SHERRY-ANN MCGREGOR
WHENEVER THE subject of HIV/AIDS discrimination arises, I usually recall the 1993 movie "Philadelphia" in which Tom Hanks' character was the object of this type of workplace discrimination. It was a poignant portrayal of the courtroom drama which followed a homosexual lawyer's dismissal from a prestigious law firm after news broke that he was infected with AIDS. The movie drew international attention to the existence of AIDS discrimination at a time when the gravity of the HIV/AIDS pandemic was hardly as inescapable as it is today. Though based on fiction, the issues raised were as real then as they are now, as the adverse social and economic realities faced by persons who live with HIV/AIDS are no less troubling today than they were back then.
WOMAN AT RISK
Women are especially prone to the disease and the rate of HIV infection increases proportionately to the probability that a colleague or a co-worker will be tested positive for HIV/AIDS. As a consequence, this is likely to unearth many underlying prejudices towards people living with the disease. While our health system has been forced to react to this trend, we have not aggressively addressed the legal ramifications in an effort to guard against discrimination and harassment of people who are infected with HIV/AIDS.
Many other jurisdictions have taken steps in this regard. In particular, The Bahamas adapted its labour legislation and the United Kingdom widened the scope of its discrimination legislation in an attempt to tackle the issue. In the U.K. for example, the Disability Discrimination Act, 1995 seeks to protect persons living with disabilities from discrimination.
An amendment has already been proposed to that Act to ensure that persons infected with HIV are protected from the time of diagnosis and not just at the time of physical impairment. It imposes an obligation on employers to make adjustments in terms of workplace arrangements that may prevent a person living with a disability from carrying out her work. Such adjustments may include adopting a more flexible approach to work (e.g. altered duties) and work hours.
DOCUMENTS
Back in March 2005, the Ministry of Health unveiled policy documents to combat HIV/AIDS discrimination in the workplace. However, appropriate legislation has not yet emerged. We require a proactive approach to ensure that persons who are diagnosed with HIV/AIDS are able to manage their careers in order to continue to live productive lives.
A legislative framework should be formulated, after consultation with all the relevant stockholders, to counter HIV/AIDS discrimination. In determining the appropriate type of legislation we should consider whether we should adopt specific non-discrimination legislation, amend existing labour laws or enact wider disability legislation.
In terms of the workplace, the important matters include:
The protection of HIV-positive employees from discrimination, victimisation or harassment.
Preventing employers from requiring employees to undergo HIV testing as a prerequisite for recruitment.
Preventing employers from dismissing employees or denying them promotions on the basis of real or perceived HIV status.
Ensuring that employees are guaranteed that the revelation of HIV status to management will be kept confidential.
Making employers responsible for the manner in which employees treat their HIV-positive colleagues.
As Nelson Mandela said, "AIDS is no longer just a disease it is a human rights issue", and our legislators therefore need to place it in its proper context.
Sherry-Ann McGregor is an Attorney-at-Law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
