The Workplace: Denial of Employment

• Pages: 54-56

Contenidos

• The Issue.
• Legal and Policy Considerations.
• Practice Examples.
• References.

Page 54

The Issue

Discrimination in the workplace may occur when a person is denied employment because of his or her actual or perceived HIV status. Discrimination resulting in a denial of employment can arise during the hiring and recruitment process or when an existing employee is terminated as a consequence of his or her HIV status. In addition to denial of employment, HIV status might also be used to limit an employee's opportunities, such as for a promotion. Many laws prevent employers from compelling HIV testing (see Topic 2.3) or disclosure of HIV status (see Topic 2.6) of a prospective or current employee. However, an employee's HIV status may become known to the employer through a variety of circumstances, including voluntary disclosure by the employee, medical and insurance reports sent to the employer (although these may be protected by privacy laws), or through a third party revealing this information to the employer. Once the employer is privy to an employee's HIV-positive status, some employers will attempt to terminate the employee based on this information. Consequently, many countries have enacted laws that protect HIV-positive persons in recruitment, hiring, and employment.

Legal and Policy Considerations

Denial of employment based upon HIV status violates antidiscrimination laws and policies in many countries. Labor and employment legislation and policies often provide generalized protection from discrimination that results in a denial of employment. These laws may specifically prohibit an employer from refusing to hire an applicant or from firing an employee based upon HIV status. More often, courts have defined the antidiscrimination provisions in labor and employment legislation to apply in the context of HIV status. In some countries, courts also have interpreted general antidiscrimination provisions in legislation or constitutional provisions to prohibit denial of employment based upon HIV status.

In countries with strong antidiscrimination laws protecting HIV-positive persons from denial of employment, employers do not have the right to know the HIV status of an applicant or employee and should not attempt to discover this information. To satisfy the antidiscrimination requirements, employers must strive to create employment security for workers living with HIV until they can no longer work. This may include providing...