Discrimination against people with HIV/AIDS in Greek, EU and Australian Law: The Employment Law perspective
Dimitrios G. Goulas, Ph.D, LL.M.*
Greek and EU legislation prohibit discrimination in employment and work on grounds of disability, among others. In its recent case-law on the matter, the Court of Justice of the European Union has taken several important steps towards enhancing and deepening the protection of HIV-positive workers. Although the legal characterisation of HIV/AIDS as disability has not been specifically addressed by the Court, the definition of disability currently enshrined in its jurisprudence reflects the “social model of disability”. This broader and multi-dimensional conception of disability echoes the protective guidelines of the United Nations’ Convention on the Rights of Persons with Disabilities and its Optional Protocol. According to this notion, the focus shifts from the health condition itself, which was the case under the “medical” or “individual” model, to “the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”. This new approach of disability has been followed recently by the German Federal Labour Court along with several other courts in Europe and elsewhere. To the contrary, the Greek Court of Cassation recently took the view that the dismissal of a HIV-positive employee was lawful due to the legitimate concern of the employer to protect the company’s interests and secure peaceful working relations following a series of complaints and pressure by other workers. Not surprisingly, though, this led to the European Court of Human Rights giving a judgment against Greece after finding a violation of Articles 8 (right to private life) and 14 (non-discrimination) of the European Convention of Human Rights. Equally interesting disputes are also to be found in the respective Australian jurisprudence.
Against this background, the present paper addresses the issue of equal treatment and non-discrimination of HIV-positive workers on grounds of disability, according to Greek, EU and Australian law. With a view to drawing comparisons and similarities between the various legal frameworks, the paper focuses on the respective case-law in Greece/Europe and Australia. It thus tries to outline proposals and best practices for effectively tackling HIV/AIDS-related discriminations in both legal orders.
keywords: HIV/AIDS, non-discrimination, CJEU, Employment law.
HIV/AIDS related stigma and discrimination
People living with HIV/AIDS (PLHA) face serious discrimination, stigmatisation and stereotypes in almost every aspect of their personal, social and professional life. In areas of social interaction as diverse as education, housing, healthcare transport or employment, actual or alleged HIV-positive serostatus is capable of leading to direct or indirect discrimination. In particular, discrimination and harassment against HIV-positive people in the workplace is among the first repercussions to be suffered. PLHA are likely to face less favourable treatment in regards of recruitment, working conditions and termination of the employment relationship, while they often remain long-term unemployed. HIV/AIDS-related stigma and prejudice often lead to social exclusion and delayed initiation of the appropriate medical treatment. The marginalisation and isolation suffered by PLHA often constitute a strong counter-incentive for them to ask for proper help or advice, which means that the social environment is also a significant part of the epidemic. In this regard, non-discrimination and employment policies face common challenges in Greece, the rest of EU member states and Australia.
The present paper specifically addresses the legal framework which aims at combating discriminations against PLHA in the workplace. Even though its focus will remain on the EU, Greek and Australian legislation and case law, the respective international legal framework will not be left out of consideration.
The protection against discrimination as a universal right
The protection against discrimination constitutes a universal human right, enshrined in various national constitutions around the world, which also falls within the ambit of major international human rights conventions. According to Art. 2 of the Universal Declaration of Human Rights, “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. A similar provision can also be found in Art. 2(2) of the International Covenant on Economic, Social and Cultural Rights, while Convention No. 111 of the International Labour Organisation (which has been signed and ratified by both Greece and Australia, as well as by most of the EU member states) concerns specifically discrimination in respect of employment and occupation.
At a European level, Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms states that “[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Given that the list contained in Art. 14 is not restricted, the discrimination is also prohibited even if it is based on other grounds, such as disability or HIV infection. The protection enshrined in this provision, which applies combined with the particular rights protected by the Convention, was later strengthened by Protocol No. 12 to the Convention (not yet ratified by the Hellenic Republic).
Specifically concerning discrimination on the basis of disability, the Convention on the Rights of Persons with Disabilities, which was adopted by the General Assembly of the United Nations on 13 December 2006 (and were subsequently ratified by Australia, Greece and the EU), is of paramount importance. Moreover, quite important is also the ILO Convention no. 159, concerning Vocational Rehabilitation and Employment (Disabled Persons), which was also signed and ratified by both Greece and Australia. With regard to HIV-related discrimination, ILO’s Recommendation no. 200 of 17 June 2010, concerning HIV and AIDS in the world of work, is particularly to be taken into account.
Non-discrimination in EU law
The Treaties and the Charter of the Fundamental Rights
Art. 21 of the Charter of the Fundamental Rights of the European Union states that “[a]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”. On the other hand, Art. 26 of the Charter holds that “[t]he Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”. According to Art. 19 TFEU (ex Art. 13 TEC) the EU “may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. Meanwhile, the European Court of Justice (ECJ) in its decision in Mangold 2 famously declared that “The principle of non-discrimination on grounds of age must thus be regarded as a general principle of Community law”.
The Directive 2000/78/EC
With a view to combating discrimination on some of the grounds set in Art. 13 TEC (now Art. 19 TFEU), the Directive 2000/78/EC 3 was put into place. In its first article the Directive clarifies that “[t]he purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation”. More specifically, the protection of the Directive covers solely employment and occupation, including recruitment criteria, employment and working conditions, ranging from promotion to pay and dismissal, access to vocational training, membership of trade unions etc.
HIV-related discrimination in EU law
HIV/AIDS as an autonomous ground of discrimination
HIV/AIDS is not included among the grounds of discrimination named in Art. 19 TFEU (ex Art. 13 TEC) or in the Directive 2000/78. Already in its early case law on the matter, the Court of Justice of the European Union took the view that the specific provisions of the Directive should be read as giving expression to the principle of equal treatment, which derives from various international instruments and from the constitutional traditions common to the Member States. 4 Could such an interpretation lead us to the conclusion that the general principle of non-discrimination could also prohibit the less favourable treatment of workers on ‘additional’ grounds, other than the ones expressly named in the Directive, the Treaty or the Charter?
The Court of Justice expressly clarified that this is not the case. In Chacón Navas 5 the Court had the chance to emphasise that Art. 13 TEC (now Art. 19 TFEU), which constituted the legal basis of the Directive 2000/76, did explicitly refer to specific grounds of discrimination. Thus, the Court came to conclude that neither the provisions of the Directive can be extended to cover additional grounds of discrimination, nor can this be achieved directly through the general principle of non-discrimination6. This exhaustive interpretation of the grounds of discrimination listed in the Directive was later confirmed by the Court in various decisions. Therefore, in line with the established case law of the CJEU, HIV/AIDS cannot be considered as an additional ‘suspect’ characteristic according to EU law.
HIV/AIDS as ‘disability’
As we have already seen, disability is one of the grounds of less favourable treatment which fall within the ambit of EU anti-discrimination law. Discrimination against PLHA could thus well fall within the scope of EU law, were it to be regarded as a ‘disability’. The Court first defined the concept of ‘disability’ in its decision in Chacón Navas as “a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”.7 In the Court’s view, the abovementioned impairment, unlike sickness, must hinder the participation of the person concerned in professional life “over a long period of time”8.
The definition of disability set out by the Court in Chacón Navas met with widespread (and justified) criticism. By adopting this definition the Court put too much weight on the health condition of the alleged victim of discrimination. In so doing, the Court seemed to embrace the ‘medical’ approach to disability. This understanding of disability focuses on the physiological or biological dysfunctions of the body, its pathological state or its functional limitations, which deviate from those of a healthy, ‘normal’, ‘non-disabled’ individual. In other words, disability is seen as a personal problem of the individual, inextricably linked with its medical condition. Contrary to the well-established purposive and expansive interpretation given to the non-discrimination Directives by the Court of Justice, the adoption of the restrictive ‘medical approach’ decreases considerably the scope of disability-based non-discrimination.
The ‘social model’ of disability
The ‘social model’ of disability, which has been discussed in social sciences and research since the 1970’s and has been openly embraced by the UN Convention on the Rights of Persons with Disabilities, sprang from the notion that disability is not a personal pathology but, rather, a social situation. Under the social model, the focus shifts from the body to the social relations and interactions. The notion of disability derives not merely from the impairment but from the interaction of the individual with its social, attitudinal or even architectural environment. Against this background, stigmatisation, stereotypes, prejudice and social exclusion significantly contribute to how the individual experiences the disability and largely weigh on the extent to which the equal participation in social and professional life is hindered. Moreover, due to its focus on the social interactions, the ‘social’ approach to disability manages to provide for a wider spectrum of protection against discrimination; that is to say, it effectively protects against discrimination on the basis of past disability with continuing stigma, forecasted, falsely attributed or alleged illness which generates hostility, asymptomatic diseases, such as HIV, etc.
The CJEU adapts its case law to the ‘social model’ of disability
Some seven years after its judgment in Chacón Navas, the Court of Justice took the chance to fine-tune its jurisprudence concerning disability-based discrimination and to respond to the criticism expressed. In HK Danmark9 the Court underscored that “where international agreements are concluded by the European Union they are binding on its institutions, and consequently they prevail over acts of the European Union”. It thus concluded that Directive 2000/78 must, as far as possible, be interpreted in a manner consistent with the UN Convention, which meanwhile had been signed and ratified by the EU.10 In line with the UN Convention, the Court went on to adopt a new definition of disability, echoing the one used in the Convention itself. According to the Court11 “the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”. Partly shifting away from its judgment in Chacón Navas, the Court then noted12 that “if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78”. This new approach to disability, reflecting the social model in the light of the UN Convention, was later confirmed by the Court in its subsequent decisions on the matter.
Applying the same criteria to PLHA would mean that they could also enjoy the protection guaranteed by EU law against discrimination based on disability. The same conclusion was also reached recently by the Federal Labour Court of Germany13. In the UK, a person who has HIV is explicitly considered a disabled person under the ‘Equality Act 2010’ and is protected by the Act effectively from the point of diagnosis. Outside the ambit of EU law, PLHA have been recognised as victims of unlawful discrimination by various national tribunals.14
HIV-related discrimination in Greek law and the European Convention of Human Rights
The general legal framework
The Greek legislation does not include provisions specially tailored to tackle HIV-related discrimination in the workplace. Of course, the general framework of protection is provided by the Greek Constitution. Furthermore, the international conventions mentioned above, most prominently the European Convention of Human Rights (ECHR), signed and ratified by the Hellenic Republic, also aim at combating discrimination. Of course, it goes without saying that EU law provides the main body of provisions directly aiming at tackling discrimination in the workplace. Law 3304/2005 transposed anti-discrimination Directives 2000/43/EC and 2000/78/EC into the national law and, in essence, reflects all the provisions of EU law analysed above. Moreover, significant protection against discrimination may also stem from the general provision enshrined in Art. 281 and 288 of the Greek Civil Code, which prohibit the abusive exercise of rights.
On the other hand, it is also worth mentioning that as recently as 2012 a ministerial decision authorised police to massively arrest and detain alleged sex workers, who were forced to be tested for HIV, among other diseases. Those found to be HIV-positive had their names, personal data and mugshots published in the media, on the grounds of protecting public health, the then minister of health citing them as a ‘health bomb’. These clearly discriminatory and stigmatising provisions were reinstated in 2013 until they were repealed again in 2015. Shortly after her release, one of the arrested HIV-positive women committed suicide.
The judgment in the case I.B. v Greece
Mr I.B. had been working since 2001 in a company which manufactures jewellery. After he confessed to some of his colleagues that he was HIV-positive, the staff put pressure on the employer to dismiss him. In order to allay the fears of the employees, the employer invited an occupational-health doctor, who tried to provide them with accurate medical information about the disease and the threats they (do not) face in the workplace. Some 33 (out of 70) employees insisted and sent the employer a letter, requiring the dismissal of their colleague on the ground of his being HIV-positive, with a view to “preserving their health and their right to work”. Two days later the employer dismissed the employee, who was subsequently employed by another company.
Both the Athens Court of First Instance15 and the Court of Appeal16, before which the case was brought, ruled that the termination of the working contract has been illegal. The sole reason for the dismissal of the employee was his health status, hence it constituted an abusive exercise of the employer’s rights. The turmoil among the staff could not alter the above conclusion, since it was clearly based on an erroneous belief about possible health dangers.
Subsequently, the dispute was brought before the Greek Court of Cassation17 (the highest court for civil and criminal cases). It took the Court of Cassation no more than one (long) sentence, in order to quash the court of appeal’s decision. In the court’s view, the dismissal was not the result of hostility or revenge on behalf of the employer; on the contrary, it was justified by the well-meant interests of the employer, that is to say, to ensure peace of mind among the employees and to restore the smooth operation of the enterprise. Unsurprisingly, this judgment met with almost unanimous criticism, while the decisions of the lower tribunals were largely greeted.
Finally, a complaint against Greece was brought before the European Court of Human Rights (ECtHR), relying on Article 8 (right to respect for private and family life) in conjunction with Article 14 (prohibition of discrimination) of the European Convention of Human Rights (ECHR). The ECtHR reiterated that, according to its well-established case law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar or comparable situations – which was the case here. The ground for the less favourable treatment of the employee was the fact the he was HIV-positive, which sparked the reaction of his colleagues. HIV is not seen as a merely medical condition but as adversely affecting various aspects of person’s private life, thus falling within the ambit of Art. 8 of the ECHR. In so holding, the Court emphasised the stigmatisation and social exclusion suffered by PLHA. Against this background, in its judgment in I.B. v Greece18 the ECtHR took the view that the Greek Court of Cassation failed to properly and cautiously weigh up the interests of the employee, who was in a very vulnerable position, against those of the employer.
HIV-related discrimination in Australian law
The Disability Discrimination Act
Parallel to particular State or Territory anti-discrimination statutes concerning disability, legal protection against discrimination is also provided at a Federal (Commonwealth) level in Australia by the 1992 ‘Disability Discrimination Act (Cth)’ (DDA). The DDA was later significantly amended by the ‘Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)’. The DDA employs a relatively broad definition of disability and provides a wide scope of protection, in tune with the UN Convention, ratified by Australia in 2008. Unlike Directive 2000/78/EC, the DDA prohibits discrimination on the ground of disability not merely in work and employment but in many areas of public life, as diverse as education, access to premises, the provision of goods, services and facilities, the provision of accommodation etc.
More specifically, Section 4 of the DDA defines ‘disability’ as broadly as including: “(a) total or partial loss of the person’s bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person’s body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”. As is already apparent from the list, HIV/AIDS qualifies as ‘disability’ under (c) and (d). What is also very important is that the DDA explicitly protects against a disability which “presently exists; or previously existed but no longer exists; or may exist in the future (including because of a genetic predisposition to that disability); or is imputed to a person.”, thus further widening the ambit of protection to cover (inter alia) past, predicted and asymptomatic diseases. Finally, the DDA interestingly clarifies that ‘disability’ also “includes behaviour that is a symptom or manifestation of the disability”.
According to Section 21A of the DDA, the prohibition of disability-based discrimination does not apply, if, “because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person”. In the decision X v The Commonwealth19the High Court of Australia examined the issue, whether there was an unlawful discrimination when a person has been discharged from the army after having been tested positive to HIV. The majority of the Court held20 that “contrary to the reasoning of the Commission, "the inherent requirements" of a "particular employment" are not confined to the physical ability or skill of the employee to perform the "characteristic" task or skill of the employment. In most employment situations, the inherent requirements of the employment will also require the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees. That is also the situation with Army service. Whether X does in fact pose a risk to his fellow soldiers by reason of his particular employment is a matter that will have to be determined by the Commission in a new hearing”.
The Fair Work Act
Parallel to particular Federal, State or Territory anti-discrimination statutes concerning disability, the Fair Work Act 2009 (FWA) came into force to provide an additional legal basis for protection. Early in the text of this Act, in Section 3, it is underscored that the promotion of social inclusion is among its major objectives. In the very same provision (Section 3a) it is also clarified that the Act “take[s] into account Australia’s international labour obligations”. According to its ‘Division 3’ (Sections 340ff.), the FWA prohibits that a person take adverse action against another person because of a workplace right. The ‘adverse action’ is defined very broadly and covers all stages of the employment relationship, from recruitment to dismissal (Section 342). More importantly, Section 351 (entitled ‘Discrimination’) states that “[a]n employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s” disability (among other grounds). Section 351(2) clarifies, though, that the protection does not apply when the adverse action is “(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or (b) taken because of the inherent requirements of the particular position concerned”. Moreover, Section 772(f) specifically prohibits the termination of an employee’s employment on the grounds of disability (among others).
The notion of ‘discrimination’ is not defined in the Act itself and it is unclear whether the respective definition employed in anti-discrimination acts may apply. In this respect, it also seams uncertain whether both direct and indirect discrimination is covered. Similarly, no definition of ‘disability’ is also to be found in the FWA. However, given the fact the UN Disability Convention has been taken into account, the interpretation of disability should be in line with the definition employed in the Convention. In this regard, HIV/AIDS discrimination is also to be prohibited under the FWA.
Both in Greece/EU and Australia PLHA endure stigmatisation and marginalisation. The legal instruments are in place and can contribute significantly to combating stereotypes and prejudice. But it needs much more than that to effectively tackle such long-established discriminating social patterns. Mobilising the civil society and involving the NGO’s could supplement the existing legal framework, in order to proactively prevent, detect and effectively stamp out HIV-related discrimination in the workplace, rather than just retroactively prosecute it.
* Adjunct (Democritus University of Thrace Law School); Attorney-at-law (firstname.lastname@example.org)
2 C-144/04 Mangold ECR  I-9981, para 75.
3 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation  OJ L 303/16.
4 C-144/04 Mangold ECR  I-9981, paras 74ff.: “In the second place and above all, Directive 2000/78 does not itself lay down the principle of equal treatment in the field of employment and occupation. Indeed, in accordance with Article 1 thereof, the sole purpose of the directive is ‘to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation’, the source of the actual principle underlying the prohibition of those forms of discrimination being found, as is clear from the third and fourth recitals in the preamble to the directive, in various international instruments and in the constitutional traditions common to the Member States”. C-555/07 Kücükdeveci ECR  I-00365, paras 20-23.
5 Case C-13/05, Chacón Navas v Eurest Colectividades SA  ECR I-6467.
6 Ibid, paras 54-56.
7 Ibid, para 43.
8 Para 45.
9 Joined Cases C-335/11 and C-337/11 HK Danmark (acting on behalf of Jette Ring) v Dansk almennyttigt Boligselskab and HK Danmark (acting on behalf of Lone Skouboe Werge) v Dansk Arbejdsgiverforening (acting on behalf of Pro Display A/S, in liquidation)  ECR, para 28.
10 Ibid., paras 30-33.
11 Ibid., para 38.
12 Paras 40-41.
13 Bundesarbeitsgericht, 19.12.2013 – 6 AZR 190/12, NZA 2014, 372, at 56-58.
14 See for example the decision of the US Supreme Court in Bragdon v. Abbott, 524 U.S. 624 (1998). The Court ruled that a persons’ HIV infection “substantially limits” a major life activity within the meaning of the ‘Americans with Disabilities Act’. Also see: Constitutional Court of South Africa, Hoffmann v South African Airways (CCT17/00)  ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1235 ;  12 BLLR 1365 (CC) (28 September 2000); Labour Court of South Africa, Judgment of 16 February 2011, Gary Shane Allpass v. Mooikloof Estates (Pty) Ltd. (Case No. JS178/09); Industrial Court of Kenya, VMK v. Catholic University of Eastern Africa, Cause No. 1161 of 2010; Canadian Human Rights Tribunal in the case Fontaine v Canadian Pacific Ltd, Case No. TD 14/89, Judgment of 27 October 1989.
15 Decision 1042/2006, DEE 2007, p. 1359.
16 Decision 764/2008, EErgD 2010, p. 1438.
17 Decision 676/2009, EErgD 2010, p. 1449.
18 (App. 552/10), 3 October 2013.
19 X v The Commonwealth  HCA 63; 200 CLR 177.
20 Id. at 11.