maintained so as to avoid the serious consequence which interference with the law of supply and demand can have.

5.2 At present there is no specific statutory prohibition on pre-employment testing for HIV. At common law employers were permitted to subject prospective employees to HIV testing. They were in any event at liberty to exclude job applicants on any ground including, inter alia, race, sex, sexual orientation, disability, and HIV status.^[217] However, the 1996 Constitution and the Labour Relations Act (Act 66 of 1995) (LRA) both proscribe in certain respects unfair discrimination. It may also be argued that pre-employment testing for HIV trenches upon principles underlying the 1996 Constitution. Neither the 1996 Constitution nor the LRA however confer unqualified rights and they may therefore countenance an employer testing an applicant for employment for HIV under certain specific circumstances.

5.3 On 25 March 1997, a cabinet committee asserted that testing for HIV as a prerequisite for employment in the public sector had been abolished. The decision appears to apply to all defence personnel, the police, correctional services, nurses, teachers and other public sector posts. It is supposed to take immediate effect.^[218] The finality and enforceability of this decision are not yet certain.

* The 1996 Constitution

5.4 The 1996 Constitution entrenches, inter alia, the rights to dignity,^[219] privacy^[220] and equality,^[221] the right to be free from unfair discrimination^[222] and from (state or private) unfair discrimination based upon disability,^[223] the right to bodily and psychological integrity,^[224] the right to freedom of expression and to depart information freely^[225] and the right to fair labour practices.^[226] It also grants each citizen the right to choose a trade, occupation, and profession freely.^[227] The 1996 Constitution provides for the limitation of these rights in certain instances where the limitation is reasonable and justifiable.^[228] The conferment of these rights may weigh against the validity of conditioning an offer of employment on an applicant's willingness to undergo an HIV test unrelated to job requirements.

5.5 The Bill of Rights, Chapter 2 of the 1996 Constitution, binds all organs of state.^[229] Regarding unfair discrimination specifically, the Bill of Rights provides: "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds" including race, gender, sex, pregnancy, sexual orientation or disability.^[230] Furthermore, the Bill of Rights in general binds "a natural or juristic person if, and to the extent that, (the right in question) is applicable, taking into account the nature of the right and the nature of any duty imposed by the right".^[231] It is therefore still unclear to what extent the constitutional right to privacy is enforceable against private entities,^[232] or to what extent the common law right to privacy may be expanded or developed to give effect to the Constitution.

5.5.1 While the South African courts have yet to pronounce on the extent of the right to privacy in the context of testing for HIV, other jurisdictions - which our courts may consider in their interpretation of the Constitution^[233] - have accepted that an individual's right to privacy can prevent a state employer from conditioning an offer of employment on the applicant's willingness to take an HIV test.^[234] This is because deciding to take an HIV test - regardless even of anticipated discrimination - is the kind of personal decision that an individual may be entitled to make autonomously and in private.

5.5.2 Even, therefore, if applicants for employment are not discriminated against on the basis of HIV, conditioning employment upon their willingness to take an HIV test may be held to intrude upon their privacy. The question of horizontal application and thus whether the 1996 Constitution reaches the private conduct of individuals in regard to the constitutional right to privacy is still undecided by the Courts.

5.5.3 In the United States, New Zealand, Hong Kong, Australia and Canada, HIV is considered a disability. Making any distinctions based upon the HIV status of an applicant for employment is generally considered unfair discrimination on the basis of disability.^[235]
6.5.4 While exacting a pre-employment HIV test on its own may not violate the right to equality, or constitute unfair discrimination (as opposed to infringement of the right to privacy), knowledge of HIV status is likely to discourage an employer from making an offer of employment to an otherwise qualified applicant.^[236] Unfair discrimination on this basis may violate the right to equality of the applicant for employment. If an employer based decisions solely upon an individual's HIV status, unrelated to projected job performance or job requirements, this would generally be unfair discrimination.^[237]

5.5.5 The 1996 Constitution guarantees the right to choose an occupation freely.^[238] This does not appear to create any form of right to a specific job.^[239] However, the right to choose an occupation freely may weigh against the constitutionality of wholesale exclusion of a category of persons (namely those with HIV) from a specific job position or a whole category of employment positions.

5.5.6 These rights are not absolute. Section 36 of the 1996 Constitution permits limitations which are contained in a law of general application and which are reasonable and justifiable given, inter alia, the nature of the right, the importance of the limitation, its nature and extent, and the availability of less restrictive means to achieve the objective of the restriction. The rights to privacy or equality are thus not absolute. Both could be limited in certain instances. There may be instances where an employer's interest in the HIV status of an applicant is justified. Cases may arise where discriminating between applicants on the basis of their HIV status is fair. Generally, however, such distinctions seem unfair and the intrusions not justifiable.

* LRA

5.6 Pursuant to the right to fair labour practices conferred by section 23 of the 1993 interim Constitution,^[240] Parliament in 1995 adopted the LRA, and amended it in 1996, when the statute came into force. The LRA protects most employees, applicants for employment, and applicants for promotion, training and advancement from unfair labour practices.^[241]

Unfair discrimination on the basis of disability, or on any arbitrary ground, constitutes an unfair labour practice.^[242] Disability discrimination is unfair in terms of the LRA unless it is "based on an inherent requirement of the particular job".^[243]

5.7 Discrimination based upon HIV status could thus constitute discrimination either on the basis of "disability", or on the basis of an "arbitrary ground". In the great majority of cases where an employer uses pre-employment testing for HIV to justify differential treatment, that action seems likely to be adjudged unfair discrimination.

5.8 Where however the employer bases HIV-related discrimination upon an "inherent requirement of that particular job", that discrimination will not be unfair.^[244]

5.9 While the 1996 Constitution might operate to prevent the National Defence Force, the National Intelligence Agency, and the South African Secret Service from testing applicants for employment for HIV,^[245] the LRA does not apply to these bodies.^[246] Furthermore, like the 1996 Constitution, the LRA does not define "disability". It is thus uncertain whether asymptomatic individuals with HIV will be protected from disability discrimination under either the 1996 Constitution or the LRA. The LRA moreover does not prohibit an employer from testing applicants for employment for HIV. It only appears to prevent the arbitrary and unfair use of the results of such a test.

* Case Law

5.10 There is currently no case law in South Africa regarding the legality of pre-employment testing for HIV. However, certain decisions have upheld the right to privacy and bodily integrity in the context of HIV, as well as more generally.

5.10.1 In Jansen van Vuuren v Kruger,^[247] the then Appellate Division upheld and enforced the common law right to privacy in the case of a doctor's unjustifiable disclosure of a patient's HIV status. The Court found that HIV could not be transmitted casually, and that significant public health benefits could be derived from protecting an individual's right to privacy.

5.10.2 In C v Minister of Correctional Services,^[248] Kirk-Cohen J laid out parameters under which an HIV test could be performed. He held that, generally, informed consent was a prerequisite for testing a person for HIV. An individual, he found, could consent to an HIV test only if he or she understood the object and purpose of the test, understood what a positive result could entail, had time and place to reflect on the information received concerning the test, and had the free occasion to refuse to submit to the test.^[249]

5.10.3 The right to privacy, which in South African law derives from the right to dignity,^[250] is closely intertwined with the right to bodily and psychological integrity. In S v A, Botha AJ stated that an infringement upon an individual's right to privacy constituted an impairment of his or her dignitas, regardless of the information gleaned from such an infringement.^[251] The then Appellate Division has characterised the right to privacy not only as protecting the interest in avoiding disclosure of personal matters, but more generally in protecting against "intrusions upon the personal privacy of another".^[252]

5.10.4 The conception of privacy as protecting a sphere of private decision- making has received extensive consideration abroad. There it has been held to protect the autonomous interest in controlling certain kinds of important decisions.^[253] In South Africa, the Constitutional Court in Bernstein v Bester,^[254] appeared to echo these developments by emphasising the connection between the common law and constitutional right to privacy, and underscoring the importance of the rights to autonomy and dignity:

The scope of privacy has been closely related to the concept of identity and it has been stated that rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one's own autonomous identity.

...In South African common law the right to privacy is recognised as an independent personality right which the courts have included within the concept of dignitas.

... [a] breach of privacy can occur either by way of an unlawful intrusion upon the personal privacy of another, or by way of unlawful disclosure of private facts about a person.^[255]

5.10.4.1 By emphasising the relationship between privacy, dignity and autonomy, this judgment suggests that the zone of privacy protected in South Africa could include protection from intrusions into personal decision making. The decision to take an HIV test has been recognised, in the United States and Europe,^[256] as a highly private act. Because of the stigma and discrimination that often result from a disclosure that a person has HIV, HIV status is the kind of information that he or she might want to keep private and/or not to know at all.^[257] Furthermore, forced discovery of one's own HIV status may further have an extremely grave impact on one's life.^[258] Requiring applicants for employment to undergo an HIV test may thus affect their right to privacy, by imposing upon them, prematurely and inopportunely, invasive decisions or knowledge regarding their bodily and psychological integrity.^[259]

5.10.5 In several other Constitutional Court decisions, Justices have explained the particular relevance and import of the right to privacy in South Africa.

5.10.5.1 In concurring opinions in Case v Minister of Safety and Security,^[260] Justices Langa and Didcott noted the backdrop of South African history and the need to be aware of violations of the right to privacy:^[261]

It [the right to privacy] is a right which, in common with others, was violated often with impunity by the legislature and the executive. Such emphasis is therefore necessary particularly in this period when South African society is still grappling with the process of purging itself of those laws and practices from our past which do not fit in with the values which underpin the Constitution if only to remind both authority and citizen that the rules of the game have changed.^[262]

5.10.5.2 The Justices added that where infringements on the right to privacy facilitate infringements of other rights, like the right to equality, they are additionally pernicious.^[263]

5.10.5.3 In Ferreira v Levin and Vryenhoek v Powell^[264] Justice Ackermann explained that:

An individual's human dignity cannot be fully respected or valued unless the individual is permitted to develop his or her unique talents optimally. Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible.

5.10.6 The 1996 Constitution requires that the courts "to give effect to a right in the Bill must apply, or if necessary develop the common law to the extent that legislation does not give effect to that right."^[265] Against the constitutional background sketched above, including this injunction, it may be argued that a requirement to undergo (and disclose the results of) an HIV test in order to procure employment could constitute a violation of the constitutional right to privacy.

5.11 The 1996 Constitution expressly requires the enactment of national legislation to prevent or prohibit unfair discrimination.^[266] To the extent that pre-employment testing for HIV constitutes unfair discrimination, a statute regulating or prohibiting it can be seen as a fulfilment of this injunction. As the Constitutional Court has pointed out, in relation to the equality provision (section 8) under the 1993 interim Constitution:

In drafting s 8, the drafters recognised that systematic patterns of discrimination on grounds other than race have caused, and many continue to cause, considerable harm. For this reason, s 8(2) lists a wide, and not exhaustive, list of prohibited grounds of discrimination.

Section 8 was adopted then in the recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society. The drafters realised that it was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. The need to prohibit such patterns of discrimination and to remedy their results are the primary purposes of s 8 and, in particular, ss (2), (3) and (4).^[267]

B) COMPARATIVE OVERVIEW

5.12 Local, national, and international policy responses that disapprove or prohibit pre-employment testing for HIV are widely spread. These include individual business HIV/AIDS employment codes, the NACOSA National AIDS Plan (adopted on behalf of the government on 21 July 1994),^[268] the Southern African Development Community (SADC) Code on HIV/AIDS and Employment, and the Joint World Health Organisation and International Labour Organisation Statement on Pre-employment HIV testing.^[269]

5.12.1 The European Council and Ministers for Health of the Member States in 1990 resolved:

Any discrimination against persons with AIDS or HIV-positive persons constitutes a violation of human rights and prejudices effective prevention policy because of its effects of exclusion and ostracism ... The greatest possible vigilance must therefore be exercised in order to combat all forms of discrimination particularly in recruitment, at the workplace ... With regard, more particularly, to accommodation and private insurance, solutions should be found which reconcile economic interests with the principle of non-discrimination.^[270] (Emphasis added.)

5.12.2 The International Labour Organisation guidelines, devised in conjunction with the WHO, advise against pre-employment testing. While they are not binding upon member states, courts may take them into account in determining the fairness of an employment practice. The guidelines state:

Pre-employment HIV/AIDS testing as part of the assessment of fitness to work is unnecessary and should not be required. ... People with the HIV virus or suffering from AIDS pose no danger to their colleagues at work. There are hence no grounds for testing potential recruits for HIV.^[271]

5.12.3 The Southern African Development Community's (SADC) Code on HIV/AIDS and Employment, which has now been adopted by the Council of Ministers of SADC, states:

There should be no direct or indirect pre-employment test for HIV. Employees should be given the normal medical tests of current fitness for work and these tests should not include testing for HIV. Indirect screening methods such as questions in verbal or written form inquiring about previous HIV tests and/or questions related to the assessment of risk behaviour should not be permitted.^[272]

The adoption of the Code places an obligation on member states, including South Africa, to adopt national legislation to give effect to the Code.

5.12.4 The AIDS Law Project (a university-based nongovernmental organisation) in conjunction with the AIDS Consortium (an affiliation of organisations that deal with, advocate on behalf of, and provide services to people living with HIV and AIDS) has developed an HIV/AIDS Employment Code of Conduct that has been adopted by various companies and by the union federation COSATU. This states, in relation to recruitment and medical examinations:

Any medical examination undertaken either before employment or thereafter should be solely to determine functional performance, and offer a prognosis of fitness for work of the prospective employee. In this respect ... an HIV test (or any other test that is intended to assess the immune/HIV status of a prospective employee) shall not be a pre-condition of employment and shall not be required under any circumstance or for any occupation, or position ...^[273]

5.12.5 The draft Business South Africa National HIV/AIDS Employment Code of Conduct recommends against "generalised pre-employment testing which denies prospective employees access to employment opportunities on the basis of their HIV status".^[274]

5.12.6 The South African Chamber of Business HIV/AIDS and Employment: Code of Conduct for Employers states that "employers have the right to medically screen recruits for evidence of serious active life threatening conditions and fitness for the job" but that HIV status alone should not be a motivation to exclude recruits.^[275]

5.12.7 The South African Society for Occupational Medicine Guideline on AIDS at the Workplace states that "(T)he Society does not recommend the incorporation of HIV testing at the pre-employment examination". It emphasises that being a carrier of the virus would have no effect on an employee's work capacity, and that there is almost no risk of an infected person passing the virus on to others in the working environment. The Guideline however observes that employees with AIDS can present serious implications regarding employee benefits.^[276]

5.12.8 The LRA empowers the National Economic Development and Labour Council (NEDLAC)^[277] to prepare and issue codes of good practice.^[278] The LRA requires "any person interpreting or applying" the LRA to take into account any relevant code of good practice.^[279] NEDLAC has not adopted a code affecting pre-employment testing for HIV.

5.13 Internationally a substantial body of statutes and case law protects individuals with HIV from discrimination, and prevents employers from requiring applicants for employment to undergo HIV-testing. In addition, general prohibitions against unfair labour practices have been interpreted to prevent employers from testing applicants for HIV. The statutes and judicial decisions reflect a broad consensus that generalised pre-employment testing is ineffective, discriminatory and unconstitutional.^[280] The approach adopted is that pre-employment testing for HIV may be a violation of an applicant's right to privacy that sanctions unfair discrimination while inhibiting prevention efforts by stigmatising people with HIV.^[281] This approach, however, is not unqualified; in some cases it is limited by laws permitting pre-employment testing for HIV under prescribed conditions.

* United States of America

5.14 Thirteen out of fifty American states have specific legislative restrictions that limit pre-employment testing. These include California, Texas and Florida.^[282] Generally the statutes prohibit pre-employment testing unless the proponent of testing can establish that HIV negative serostatus is a bona fide job qualification, or that there is a real risk of HIV transmission in the workplace which cannot be eliminated through less intrusive means.

5.15 In addition, the right to privacy, which the United States Supreme Court has recognised as implicit in the United States Constitution, continues to provide a measure of protection from non-voluntary disclosure of HIV status by state actors. In Doe v The City of New York Commission on Human Rights, the Court stated:

Individuals who are infected with the HIV virus clearly possess a constitutional right to privacy regarding their condition. In Whalen v Roe [1977] the Supreme Court recognized that there exists in the United States Constitution a right to privacy protecting "the individual interest in avoiding disclosure of personal matters." . . . There is, therefore, a recognized constitutional right to privacy in personal information. ...

Extension of the right to confidentiality to personal medical information recognizes there are few matters that are quite so personal as the status of one's health, and few matters the dissemination of which one would prefer to maintain greater control over. Clearly, an individual's choice to inform others that she has contracted what is at this point invariably and sadly a fatal, incurable disease is one that she should normally be allowed to make for herself.

This would be true for any serious medical condition, but is especially true with regard to those infected with HIV or living with AIDS, considering the unfortunately unfeeling attitude among many in this society toward those coping with the disease. An individual revealing that she is HIV seropositive potentially exposes herself not to understanding or compassion but to discrimination and intolerance, further necessitating the extension of the right to confidentiality over such information. We therefore hold that Doe possesses a constitutional right to confidentiality under Whalen in his HIV status.^[283]

5.15.1 The Fourth, Fifth, and Fourteenth Amendments to the United States Constitution prohibit government employers from subjecting their employees to unreasonable searches and seizures, and from restricting liberty without due process of law.^[284] An important aspect of the right to privacy is the individual's interest in avoiding disclosure of personal matters.^[285] As important, the United States Supreme Court made clear in Whalen v Roe, is the right to autonomy and independence in decision-making in personal matters.^[286]

5.15.2 In some instances, United States courts have recognised that the right to privacy is not absolute, and allowed HIV testing where they found a significant risk of HIV transmission, and a compelling governmental interest in preventing that transmission.^[287] Other cases affirm that the right to privacy in the majority of instances generally prevents a state actor from requiring a citizen to take a test for HIV or disclose his or her HIV status.^[288]

6.16 The combination of the Vocational Rehabilitation Act, 1973 (Rehabilitation Act^[289]), the definitive United States Supreme Court decision in School Board of Nassau County, Florida v Arline^[290] and the Americans with Disabilities Act, 1990 (ADA^[291]) have also added substantially to protection against discrimination of HIV infected persons.^[292]

5.16.1 The Rehabilitation Act - which governs federal employers, and contractors and entities receiving federal financial assistance - generally prohibits discrimination on the basis of disability. Section 504 of the Act specifically prohibits discrimination against the disabled who are "otherwise qualified".^[293] In the employment context, an "otherwise qualified" person is one who can perform the essential duties of the job in question.^[294] An employee who poses a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation is not considered to be "otherwise qualified".^[295] This provision has been interpreted by the United States Supreme Court in Arline to extend to persons with contagious diseases (in this case tuberculosis) when the infection does not pose a significant risk of danger to others.^[296] Section 504 state that employers "shall make reasonable accommodation" to the employee's handicap unless they can show that accommodation "would impose an undue hardship".^[297] Since Arline subsequent decisions of lower courts have extended the application of the Act both to individuals who have developed AIDS and to those who have asymptomatic HIV infection.^[298] In addition, courts have granted relief to students denied the opportunity to attend school because of their positive HIV status and to employees discharged from their jobs because of their HIV infection.^[299]

5.16.2 As the Rehabilitation Act had limited application and did not provide comprehensive national protection against discrimination, it was followed by the passage of the federal ADA. This Act provides comprehensive protection, along the same lines as the Rehabilitation Act, against discrimination on the basis of disability - now also in private employment (of a certain size) and public accommodations that are privately owned.^[300] The term "disability" is defined with respect to an individual as -

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.^[301]

The ADA further prohibits employers from excluding workers based on conjecture about potential risks associated with their disabilities. The employer may still discriminate against a disabled individual if the employer shows that the individual poses a "direct threat"^[302] which is defined as a "significant risk of substantial harm" that cannot be reasonably accommodated.^[303] To protect employers it is furthermore provided that employers may escape an accommodation obligation by proving that it would constitute an undue financial or other hardship.^[304] This legislation reflects a policy decision entailing that employers should bear some of the burden of disability. An employer would thus not be in a position to argue that employing a disabled person would impose increased costs, or that training of a person who is terminally ill is futile.^[305]

5.16.3 Pre-employment testing for HIV is not explicitly prohibited under the ADA.^[306] However stringent restrictions are placed on any medical examination made on an applicant for employment by an employer.^[307] This statute, applying to all employers with 15 or more employees,^[308] provides that no employer shall "discriminate against a qualified individual with a disability on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees".^[309]

5.16.4 Under the ADA, an employer may not require an applicant for a job to submit to a medical examination or answer medical inquiries before a conditional job offer has been made to the applicant. After an employer has determined that an applicant possesses the necessary qualifications for a particular job, and has decided to offer the applicant the job, the employer may choose to extend to the applicant a conditional job offer. Once a conditional job offer has been extended, the employer may then require that the applicant undergo a medical examination or answer medical inquiries, and may condition the offer of employment on the results of that medical test or inquiry. However, test must be given to all applicants. Information must be kept confidential. The results of the examination cannot be used to discriminate against a person with a disability if the person is still qualified for the job. The medical examination, in total, can only help the employer determine present ability to fulfill his or her essential job functions.^[310] Generally a person's HIV status is unrelated to the present ability to carry out job functions.

5.16.5 Generally people with HIV are covered under the ADA, and given some measure of protection from discrimination on the basis of their HIV status. The Equal Employment Opportunity Commission (EEOC), which is responsible for monitoring and enforcement of employment standards, has developed Guidance Notes that specify that asymptomatic HIV is a physiological disorder which causes physical impairment,^[311] which is "inherently substantially limiting" because of its effect on decisions regarding reproduction.^[312] Most courts have accepted that HIV is per se a disability. In some instances, courts have required a showing that a major life activity is limited by HIV before accepting that HIV is a disability.^[313] Because HIV is considered a disability, employers are prohibited from making distinctions based upon HIV status that are not justified by the costs of accommodation or the risks of injury arising from the employee's HIV-status.

5.16.6 However, there has been a sizable body of case law concerning whether people with HIV are "qualified to perform essential job functions", when those job functions contain some risk of HIV-transmission. In Doe v District of Columbia the Federal District Court found that an applicant to the fire department with HIV was presently qualified to perform duties without posing risk to himself or the public.^[314] In contrast, in Doe v University of Maryland Medical System Corporation the Appellate Federal Court found that a doctor with HIV was not "otherwise qualified to perform his duties".^[315] Broadly speaking, the difference between these two cases depends upon a different appreciation of transmission risks. The first decision involved an employment offer to a fireman, where the court noted there was almost no risk of occupational HIV transmission. The second case involved the employment of a neurosurgeon with HIV, where there was a cognizable (between one out of 42 000 and one out of 417 000) risk of HIV transmission. In both cases the Court accepted that a person with HIV was covered under the ADA's definition of disability. The Act only provides protection from discrimination if the applicant is "otherwise qualified" to perform essential job functions. Where a person poses, through his or her work, a significant risk to others, that person is not considered "otherwise qualified" to perform essential job functions. Doe v Washington University^[316] and Bradley v University of Texas MD Anderson Cancer Center^[317] are two additional cases where the Court found that a dental student and a surgical technician (respectively) with HIV were not "otherwise qualified to perform essential job functions". In Local 1812 v United States Dept of State^[318] the Court accepted that members of the foreign service could be required to undergo HIV testing as part of medical fitness requirements to determine whether applicants were otherwise qualified to travel abroad. In Scoles v Mercy Health Corp^[319] the Court accepted that a doctor with HIV would only be "otherwise qualified" to perform his duties if he disclosed his HIV status to patients; this decision was based primarily upon the theory of patient autonomy.

* Canada

5.17 Canadian law generally prevents pre-employment testing and discrimination against people with HIV on the basis that it constitutes unfair discrimination on ground of disability. Fairly comprehensive legal protection exists, for example, for HIV-infected persons in the form of certain remedies available under the Ontario Human Rights Code (which governs private and public actions falling within provincial jurisdiction)^[320] and the Canadian Human Rights Act (which governs private and public actions falling within federal jurisdiction)^[321] to assure that both private and public employers do not adopt policies that irrationally discriminate against HIV-infected workers.^[322] The Ontario Human Rights Code states that the right to equal treatment with respect to employment is infringed where a prospective employer makes any direct or indirect inquiry that "classifies or indicates qualifications by a prohibited ground of discrimination".^[323] The Ontario Human Rights Commission, in a policy document, has regarded this as the basis for a prohibition on pre-employment HIV testing.^[324] Both the Code and the Act provide that the testing or exclusion of an employee with HIV (after being hired), would not constitute discrimination if it is based on a bona fide occupational qualification.^[325] There has been considerable jurisprudence on what may constitute a "bona fide occupational qualification" - usually focusing on the question whether there is legitimate need to prevent exposing others to significant health and safety risks.^[326] The Ontario Human Rights Commission, in a policy statement, has indicated that "in the vast majority of work settings, it is unlikely that testing or other protective measures would be permitted as persons with HIV infection or HIV-related illness pose virtually no risk to those with whom they interact".^[327] This has been confirmed by the Ontario Law Commission in its report on HIV testing.^[328]

5.18 In Re Pacific Western Airlines Ltd and Canadian Air Line Flight Attendants Association, an employer attempted to prevent an employee with HIV from returning to work by placing the employee on permanent sick leave. The Labour Arbitration Court rejected the employer's arguments that dismissal was appropriate in order to prevent discord or work stoppage by co-workers, or to prevent transmission to pilots or customers, or to prevent injury due to neurological impairment. The court stated:

We are unable to find that the employer established that there was any risk that the griever could transmit the disease to fellow employees or passengers. The substance of the expert evidence was that there had never been a reported incident in which the virus had been transmitted in the aviation environment or in any form of what medical experts refer to as casual contact ... There was no evidence adduced of the virus ever having been transmitted by non-sexual contact in any environment or circumstance equivalent or similar to the contact that occurs between employees and employees and passengers in the aviation environment. No evidence was led to the effect that the virus had ever been transmitted in circumstances equivalent or similar to the circumstances before us. The evidence relied on by the employer to support the existence of a risk consisted of opinion evidence that amounted to a theoretical possibility that such a transmission might occur.

The court declined to permit discrimination on the basis that a theoretical risk of HIV transmission could exist. The employer, the court found, sought to eliminate not the risk of HIV transmission, but the elimination of any theoretical possibility of such a risk. The court refused to countenance these kinds of "hysterical obsessions of uninformed persons".^[329]

5.19 In Canada v Thwaites the Federal Court of Canada upheld a finding by the Human Rights Commission that dismissal of a serviceman because of his HIV status was discriminatory, and that no bona fide job qualification would prevent his retaining that position.^[330] It would seem to follow that the seronegative status in a job applicant would not constitute a bona fide job qualification.

5.20 In Ontario Human Rights Commission v North American Life Assurance Co the Ontario Divisional Court accepted without note that HIV was a disability under the Human Rights Code. Discrimination on the basis of HIV status in employment, it held, was unfair. In addition, the Court stated that the Ontario Human Rights Code would not permit an offer of employment to be conditioned upon enrolment in an employee benefit program, life assurance or superannuation plan. However a benefits plan could make distinctions, reasonably based upon actuarial findings, that limited coverage of HIV or AIDS related illnesses.^[331]

* Australia

5.21 The federal Disability Discrimination Act, 1992 makes discrimination on the basis of disability (which is defined so as to include HIV/AIDS) illegal in the area of, inter alia, employment - and specifically with regard to an offer for employment. Reasonable accommodation needs are required to be provided for people with disabilities, but the Act enables respondents to argue that this may involve unjustifiable hardship, and in the area of employment that the person with a disability is unable to carry out the inherent requirements of the particular job. Furthermore, if the disability relied on to support the act of discrimination is an infectious disease, the act of discrimination can be exempted if it is reasonably necessary to protect public health.^[332]

6.22 The Federal Court of Australia (Queensland District Registry General Division) in Commonwealth of Australia v The Human Rights and Equal Opportunity Commission and 'X'^[333] found that the exclusion of a recruit with HIV from military service constituted discrimination on the basis of disability because seronegativity was not a bona fide job qualification. The Court accepted that there might be some instances (as referred to in paragraph 5.22 above) when a person with HIV could be restricted from specific employment positions but found that in the present case the prerequisite was discriminatory. "There is no need or occasion", the Court found, "to allow employers to implement policies of discrimination against persons with disabilities in the name of occupational and workplace safety".^[334] The Court stated:

To sustain the argument that the (serviceman) was unable to carry out the inherent requirements of employment of a soldier, because he was HIV positive, the (Army) needed to obtain from the Commissioner as a finding of fact that it was an inherent requirement of employment as a soldier that he or she "bleed safely", so far as the risk to others including fellow soldiers of infection with HIV is concerned. The applicant did not seek such a finding of fact. Nor sensibly could it have sought such a finding. Risk of injury in the workplace which may give rise to bleeding or loss of bodily fluid, as a matter of theoretical possibility, exists in all employment situations. Someone may trip on a stair, fall and suffer an injury which bleeds and co-workers may run to offer assistance and come into contact with blood or bodily fluid. In this respect a soldier is in no different position to any other person in employment.

If it is lawful to discriminate against a person who wishes to enlist in the Australian Army solely on the basis that the person is HIV-positive because it is an inherent requirement of employment as a soldier that the person "bleed safely", in the sense used above, if injured, then logically such a discriminatory practice against carriers of HIV would be lawful in all employment situations. Such a result would be anathema to the statutory objects of the Act.^[335]

5.23 The Court noted that if a job requirement included the performance of some positive act that could transmit HIV - acting as a human blood bank, for instance - then an employer could condition employment on the applicant demonstrating that he or she did not have HIV.

5.24 The law reform emphasis in Australia has been against unqualified pre-employment testing for HIV.

5.24.1 The committee tasked with proposing law reform on HIV and employment issues referred to the National HIV/AIDS strategy which states that -

(T)here is no necessity to test for HIV infection as a condition for entry into training, employment, or continuation in occupations which do not involve the risk of transmission to other people. HIV infection in itself is not a criterion by which to judge suitability for employment: suitability should be assessed on performance-based criteria (relating to both mental and physical capacity) relevant to the particular occupation.^[336]

5.24.2 In its discussion paper on the matter the committee recommended the adoption of a prohibition on asking for information on which unlawful discrimination may be based, unless reasonably required for a non-discriminatory purpose. This prohibition could cover questioning of a job applicant as to whether they have had an HIV test.^[337] This principle has been embodied in the Commonwealth's Disability Discrimination Act, 1992 which was developed subsequent to publication of the discussion paper.^[338]

* European Union (European Court of Justice)

5.25 In X v Commission of the European Communities the European Court of Justice held that an individual's right to privacy "require[s] that a person's refusal to undergo a test for HIV be respected in its entirety". The Court found that a pre-employment HIV test can violate two aspects of the applicant's right to a "private life": first his physical integrity, and second, "the right to decide for himself to whom he will divulge information with regard to his state of health".^[339] At issue in this case was not directly an HIV test, but instead a blood test to determine T4 and T8 lymphocyte counts (which may be inferred clinically to indicate HIV status). The European Court of Justice found that this requirement violated the right to privacy, regardless of consent. The Court held that while the pre-recruitment medical examination could serve legitimate interests, it must be narrowly tailored to determine the applicant's present ability to perform his or her job.

* United Kingdom

5.26 Under the common law, employers in England were able to distinguish between employees on any ground, and to make medical examinations a pre-requisite for an employment contract. Employers are no longer permitted to discriminate on the basis of race^[340] or sex^[341] when making a job offer. In addition, the 1996 Disability Discrimination Act prohibits discrimination on the basis of disability. However employers are still able to require prospective employees to undergo a medical examination that could include an HIV test. It is as yet unclear whether disability includes people with asymptomatic HIV.^[342]

* India

5.27 In April 1997 Justice Tipnis and Justice Trivedi of the High Court of Judicature of Bombay delivered a judgment rejecting the constitutionality of pre-employment testing by a public corporation. The Court found that it was not constitutionally permissible for the State to condemn a person with HIV to what it termed "certain economic death" before he or she becomes incapacitated due to illness. The Court stated: "If (prohibiting pre-employment testing) means putting certain economic burdens on the State or public corporations such as the Respondent Corporation or society, they must bear the same in the larger public interest". The Court accepted that an employer could test for medical fitness but that medical fitness should be decided on the basis of usual tests that indicate present ability to perform job functions. It is unclear how far reaching the order is, and whether it would also apply to private corporations as well. The Court does recognise however that the costs of HIV/AIDS in societies with high prevalence rates (like India or South Africa) must be allocated with equality and with the larger public interest in mind.^[343]

^[213] Atiyah 355.

^[214] Ibid 356.

^[215] Ibid.

^[216] Ibid 360-361.

^[217] Cameron 1991 ILJ 201-202. See also Albertyn and Rosengarten 1993 SAJHR 85; Van Wyk 1991 Codicillus 7.

^[218] The Citizen 26 March 1997. Cf also the comments of the South African Medical Service (South African National Defence Force) on Discussion Paper 72 confirming that this Service support fully the principles enunciated in the Cabinet memorandum. However, it has approached the Minister of Defence with suggested categories for exemption and are awaiting a final decision in this regard.

^[219] The 1996 Constitution sec 10.

^[220] Ibid sec 14.

^[221] Ibid Sec 9(1).

^[222] Ibid sec 9(2).

^[223] Ibid sec 9(3), (4).

^[224] Ibid sec 12(2).

^[225] Ibid sec 16(1).

^[226] Ibid sec 23(1).

^[227] Ibid sec 22.

^[228] Ibid sec 36.

^[229] Ibid sec 8(1).

^[230] Ibid sec 9(4) and (3).

^[231] Ibid sec 8(2) and (4).

^[232] Ibid sec 8(2).

^[233] Ibid sec 39(1)(c).

^[234] See eg the United States Appellate Court's decision in Glover v Eastern Nebraska Community Office of Retardation 867 F 2d 461 8th, cert denied, 110 S Ct 321 (1989). In Glover the Court held that requiring employees in a mental institution to undergo HIV testing violated their constitutional right to privacy. Doe v City of Chicago 883 F Supp 1126 (1994). See the 1997 judgment of the High Court of Judicature of Bombay referred to in par 5.28 below regarding pre-employment testing of government workers. See also Mello 67-68.

^[235] The Americans with Disabilities Act 42 USC § 12112 (ADA) defines disability, inter alia, as a physical impairment that affects major life activities. The Equal Employment Opportunity Commission (EEOC) Interpretive Guidelines (published in the Code of Federal Regulations (CFR)) includes asymptomatic HIV within the definition of physical impairment (28 CFR § 36.104(1)(iii)). The Guidelines provide examples of major life activity that include sexual reproduction (29 CFR § 1630.2 (I)). Discrimination on the basis of disability (or in this case HIV status) is fair if the applicant for employment is not "otherwise qualified to perform essential job functions". One aspect of the term "otherwise qualified to perform essential job functions" is the requirement that the applicant not - in the course of ordinary work activities - pose a "significant risk" to others. For an explanation of the terms "significant risk" and "otherwise qualified" see the Supreme Court decision of School Board of Nassau County, Florida v Arline 480 US 273 94 L Ed 307 (1987). (Cf also par 5.17 below.)

See Canada v Thwaites 49 ACWS 3d 1102 (1994) and Ontario Human Rights Commission v North American Life Assurance Co 123 DLR 4th 709 (1995) for an interpretation of Section 15(1) of the Charter of Rights and Freedoms which accepts that HIV can be a disability, and that some instances of discrimination against people with HIV are unfair. (See also par 5.18-5.21 below.)

Australia's Disability Discrimination Act 1992, includes within the definition of disability: "... (d) the presence in the body of organisms capable of causing disease or illness" (Commonwealth of Australia v the Human Rights and Equal Opportunity Commission and 'X' No Qg 115 of 1995, 1996 Aust Fed Ct (Lexis 859). (See also par 5.22-5.25 below.)

Mai 1996 HIV/AIDS Legal Link 23.

^[236] Cf Silver (Unpublished) 3-4.

^[237] Cf BSA Draft National HIV/AIDS Employment Code of Conduct; London and Myers 1996 SAMJ 329-330; Mello 39-40.

^[238] The 1996 Constitution sec 22.

^[239] Cf the recent unreported decision of the Constitutional Court on 6 October 1997 in S v Lawrence; S v Negal; S v Solberg (Cases CCT 38/96, 39/96 and 40/96) 26-33. In interpreting sec 26 of the interim Constitution (providing that "every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory") Chaskalson P observed that "(I)n a modern democratic society a right 'freely' to engage in economic activity and to earn a livelihood does not imply a right to do so without any constraints whatsoever".

^[240] The Constitution of the Republic of South Africa (Act 200 of 1993).

^[241] LRA sec 2(1)(a) subject to sec 2(2) of Part B of Schedule 7.

^[242] Ibid sec 185 and 187, in conjunction with Schedule 7.

^[243] Ibid sec 2(1)(a) read with sec 2(2)(c) of Part B of Schedule 7.

^[244] Ibid sec 188(1)(a).

^[245] See par 5.5 and fn 229 above.

^[246] LRA sec 2.

^[247] 1993 4 SA 842 (A).

^[248] 1996 4 SA 292 (T).

^[249] Ibid at 301.

^[250] Jansen van Vuuren v Kruger 1993 4 SA 842 (A) at 849E-F.

^[251] S v A 1971 2 SA 294 (T).

^[252] Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 462E-F; Jansen van Vuuren v Kruger 1993 4 SA 842 (A) at 849. See, in general, Joubert 130-136.

^[253] Curran 1980 Columbia Law Review 732 fn 69. See also Edgar and Standomire 1990 American Journal of Law and Medicine 160; and Whalen v Roe 429 US 589 (1977).

^[254] 1996 4 BCLR 449 (CC) per Justice Ackermann. Justices Chaskalson P, Mahomed DP, Madala, Langa, Mokgoro, Sachs, and Ngoepe AJ concurred.

^[255] 1996 4 BCLR 449 (CC) 65F, 68E, 68F, citing Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) at 462F.

^[256] See Doe v The City of New York Commission on Human Rights 15 F 3d 264 (1994); Woods v White 689 F Supp 874 (1988); X v Commission of the European Communities European Court of Justice 1995 IRLR 320.

^[257] 1996 Draft UNAIDS Policy Statement on Counselling and Testing 1996 3.

^[258] It can, for instance, affect insurability, cause job loss, disrupt families and lead to stress and depression (see, for instance, Leigh et al 1995 AIDS 81-88).

^[259] The 1996 Constitution, sec 12(2) guarantees the right to bodily and psychological integrity. This certainly includes protection of an individual's mind and body from unwarranted intrusion. It is unclear whether this right will also be interpreted to protect the full autonomous interests that Ackermann J refers to at 65-79 in Bernstein v Bester 1996 4 SA BCLR 449 (CC).

^[260] 1996 5 BCLR 609 (CC).

^[261] Ibid 647, 649.

^[262] Ibid 649 (Justice Langa).

^[263] 1996 5 BCLR 609 (CC) at 650. See in particular fn 255, which points to South Africa's anti-miscegenation statute as an example of a violation of the right to privacy and the right to equality.

^[264] 1996 1 BCLR 1 (CC) at 28.

^[265] The 1996 Constitution sec (8)(3)(a).

^[266] Ibid sec 9(4). (This provision was formerly contained in sec 8 of the 1993 interim Constitution.)

^[267] Brink v Kitshoff 1996 4 SA 197 (CC) at 217D-F.

^[268]

20 October 1994 Hansard 3451. The NACOSA National AIDS Plan 1994-1995 was adopted by the Department of Health in 1994 on behalf of the Government in a speech by Minister Zuma before parliament. See also fn 111 above.

^[269] Other organisations and institutions have issued non-binding resolutions, such as the United Kingdom Declaration of the Rights of People with HIV and AIDS of 1991 which states: "No person should be barred from employment or dismissed from employment purely on the grounds of their having HIV, or having AIDS or an AIDS related condition. Employers should ensure that their terms and conditions of employment are such as to enable people with HIV, AIDS, or and AIDS related condition to continue in their employment, and to do so in a healthy and safe working environment. Employers or their agents should not perform tests to detect the HIV status of current or prospective employees; in respect of the right to work, the right to privacy, and the right to protection from discrimination, there should be no obligation or requirement upon an individual to disclose to an employer their own HIV status or the HIV status of another person".

^[270] Social Europe 1, 1990, p 156 as cited in Goss and Adam-Smith 9.

^[271] As cited in WHO Report of an International Consultation on AIDS and Human Rights 1989 50.

^[272] Code on HIV/AIDS and Employment in Southern African Development Community (SADC) 1997 par 2. (See also SADC Draft Code on HIV/AIDS and Employment 1996).

^[273]

Cf ALP/AIDS Consortium HIV/AIDS Employment Code of Conduct 1994 1, 2, 6.

^[274] BSA Draft National HIV/AIDS Employment Code of Conduct 1994 1.

^[275] SACOB HIV/AIDS and Employment Code of Conduct for Employers 1996 3-4.

^[276] The South African Society of Occupational Medicine Guideline on AIDS at the Workplace issued by the South African Society of Occupational Medicine as SASOM GUIDELINE NO 5 at 3.

^[277] The Council is established in terms of sec 2(1) of the National Economic, Development and Labour Council Act, 1994 (Act 35 of 1994).

^[278] LRA sec 203(1).

^[279] Ibid sec 203(3).

^[280]

Cf Albertyn and Rosengarten 1993 SAJHR 77-88; Cameron and Adair (Unpublished) 2-3; Greenlaw 1992 Journal of Health and Hospital Law 80. The Centers for Disease Control (United States) has stated that general employment testing is unwarranted because HIV is not transmissible in the workplace (CDC Morbidity and Mortality Weekly Report 12 July 1991 5, 7).

^[281] Albertyn and Rosengarten 1993 SAJHR 85; note that countries such as Malawi and Zambia have legislated against pre-employment testing. Namibia's National AIDS Plan adopted by the Ministry of Health and Social Services propose legislation and policy guidelines that prohibit using an individual's HIV-status as a prerequisite "of entry into work, continuation of work, promotion ... or training opportunities" (Namibia National AIDS Control Programme 1992-1997 17, and 9 of Appendix 2).

^[282] California prohibits an employer from requiring an HIV test as a condition of employment (Cal Health and Safety Code § 199.21 (f)). Hawaii prohibits conditioning provision of employment on consent to disclose HIV-related information (Haw Rev Stat § 325-101(c)). Iowa classifies HIV as a disability, and finds requiring an HIV test as a condition of employment an unfair employment practice (Iowa Code § 216.6). Florida, Kentucky and New Mexico prohibit requiring an HIV antibody test as a condition of employment unless the employer can show a valid, bona fide occupational qualification (Fla Stat § 760.50; Ky Rev Stat Ann § 207.135; NM Stat Ann § 28-10A-1 ). Massachusetts prohibits an employer from requiring an HTLV-III antibody or antigen test as a condition of employment (Mass Gen L ch 111, § 70 F). New Hampshire law prohibits an employer from requiring HCWs to consent to an HIV test as a condition of employment (NH Rev Stat Ann § 141-F:9-a). Rhode Island prohibits conditioning employment on an HIV test unless there is a clear and present danger of transmission of the virus to others (RI Gen Laws § 23-6-22). Texas prohibits any person from requiring another person to undergo a test for HIV, except in limited circumstances; an employer who alleges that the test is necessary as a bona fide occupational qualification has the burden of proving that allegation (Texas Health and Safety § 81.102). (See also Winters v Houston Chronicle Pub Co 795 SW 2d 723, 724 n 1 (1990) which states that legislative exceptions to the employment at will doctrine include restrictions against employers from requiring HIV testing of employees.) Vermont law states that it is an unfair labour practice to request or require an applicant, prospective employee, or an employee to have an HIV-related blood test, or to discriminate against an applicant, prospective employee or employee because that person is HIV-positive (VT St Ann tit 21, § 495). Washington law states that no person shall be required to take an HIV test as a condition of hiring, promotion, or continued employment. It goes on to prevent an employer from terminating or refusing employment based on the basis of an HIV test unless that job position presents a significant risk of transmitting HIV and there exists no means of eliminating that risk by restricting the job (Wash Rev Code Ann § 49.60.172). Wisconsin prevents public employers from soliciting or requiring an HIV test as a condition of employment, unless that individual, through employment, poses a significant risk of transmitting HIV (Wis Stat § 103.15). See, for more information, Barron et al 1995 Law and Sexuality 1 et seq; and Edgar and Standomire 1990 American Journal of Law and Medicine 155 et seq (Lexis Nexis).

^[283] Doe v The City of New York Commission on Human Rights 15 F 3d 264 (1994) at 267.

^[284] Banta 120.

^[285] See Whalen v Roe 429 US 589 (1977). See also Anderson 1995 Maryland Bar Journal 11.

^[286] Whalen v Roe 429 US 589 (1977), 599-600.

^[287] Anonymous Firemen v City of Willoughby 779 F Supp 402 (1991). (The Court recognised that the testing entailed an infringement upon the privacy rights of firemen, and specifically limited its provision to testing to emergency personnel.) Local 1812 v United States Dept of State 662 F Supp 50 (1987).

^[288] Glover v Eastern Nebraska Community Office of Retardation 867 F 2d 461 8th, cert denied, 110 S Ct 321 (1989) (the Court found that the privacy interests of employees prevented an employer from requiring all employees to submit to HIV testing). Woods v White 689 F Supp 874 (1988) (the Court found that subjecting inmates to an HIV test violated their right to privacy). Nolley v County of Erie 776 F Supp 715 (WD NY 1991) (the Court found that the disclosure of an inmate's HIV status violated her right to privacy). Doe v City of Chicago 883 F Supp 1126 (1994) (a policy of forcing all applicants for employment to submit to HIV testing would violate their right to privacy). Also see Deloach 1990 Creighton Law Review 693-716.

^[289] The Vocational Rehabilitation Act, 29 USC § 794-7976 (1988).

^[290] 480 US 273 94 L Ed 307 (1987).

^[291] The Americans with Disabilities Act, 42 USC §§ 12101-12117 (Supp V 1993) 42 USC § 12112.

^[292] Ontario Report 36; Parmet AIDS and the Health Care System 96; McCormack 1995/1996 The Journal of Air Law and Commerce 279-302.

^[293] 29 USC §794(a). Sec 504 provides that "(N)o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by and Executive agency...". See also Jarvis et al 48-50; AIDS The Legal Issues 200; McCormack 1995/1996 The Journal of Air Law and Commerce 297-298.

^[294] Banta 47.

^[295] Leonard AIDS and the Law 109,113, 115; Banta 47-49.

^[296] Jarvis et al 47, 90-91; Leonard AIDS and the Law 113; Banta 45-53. The answer to the question whether a person with HIV presents such a risk, is almost always that HIV infection does not present significant risk to the health and safety of others working in proximity to the infected person, even when that person has visible symptoms. The question becomes more troublesome if the employee or customer may come into close physical contact with others, but can usually be resolved on the basis of current evidence regarding the difficulty of HIV transmission in the absence of direct exposure to infected blood (Jarvis et al 49-50).

^[297] Leonard AIDS and the Law 114.

^[298] See eg Chalk v United States Court, Central District of California 840 F 2d 701 9th Cir (1988); Doe v Centinella Hospital 57 USLW 2034 (DC Call 1988).

^[299] See eg Martinez v School Board of Hillsborough County, Florida 861 F 2d 1502 11 Cir (1988); Doe v Dolton Elementary School District No 148 694 F Supp 440 (ND ILL 1988); Robertson v Granite City Community Unit School District No 9 684 F Supp 1002 (SD ILL 1988).

^[300] Ontario Report 36; McCormack 1995/1996 The Journal of Air Law and Commerce 297-300; Banta 31-45.

^[301] 42 USC 12102 sec 3(2). See also McCormack 1995/1996 The Journal of Air Law and Commerce 301.

^[302] 42 USC §§ 12113(a)-(b) (Supp V 1993). See also McCormak 1995/1996 The Journal of Air Law and Commerce 300.

^[303] 29 CFR § 1630.2(r)(1994). See also McCormack 1995/1996 The Journal of Air Law and Commerce 300; and fn 296 above for an indication of what could constitute a significant risk.

^[304] Sec 102(b)(5) (for the text see Banta 282-283). Hence smaller companies may have an advantage in their attempts to convince the investigator or the Court that a particular accommodation would unduly strain the employer's resources; conversely, large corporations may experience difficulty in gaining judicial acceptance of this doctrine and defence (Banta 35). See also Van Wyk 297.

^[305] Cf Van Wyk 298.

^[306] Sec 102(c) of the Act states:

"(1) ... The prohibition against discrimination ... shall include medical examinations and inquiries.

(2)(A) ... Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such a disability.

(B) ... A covered entity may make pre-employment inquiries into the ability of an applicant to perform job-related functions.

(3) ... A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if -

(A) all entering employees are subjected to such an examination regardless of disability;

(B) information obtained regarding the medical condition or history of the applicant is ... treated as a confidential medical record, except that -

(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment'; ... and

(C) the results of such examination are used only in accordance with this subchapter".

See also, the Equal Employment Opportunity Commission's regulations on pre-employment medical exams (29 CFR § 1630 (1994)).

^[307] Feldman AIDS Agenda 285.

^[308] 42 USC 12111, sec 10(5).

^[309] Ibid sec 102(a). See also Banta 36-37. Section 504 of the Rehabilitation Act, 29 USCA 794 provides a similar prohibition on discrimination on the basis of disability; it applies to all employers who take federal funds. Insofar as interpretation, a court will interpret the meaning, precedent, and purposes of the two acts in accordance with one another.

^[310] 29 CFR § 1630 (1994). See also Feldman AIDS Agenda 286; Banta 36-37.

^[311] 29 CFR sec 1630.2(j) (Guidance)at 35741.

^[312] 28 CFR sec 36.104 (Guidance) at 35548.

^[313] See, for various interpretations of the term "disability" in the context of HIV, Ennis v The National Association of Business and Educational Radio Inc 53 F 3d 55 (1995) (here the Court expected a showing that a major life activity was affected by HIV); and Abbot v Bragdon 912 F Supp 580 (1995) (here the Court accepted, without requiring further proof, that asymptomatic HIV was a disability).

^[314] 796 F Supp 559 (1992). Cf, however, the decision in Anonymous Firemen v City of Willoughby referred to in fn 287 above.

^[315] 50 F 3d 1261 (1995).

^[316] 780 F Supp 628 (1991).

^[317] 3 F 3d 922 (1993), cert denied, 114 S Ct 1071 (1994).

^[318] 662 F Supp 50 (1987).

^[319] 887 F Supp 765 (1994).

^[320] R50 1990, c H 19.

^[321] R S C 1985 c H 6.

^[322] Ontario Report 62-63.

^[323] Ibid 39.

^[324] Ibid.

^[325] Ibid 64 fn 206.

^[326] Ibid 39 fn 95.

^[327] Ibid 39.

^[328] The rationale for preventing employers from requiring applicants for employment to undergo HIV-testing has been explained thus in the report: "Because HIV transmission is sexual or blood-borne and not casual, there is no effective risk of transmission in the majority of workplaces. ... Since the mandatory HIV-related testing of employees is not rationally related to the protection of public safety, an employee's HIV-status cannot reasonably be considered a bona fide occupational qualification ...". In addition, the report found no evidence supporting the allegation that asymptomatic individuals with HIV could suffer from cognitive deficiencies (Ontario Report 62, 63 fn 204 and 205).

^[329] Re Pacific Western Airlines Ltd and Canadian Air Line Flight Attendants Association 28 LAC 3d 291 (1987).

^[330] Canada v Thwaites 49 ACWS 3d 1102 (1994).

^[331] Ontario Human Rights Commission v North American Life Assurance Co 123 DLR 4th 709 (1995). The Court found that the right to equal treatment in employment without discrimination on the basis of handicap was not infringed "where reasonable and bona fide distinctions" were made in an employee benefit program. The decision turned upon the plaintiff's claim for benefits. His exclusion based upon a pre-existing condition was held to be actuarially justifiable.

^[332] Sec 15(3), 15(4) and 48 of the Disability Discrimination Act, 1992 as referred to in Commonwealth of Australia v The Human Rights and Equal Opportunity Commission and 'X' No Qg 115 of 1995, 1996 Aust Fed Ct (Lexis 859); see also Australia Final Report on AIDS 32-33.

^[333] Commonwealth of Australia v The Human Rights and Equal Opportunity Commission and 'X' No Qg 115 of 1995, 1996 Aust Fed Ct (Lexis 859).

^[334] Ibid 40.

^[335] Ibid 38, 39.

^[336] Australia Discussion Paper Employment Law 25.

^[337] Ibid 28.

^[338] Australia Final Report on AIDS 32, 55.

^[339]

X v Commission of the European Communities European Court of Justice 1995 IRLR 320.

^[340] Race Relations Act 1976.

^[341] Sex Discrimination Act 1975.

^[342] Schizas The Economic and Social Impact of AIDS in Europe 312. Schizas, at 304, notes that Belgium, France, Germany and Spain have general prohibitions on unfair discrimination which can prevent pre-employment testing, but do not have specific legislation on the matter. Italy has adopted specific legislation prohibiting employers from taking measures aimed at identifying HIV in candidates for employment.

^[343] The Court's judgment was delivered four years after the initial infringement on the petitioner's rights (court record of Writ Petition 213 of 1995 of the High Court of Judicature of Bombay 100 et seq, but specifically 109, 116-117 and 122 - made available to the researcher in May 1997; see also Internet<lawyers@bom2.vsln.net.in accessed on 8 April 1997.