Is being HIV positive a disability deserving special protection? What about COVID-19?

By Anton Katz

Jacques Hoffmann applied for employment as a cabin attendant with South African Airways.

He went through a four-stage selection process comprising a pre-screening interview, psychometric tests, a formal interview and a final screening process involving role-play. He was found to be a suitable candidate for employment. However, he was subject to a medical examination, which included a blood test for HIV/AIDS.

The medical examination found him to be clinically fit and thus suitable for employment, and the blood test indicated he was HIV positive. The medical report was altered to read that the appellant was ‘H.I.V. positive’ and therefore ‘unsuitable’. Hoffmann was informed that he could not be employed as a cabin attendant because of his HIV positive status.

Mr Hoffmann challenged the constitutionality of the refusal to employ him in the courts. He argued that SAA’s rejection constituted unfair discrimination, and violated his constitutional right to equality, human dignity and fair labour practices. SAA denied it acted unlawfully. SAA argued that his exclusion from employment had been dictated by its employment practice, which required the exclusion from employment as cabin attendant of all persons who were HIV positive.

SAA justified this practice on safety, medical and operational grounds. SAA said that its flight crew had to be fit for world-wide duty. In the course of their duties, they are required to fly to yellow fever endemic countries. To fly to these countries, they must be vaccinated against yellow fever, in accordance with guidelines issued by the National Department of Health.

Persons who are HIV positive may react negatively to this vaccine and may, therefore, not take it. If they do not take it, however, they run the risk not only of contracting yellow fever, but also of transmitting it to others, including passengers. SAA added that people who are HIV positive are also prone to contracting opportunistic diseases. There is a risk, therefore, that they may contract these diseases and transmit them to others.

If they are ill with these opportunistic diseases, they will not be able to perform the emergency and safety procedures that they are required to perform in the course of their duties as cabin attendants. SAA emphasised that its practice was directed at detecting all kinds of disability that make an individual unsuitable for employment as flight crew. SAA contended it had a similar practice that excluded from employment as cabin crew individuals with other disabilities, such as epilepsy, impaired vision and deafness. SAA added that the life expectancy of people who are HIV positive was too short to warrant the costs of training them.

The Constitutional Court sharply analysed the medical evidence in its consideration of the alleged unfair discrimination.

It stated: “At the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in society, must be accorded equal dignity. That dignity is impaired when a person is unfairly discriminated against. The determining factor regarding the unfairness of the discrimination is its impact on the person discriminated against. Relevant considerations in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which the rights or interests of the victim of the discrimination have been affected, and whether the discrimination has impaired the human dignity of the victim. Hoffmann is living with HIV. People who are living with HIV constitute a minority. Society has responded to their plight with intense prejudice.”

The Court held that prejudice can never justify unfair discrimination. The Constitutional Court rejected SAA’s defences; it found SAA had acted unlawfully and ordered them to immediately offer Mr Hoffmann employment as a cabin attendant.

It stated: “People who are living with HIV must be treated with compassion and understanding. We must show ubuntu towards them. [Ubuntu is the recognition of human worth and respect for the dignity of every person.] They must not be condemned to ‘economic death’ by the denial of equal opportunity in employment.

This is particularly true in our country, where the incidence of HIV infection is said to be disturbingly high.”

As COVID-19 continues its seemingly destructive path through humans South African society may wish to consider whether the HIV Hoffmann case is of any relevance. There are obvious and significant differences between HIV and COVID-19. HIV viciously targeted minority sectors in society. COVID-19 has a far wider impact. It targets millions and millions more people. And many people who test COVID positive experience no symptoms. Not so with HIV.

So medically HIV and COVID are vastly different. But certain similarities cannot be ignored. Many have lost their lives. Governments have been criticised. There has been a media frenzy with blanket coverage of the epidemic and pandemic. Social practices have changed radically. And conspiracy theories have been rampant.

What is important is that we treat each other with respect and the dignity and self-worth of every must be recognised and protected. That means in all respects, from employment opportunities to when rights must be limited for the benefit of the entire society they are limited in the least restrictive manner.

Vaccine roll out must be done in a fair and just manner with no corruption or other unlawful opportunism occurring.

• Published in the print edition of the March/April Pesach 2021 issue. Download the March/April 2021 issue PDF here.

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