Example 6: Using constitutional rights to equal protection to fight against employment discrimination of those living with HIV
Project Type: Litigation
South Africa: Hoffman v. South African Airways, Constitutional Court of South Africa, Case CCT 17/00 (2000); 2001 (1) SA 1 (CC); 2000 (11) BCLR 1235 (CC).
These two separate cases are both examples of individuals bringing successful human rights actions against their respective governments.
With the largest and second largest population of HIV-positive individuals in the world, South Africa and India experience high rates of employment discrimination on the basis of HIV status. However, both the South African and Indian constitutions provide for equal protection under the law. The two litigation case studies here show how equal protection—a constitutional guarantee in many countries—can protect individuals living with HIV from discrimination in the workplace.
In both cases, a public company terminated its relationship with an employee because of that employee’s HIV-positive status. In MX v. ZY (India), the employer terminated its relationship with plaintiff-employee once it learned of that employee’s HIV-positive status. In Hoffman (South Africa), the employer withdrew its offer of employment once it learned of the employee candidate’s HIV-positive status.
Arguments and Holdings
Both employees sued their public-corporation employer for violations of their respective country’s constitutional equal protection provisions. In both cases, the public-corporation employer argued that it had “legitimate” reasons for terminating their relationship with their HIV-positive employee. In MX v. ZY, the employer argued that medical requirements were legitimate because of the added financial and administrative burdens associated with hiring an HIV-positive individual. In Hoffman, the public-employer also made business strategy arguments, including the undue cost of training an individual with a shorter lifespan and the unfair advantage that its private competitors—who may discriminate against individuals, unlike their government counterparts—would gain if they were forced to treat HIV-positive individuals equally. In both cases, the court rejected business strategy arguments, finding that the equal protection guarantees of the constitution trumped profit interests of the business.
In addition to business strategy arguments, the defendant in Hoffman argued that the ability of HIV-positive individuals may not be capable of performing essential job responsibilities. First, the defendant airline argued that the court should allow it to reject an applicant based on its HIV-positive status because the National Department of Health required international air cabin attendants to receive yellow fever vaccinations, which may be dangerous for HIV-positive individuals to receive. Second, the airline defendant argued that HIV-positive individuals may not be able to perform the responsibilities of an air cabin attendant during an emergency. The court rejected both these arguments, finding that equal protection demands that the employer perform individual assessments of each candidate’s ability to perform essential job functions.
Analysis and Commentary
Many of the world’s constitutions provide for equal protection under the law. The two cases profiled here show how domestic equal protection guarantees can protect those living with HIV. In both cases, the courts found that a public corporation, bound by constitutional equal protection provisions, must assess individual candidates; a blanket rejection of HIV-positive individuals is in violation of an HIV-positive candidate’s constitutional right to equal protection under the law.
People living with HIV are among the world’s most vulnerable populations, facing widespread stigma and discrimination. Equal treatment requires government and state actor employers to individually assess each candidate. Policies discriminating on the basis of HIV status are not allowed.
Indian Constitution. Article 14:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
South African Constitution. Section 9:
- Everyone is equal before the law and has the right to equal protection and benefit of the law.
- Equality includes the full and equal enjoyment of all rights and freedoms . . . .
- The state may not unfairly discriminate directly or indirectly against any on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
- No person may unfairly discriminate directly or indirectly against anyone on one or more ground in terms of subsections (3) . . . .
- Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.