oa Comparative and International Law Journal of Southern Africa - HIV / AIDS and equal opportunities in the workplace : the implications of the Employment Equity Act



Largely on account of South Africa's historical circumstances, the Employment Equity Act is destined to become an important instrument for effecting equity and redress in the workplace. The Act is engendering controversy for introducing, for the first time, a statutory framework for affirmative action in the workplace so as to effect redress for blacks and women. However, the novel parameters of the Act are not confined to affirmative action based on race or gender. The Act also extends the quest for a just and equitable society to the elimination of HIV-related discrimination and securing equity and redress for people with disabilities.

Against the backdrop of HIV / AIDS-related discrimination in the workplace, this article discusses the likely impact of the Act on securing equality for people living with HIV / AIDS (PWAs). The focus is on elimination of unfair discrimination so as to create equal opportunities for PWAs. The article also attempts to assess the likely impact of the Act on the treatment of people with disabilities, but only to the extent that HIV and AIDS can be said to fall within the ambit of disabilities under the Act. Where pertinent, the article draws from jurisdictions such the United States, Canada, Australia and the United Kingdom where directly or indirectly, HIV-related discrimination is subject to legislation.
Leaving aside the general injunction on employers to eliminate unfair discrimination in the workplace, the discussion will be constructed around four main areas in which the Act impacts on ensuring or creating equal opportunities for PWAs. Firstly, it outlaws unfair discrimination against an employee on one or more grounds, including HIV status.
Secondly, it prohibits medical testing of an employee, including, of necessity, an HIV test. Thirdly, it specifically prohibits determining an employee's HIV status unless such testing has been determined to be justifiable by the Labour Court in terms of the Act. Finally, the Act provides for affirmative action for, , people with disabilities. It will be submitted that PWAs fall within the ambit of people with disabilities, especially after the onset of AIDS.


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