AIDS Law Project & AIDS Consortium
SUBMISSION TO THE LABOUR PORTFOLIO COMMITTEE ON THE EMPLOYMENT EQUITY BILL [B60-98]:

The AIDS Law Project (ALP) is a non governmental organisation that specialises in promoting the legal and human rights of people with the Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS). We are extensively involved in policy formulation for the public and private sector on matters such as employment policy, health care and access to services.

The AIDS Consortium is an affiliation of over 100 organisations working in the field of HIV and AIDS. The AC specialises in advocacy, lobbying and the provision of up to date information on issues related to HIV and AIDS.

The ALP and AC are members of the Employment Equity Alliance (EEA) . We fully endorse its submission. We particularly draw your attention to the paragraphs which address the issue of employment equity for people infected with the Human Immuno-deficiency Virus (HIV). Our arguments, below ,provide additional motivation to the submission of the EEA.

July 21, 1998

This submission is divided into two parts. Part I comments on how successfully the Employment Equity Bill protects people with HIV or AIDS from unfair discrimination. The second part makes recommendations for amendments to the draft.

PART I: COMMENT

RE : DEFINITION OF 'PEOPLE WITH DISABILITIES': (Chapter 1,1)
The EEB defines 'people with disabilities' as:

"people who have a long term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment."

First of all, it is important for the Bill to recognise that HIV is a physical impairment. It is a virus that is continually replicating in the body of the infected person and continually impacts on the psychological and physical well-being of the person with HIV. It also impacts on major life activities, such as reproduction and sexual relations. However, illnesses directly associated with HIV often take many years to develop. A person with HIV is fit and productive and poses no risk to her/his colleagues at work.

Nonetheless, the Bill’s definition of 'people with disabilities' is too narrow because it does not take into account the effect that 'perceptions' can have on people who are 'perceived' to be suffering from an illness (such as HIV) or perceived to be 'disabled' because they suffer from a particular illness . Job applicants and employees living with HIV or AIDS are often perceived to be 'disabled' or potentially 'unproductive'.

These perceptions limit entry into or advancement in employment.

Denial of gainful employment to people living with HIV, on the basis of a perceived disability, is made possible by pre and post employment HIV testing.

The following evidence exists of widespread and unfair HIV testing:

The ALP, AC and other AIDS Service Organisations have documented evidence of testing particularly of domestic workers and mineworkers.

In March 1995 a survey of employers attending seminars of Andrew Levy and Associates found 18,1% of employers admit to testing job applicants. 70% said knowledge of HIV would influence decisions to hire. 28% said knowledge would influence decisions concerning promotion.

Research has been completed in July 1998, under supervision from the University of the Witwatersrand Faculty of Management, into Attitudes to HIV Testing and Legal Reform. It found that when asked directly whether prospective employees are tested for HIV 10,65% of employers admit to testing prospective employees for HIV. 59.4% of private sector employers believe HIV testing is appropriate in the employment context, and 77.6% believe it is appropriate for fringe benefit considerations.

It is also important to note that foreign jurisdictions, like the United States, broaden definitions of 'people with disabilities' to include the essential component of 'perception'.

The Southern African development Community Code on AIDS and Employment, which was endorsed by the SADC Council in September 1997, states:

"There should be no direct or indirect pre-employment test for HIV. Employees should be given the normal medical test 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 relating to the assessment of risk behaviour should not be permitted."

The Code recommends that its provisions should "be incorporated in regional and national Codes on SAIDS and Employment that shall be reflected in law" such as the Employment Equity Act.

2. RE. : DEFINITION OF 'MEDICAL TESTING': (Chapter 1)
The EEB defines 'medical testing' as:

"any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling an employer to ascertain, whether an employee has any medical condition."

This definition must be read together with Section 6, which prohibits medical testing - and therefore also prohibits 'any test, question.....', to ascertain an employee’s medical condition \ s.

However, the provisos to the general prohibition on medical testing state that medical testing will be allowed where legislation permits it or where it is justifiable on a number of grounds. The provisos mean that, in circumstances where they do apply, 'any test, question ....' can be utilized to ascertain an employees medical condition \ s. This will have the effect of continuing to allow employers to test for "medical" conditions using arbitrary criteria that are irrelevant to the inherent requirements of a job.

PART II: RECOMMENDATIONS

3. RE : PROHIBITION OF UNFAIR DISCRIMINATION (Section 6)
We submit that solely for the purposes of this section (and not the entire Bill) that "HIV\ AIDS" should be specified as a ground on which unfair discrimination will not be permitted - as with sexual orientation, religion, etc.

Alternatively, we support the recommendation of the Employment Equity Alliance that Section 6(1) be amended to introduce a new sub-clause which reads:

"The Human Immuno-deficiency Virus (HIV) will be regarded as a disability for the purposes of this Chapter only."

This will not impose any numerical or quota burdens on employers in terms of the number of people living with HIV that they employ. Instead it will ensure that HIV \AIDS is equally recognised, along with the other 17 grounds as listed in 6 (1), as a condition which at present attracts widespread unfair discrimination.

This should effectively ensure that employees (including job applicants) living with HIV \AIDS will have fair and equal access to gainful employment.

This would be in keeping with current recommendations made by the International Labour Organisation, the United Nations Programme on AIDS, the World Health Organisations and the Southern African Development Community (SADC) Code on AIDS and Employment.

4. MEDICAL TESTING: (SECTION 7)
Section 7 presently reads:

'medical testing of an employee is prohibited, unless-
(a) legislation permits or requires the testing, OR
(b) it is justifiable to do so in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job'.

Regarding 7 (a) and (b):

Re. (a) at present there are no statutes in South Africa that require or permit medical testing of employees for non-contagious conditions such as HIV. Until then, this proviso is meaningless.

Re. (b), it is unclear from the wording of section 7 (b) 'who' will decide whether a medical test is 'justifiable' [which decision must be based on the grounds listed in 7 (b)]. It is also unclear as to 'when' this decision should be made -- before or after the test?

Further, no specific mention is made of prohibiting HIV testing, which is a major source of unfair discrimination. This is worrying, as many cases of unauthorised medical testing occur in relation to HIV. Authorised medical testing, that is fair discrimination, should only be permitted where it can clearly be established to be linked to the "inherent requirement of the job" . It should NOT be permitted on other grounds stipulated in Section 7(b) . This is in keeping with:

THE LABOUR RELATIONS ACT: allows for 'fair discrimination' where the discrimination is based on the 'inherent requirement of the job'. 'Fair discrimination' according to the LRA is thus not influenced by 'medical facts, social policy, employment conditions, or the fair distribution of employee benefits'. The EEB however includes the latter factors.

ILO CONVENTION 111: provides that discrimination based on the 'inherent requirement of the job' is 'fair'. 'Fair discrimination' according to Convention 111 is also not influenced by any of the grounds listed in Section 7 (b) of the EEB.

Therefore, if the wording of 7(b) remains unchanged it will be in contradiction to the LRA and ILO 111.

We therefore propose that if Section 7 is not redrafted, then at the very least the following words in 7(b) should be deleted:

"it is justifiable to do so in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job'.

However, even this amendment leaves the decision about whether HIV testing is "an inherent requirement of the job", it seems, with the employer. In this regard it should be noted that THE SOUTH AFRICAN LAW COMMISSION (SALC) COMMITTEE ON HIV \ AIDS recommended in it's report to Parliament that pre-employment HIV testing should be prohibited save in cases of alleged exception where appropriate permission is sought from the Labour Court.

We recommend that this approach be incorporated into the Employment Equity Act, so that permission is sought BEFORE any medical test is conducted. The decision about whether a MEDICAL test is 'justifiable' should not be left to the sole discretion of an employer, as this will be both unfair and dangerous and can lead to the abuse of employees who are economically vulnerable.

Mark Heywood - Head: AIDS Law Project
Fatima Hassan - Attorney: AIDS Law Project
Morna Cornell - Director AIDS Consortium