Coerced testing usually follows employer offers to pay for private medical care.
About a third of South Africans living with HIV report experiencing HIV-related stigma, according to a 2014 survey conducted among about 10 500 people by the Human Sciences Research Council for the South African National Aids Council (Sanac). The study also found that around 25% of respondents who reported having lost work in the year preceding the research attributed this to HIV discrimination.
According to Legal Aid South Africa legal support practitioner Tshepang Monare, employers accused of such discrimination may find themselves at the Commission for Conciliation, Mediation and Arbitration or bargaining councils, though most discrimination cases usually end up at the Labour Court.
If the court finds in the employee’s favour, employers may be forced to pay up to two years’ wages as well as additional claims for damages, says Monare.
As the hotline enters its second year, paralegals are fielding many calls, not from corporate employees but rather from those working in small companies, as well as from domestic workers.
HIV discrimination never went away
South Africa’s Aids Law Project won several landmark cases in support of HIV-positive people’s rights. In 2010, the project closed its doors and re-emerged as the more broadly focused public interest law organisation Section27, which trained the hotline’s paralegals.
Six years after the Aids Law Project closed, some employers may be smarter about disguising their discrimination, but many of the ways in which employees experience workplace HIV discrimination remain the same, according to Section27 paralegal Violet Kaseke.
Domestic workers remain some of the most vulnerable to HIV workplace discrimination, and this may include being tested for HIV without consent, she says. This coerced testing usually follows an employer’s offer to pay for private medical care. Having seen three such cases in as many months, Kaseke says she fears this type of discrimination may be on the rise.
“While within big companies, this may be an issue of the past. What we think is happening is that within small and medium-sized companies there are still instances of discrimination against HIV-positive people,” says Section27 executive director Mark Heywood, who previously headed the Aids Law Project.
According to Heywood, the Aids Law Project succeeded in establishing a legal framework to protect people living with HIV. What it did not succeed in was ensuring that people knew their rights under the law or had access to legal representation to enforce them.
“We didn’t close the Aids Law Project because the problem had been solved, we closed it because we wanted to expand,” says Heywood. “The level of discrimination against people living with HIV never went away.”