Employees’ dismissal because of AIDS — an act of injustice by the employer

The Labour Code of St. Lucia deals mainly with termination of employment with provisions for unfair dismissal; rights of the employee and termination benefits. Section 4(3) states “….It is unlawful for an employer to discriminate against an employee on the prohibited ground [of disability]- by retrenching or dismissing the employee”. Section 3 (1) states that “ a person discriminates against another if [he] makes on the grounds of any characteristics which appears generally or is generally imputed to persons of a particular…. Disability, any distinction, exclusion or reference, the intent of which is to nullify or impair equality of opportunity or treatment in occupation or employment”.

In the American case Equal Employment  Commission v. Prevo’s  Family Market [9], Sharp who worked as a produce clerk informed his Employers (Prevo), when he found out that he had HIV and also informed he would participate in an AIDS awareness and educational programme, which would make public aware of  his  condition. The manager suggested moving him to work in the cash room and requested a medical report. He later objected to the change and commented on the questions being asked about his relocation and requested to be transferred to the produce area.

Every person has the right to work and to just and favourable conditions of employment. The right to work entails the right to access employment without discrimination except the necessary occupational qualifications and abilities. This right accrues to people with AIDS, like every citizen.

Constitutional Rights of HIV/AIDS victims

One cannot have a just society unless all individuals who make up that society have equal protection of the law and are privy to the same rights. If individuals are deprived of equal rights, it may be said that you are depriving them of due process of law. Individuals within society struggled over generations to obtain these rights and in the Caribbean, through adoption of common law and parliamentary democracy, the enjoyment of these rights by all should be a reality. Many of these rights however are not protected by laws or are not explicitly stated in our laws, specifically the Constitution. One could therefore argue that the declaration in the Caribbean Constitutions (which are all quite similar in respect to human rights) that every person is entitled to fundamental rights and freedoms is not strictly true. The Constitutions of the Caribbean, using Jamaica as the example, state that each person has the right to each and all of the following rights and freedoms:

(a)    Life, Liberty, security of the person and protection of the law
(b)   Freedom of conscience, of expression and of peaceful assembly
(c)    Respect for his private and family life[10]

Other Caribbean countries have other provisions which protect more rights such as ss. 15 and 16 of the Belizean constitution which are entrenched rights to work and the right not to be arbitrarily deprived of work or subject to any other form of discrimination. In practical way and indeed in reality certain groups of individuals within society such as those living with HIV do not effectively enjoy these rights. This can possibly be explained partially by the lack of adequate laws in most countries to protect their rights and also to the hesitation and resistance of judges in the Caribbean to interpreting laws currently existing to include more groups or individuals who are prejudiced against by not having their rights protected.

At the root of this discrimination often lies public access to the HIV status of individuals that is a major cause of concern and grave infringement of the rights of individuals to their privacy and dignity and the beginning of the end of the social and economic wellbeing for most HIV infected persons. Many individual employees within an organization along with management would want to have a mandatory HIV testing of all employees so that “They may know what is going on”, and consequently The question which one can ask is whether it would not be infringing on the rights of the other employees and the degeneration of the economic well being of the organization to allow HIV infected persons to remain within the regular work environment.

In the Caribbean all constitutions have fundamental rights provisions that speak to protection of basic human rights. Section 3 of the Belizean constitution states:

“A person shall not be subjected to … unlawful attacks on his honour or his reputation.”

Section 15 states that:

“No person shall be denied the opportunity to gain his living by work which he freely choose or accepts whether by pursuing a profession or occupation or by engaging in a trade or business or otherwise.”

Section 16 provides that:

“ No law shall make any provision that is discriminatory either in itself or in its effect section 16(2), no person shall be treated in a discriminatory manner by person or authority.”

Several issues arise here in analyzing the termination of the employment contracts of employees who are found to be infected with HIV by the workplace.

  1. Is there a moral justification for depriving these individuals of their fundamental rights; to privacy, to work and most importantly their right to protection of these by the law?
  2. In answering this – one has to answer

a.       What rights would be infringed upon or denied to the general public (others) if HIV infected persons were accorded these rights or

b.      What public harm can the state prevent by depriving these individuals of their fundamental rights.

Prior to answering these questions the duty of the state has to be established. The aim of any constitution is to protect the rights that are deemed to be basic human rights of all individuals in the society. Theories of Rights and Justice such as those postulated by Rawles and Finnis make the assumption that the basic structure of society is regulated by such a just constitution that secures liberties of equal citizenship. Not all fundamental rights are stated explicitly in the constitution, however it is implied that the Constitution was designed to ensure that all had equal opportunities to rights – the idea of procedural justice being the means of handling contingencies. As stated in the constitution the tree arms of government along with their various agencies are all linked to ensuring protection of these rights. The legislature makes laws to protect individual rights, the judiciary interprets these laws or push for the creation of such laws to protect rights and the executive arm sees to the effective application of existing laws.

The state has a moral justification to protect all individuals in society and also a moral justification to limit the rights of individuals. This limit however extends only in circumstances where there is a threat to the rights and liberties of others in society such as the outbreak of an epidemic wherein the state could balance the proportionality of the right of liberty against the potential damage and restrict those infected of that right as a means of ensuring the good of the entire society.

States Duty to Protect the Vulnerable

If a person living with HIV is ostracized, their status made public and their job made redundant then the crucial benefits of social life, which according to theory of justice postulated by Rawles are rights and liberties are being significantly outweighed by the sacrifices and compromises. This reflecting a reversion to what Rawles would call an undeveloped and “unjust” society thus defeating the very aim of the supreme source of law; the constitution. Other less overt acts could be considered discrimination, such as moving the employees to a job position of perceived less risk (especially where no actual risk existed) to others, possibly out of public eyes. If in knowing that the state allows the employer to move the employee then such actions by virtue of being motivated by a “medical condition” or “disability” displays unequal and unfair treatment which is the reflection of an unjust society. If however the risk is real and significant then one may argue that the state may be justified in treating individuals living with AIDS differently for the protection of others in the working environment as well as customers. This may be the situation with individuals who work in certain food industry especially where they are prone to regular wounds and where they deal with uncooked produce for consumption.  In such situations what may appear as arbitrary discrimination could in fact be justified discrimination.

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