SAA admits HIV discrimination

Johannesburg - South African Airways conceded in the Constitutional Court on Friday that denying an HIV-positive applicant employment as a cabin attendant on the basis of his medical status was unfair discrimination and was unconstitutional.

"SAA's submission is that it accepts that the refusal to consider Hoffman for employment was discriminatory in the sense that it treated him as different from other people and in a manner in which his dignity was impaired - this is discrimination as defined by the Constitution," said counsel for SAA advocate C Z Cohen.

The court was hearing an appeal against a Johannesburg High Court decision in 1998 allowing SAA to take this position against Jacques Hoffman.

A group of people wearing T-shirts identifying them as HIV-positive demonstrated outside the Constitutional Court building, waving placards reading "SAA propelled by Aids prejudice" and "Forward to fair labour practice".

Wim Trengove, counsel for Hoffman, argued earlier that the SAA's decision was irrational because it was discriminatory.

The court heard that Hoffman passed all other tests relating to his application with flying colours and was turned down solely on the basis of his HIV status.

Trengove said he accepted SAA's right to test for HIV but that it had to make a distinction between someone who had the virus and someone who was actually ill.

Had SAA applied correctly the Transnet group policy on employment adopted in 1991, it would have followed this differentiated approach, he said.

"The lack of nuance in dealing with HIV persons' job applications violates equality rights and does so in an irrational way. To exclude all HIV-positive people from this type of employment is unjustifiable."

The High Court decision against Hoffman was based on a misconception on Transnet's employment policy, he said.

But Cohen told the court SAA's decision was a "rational response" based on the safety of its passengers and other employees, and that the airline would offer employment to an HIV-positive person in a capacity other than that of cabin attendant.

He argued SAA would not employ an HIV-positive person as a cabin assistant because from the point of view of passengers, there was a risk of contamination in the event of an air crash in which people were injured.

This, he said, was the same policy adopted by airlines such as British Airways and Lufthansa.

"It is a real problem ... passengers are entitled to say if there is a risk I want to be protected against it."

Justice Albie Sachs noted that airline personnel were trained to use safety precautions to prevent transmission of any type of blood disease.

The court also raised the point that consistency would then require that the airline test all its present 2 300 cabin crew employees to detect HIV-infections picked up since they had begun employment - a practice that is not carried out.

Cohen said the airline had taken the position that Hoffman's HIV status was a disability because it implied a suppressed immune system. However, he admitted the airline did not take into consideration a nuanced approach which would have used a CD4 count above 350 as a benchmark, indicating a person was fully functional.

Hoffman's CD4, or immune cell count was not known at the time and was not a consideration for SAA.

Cohen said people infected with HIV whose CD4 count was below 350 could be inoculated for Yellow Fever, an inoculation required by SAA employees in terms of the International Aviation Organisation's rules.

He added that in rare instances Yellow Fever could be transmitted by blood contact.

Justice Sachs dismissed this defence as an "afterthought" and a kind of justification put up with an apparently scientific basis.

He also made the point that about 0,2 percent of SAA flights landed in countries where Yellow Fever occurred and that SAA could reasonably be expected to make accommodation for HIV-positive employees who could not be inoculated by not sending them to those destinations.

In any case, the court heard on Friday that Hoffman would have been able to have the Yellow fever inoculation as his CD4 count was above the 350 level.

The immune system becomes notably suppressed below this count.

The Aids Law Project, which strongly opposes pre-employment HIV testing, also made a submission to the court as an intervening party.

The ALP said SAA's policy had no regard for developments in HIV treatment and management, and was too broad in its application. It further stated concern that HIV-Aids could be subsumed under the general category of disability.

The ALP also said the way of dealing with the question of pre-employment HIV testing should not lead to amendments to the Employment Equity Act, which entrenches rights of "immeasurable importance" to HIV-positive people. - Sapa

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