Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
Yüklə 1,52 Mb.
|
|
· a person with a record if such a physical or mental impairment; or · a person who is regarded as having such an impairment (ADA Section 3 (2)). Federal regulations published by the US Justice Department to give effect to the ADA deem that the phrase "physical or mental impairment" to include: ".....such contagious and non-contagious diseases and conditions as ....HIV disease (whether symptomatic or asymptomatic)....". (28 CFR pp35.104, 36.104). In Bradgon v. Abbott, 118 S. Ct. 2196 (1998), the US Supreme Court addressed the issue of asymptomatic HIV infection (that is a person living with HIV but who has no symptoms of HIV) as a disability under the ADA. The case is significant not only in defining a crucial term in the ADA, but it is also the first case in which the US Supreme Court addressed issues presented by the AIDS epidemic.
Several US courts have held that HIV is a disability under the ADA. See Abbott v. Bragdon, 163 F.3d 87, 89 (1st Cir. 1998) (on remand from Supreme court, noting that "earlier phases of this litigation established that asymptomatic HIV infection constitutes a disability under the ADA"). See Alsbrook v. City of Maumelle, 156 F.3d 825, 831 n.5 (8th Cir. 1998) (HIV is a disability under the ADA). See Rivera v. Heyman, 157 F.3d 101, 103 (2nd Cir. 1998) (HIV is a disability under the Rehabilitation Act). See Deas v. River West, L.P., 152 F.3d 471, 478 n.15 (5th Cir. 1998) (interpreting Bragdon as holding that HIV inherently limits certain major life activities, but not ruling on HIV as a per se disability). Unfortunately courts in the USA have also frequently taken an unjustifiably narrow view of the meaning of "regarded as" disabled, that is the third prong of the ADA's disability definition.
In this case, as evidence of the fact that the plaintiff did not have an impairment or substantial limitation on his major life activity of work, the employer pointed out that plaintiff continued to perform his normal job duties and that his supervisors did not question his ability to do his job. The court ruled in favour of the employer. The court seems to have failed to understand that the ADA's third "regarded as" prong was meant to address discrimination based on "common attitudinal barriers" that result in the exclusion of individuals with disabilities from the workplace. 29 C.F.R. pt. 1630 , app. A § 1630.2(1) (1998). So even though the US Supreme Court has clarified the standards for determining whether an individual with asymptomatic HIV infection is an individual with a disability under the first prong of the ADA, plaintiffs choose to invoke the protection of the third prong of the ADA definition, that is the "regarded as" prong of 'disabled'. This is because a claim based on the first prong may involve, as it did in Bragdon, an intrusive inquiry into the plaintiff's private life concerning whether the plaintiff in fact has any limitation from HIV on reproductive or sexual functions (major life activities). However the restrictive statutory interpretation in Equal Employment Opportunity Commission v. General Electric Co. should be compared to the less restrictive district court's approach in United States v. Happy Time Day Care Centre, 6 F. Supp. 2d 1073, 1084 (W.D. Wis. 1998). This case involved consolidated challenges under Title III to the exclusion of a three year old from three day care programmes. In determining whether the child was an individual with a disability under the ADA, the court held that the day care providers' misapprehensions and fears, which caused the child's exclusion from the day care programmes, imposed a substantial limitation on the child's major life activity of learning.
The North American experience of HIV discrimination is documented thoroughly in "HIV/AIDS and Discrimination: A Discussion Paper" produced by the Canadian AIDS Society and the Canadian HIV/AIDS Legal Network (March 1998). The document discusses the Canadian experience of HIV discrimination and examines the experience of the United States and Australia. Over time various Canadian provinces have enacted anti discrimination legislation. But the most detailed definition of handicap or disability is contained in the Ontario code: "10. 'because of handicap' means for the reason that the person has or is believed to have had (1) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes, mellitus, epilepsy, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, or physical reliance on a dog guide or on a wheel chair or other remedial appliance or device, (2) a condition of mental retardation or impairment, (3) a learning disability, or a dysfunction in one or more of the processes involved in the understanding or using symbols or spoken language, or (4) a mental disorder ...'.(24) Further (25) the consensus of several board of enquiry decisions on the issue of AIDS is that discrimination against persons with AIDS, AIDS Related Complex (ARC) or who are HIV -positive, is prohibited on the basis that these are disabilities within the meaning of human rights laws. These rulings also emphasize that discrimination on the basis that a person is perceived to have one of the conditions listed above is also prohibited." (our emphasis)
There are anti-discrimination laws in all of Australia's states and territories and in the federal jurisdiction. HIV anti-discrimination claims may be made under provisions relating to discrimination on the ground of "impairment" or "disability". The relevant Federal law is the Disability Discrimination Act 1992 (DDA of 1992). The DDA defines disability as follows: 1. total or partial loss of a person's bodily or mental functions; 2. total or partial loss of a body's use; 3. the presence in the body of organisms causing illness or disease; 4. the presence in the body or organisms capable of causing disease or illness; and includes a disability that: a. presently exists; b. previously existed but no longer exists; c. or may exist in the future; d. is imputed to that person. (DDA 1992, Vol. 10, Title 165: Employment). The Federal law defines "disability" to include the presence in the body or organisms causing or capable of causing disease or illness and thereby includes HIV as a disability. During 1991 the Anti-discrimination Board in New South Wales held a public enquiry into HIV/AIDS discrimination. The number of complaints of HIV discrimination received by the board were not nearly representative of the extent of discrimination experienced by PLWHA's. They found that the actual level of discrimination was disproportionate to any rational examination of the causes of concern for the transmission of the virus (modes of transmission). The board made recommendations in respect of HIV/AIDS discrimination in the areas of inter alia media, accommodation, education, employment, services, health care, emergency services, autopsies, law and insurance. The Anti-Discrimination Act of the state of New South Wales includes specific provisions for civil and criminal remedies for vilification on the grounds of HIV/AIDS. (27) The vilification legislation was introduced following a comprehensive public inquiry into HIV discrimination - referred to earlier. (28) HIV/AIDS vilification is defined as the incitement, by a public act, of hatred towards, serious contempt for, or severe ridicule of a person with HIV/AIDS on the grounds of the person's HIV \ AIDS status. Criminal penalties apply where the means of incitement include threatening physical harm towards, or towards any property of, a person or group of persons. U.K.
The DDA sets out a number of legal justifications for prima facie unlawful discrimination, which are to some extent mitigated by a duty to make reasonable adjustments under section 6 of the DDA. There are no reported UK cases under these provisions involving HIV and the general law relating to disability discrimination is at an early stage of development.(30) THE IMPLICATIONS OF: NOT LISTING HIV \ AIDS AS A PROHIBITED GROUND; DEFINING HIV \ AIDS AS A DISABILITY Discrimination which our courts regard as unfair consist of the specified grounds in the Constitution as well as non-specified grounds. In regard to the first group they are rebuttably presumed unfair, whereas in the second "there is no presumption in favour of unfairness." See Prinsloo v Van der Linde and Ano 1997 (6) SA 759 (CC) para [28], cited with approval in Harsken v Lane NO & Others 1997 (11) BCLR 1489 (CC) para [46]. The present Bill lists the grounds that appear in the Constitution as 'prohibited grounds'. Additional grounds such as socio-economic status and HIV \AIDS are not listed in the Bill. Also, HIV \AIDS is not defined as a disability. Within this legislative paradigm proving discrimination on the grounds of HIV \AIDS (as 'any other recognised ground') under this Bill will be exacerbated by the additional burden of proof which attaches to grounds not specifically listed in the Bill. The Constitutional court states that discrimination on a non-listed ground occurs if, "... it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner." Prinsloo paras [31 and 33] cited with approval in Harsken para[46] To re-iterate Section 9(5) of the Constitution creates a presumption of unfairness of discrimination where it occurs in relation to the stated grounds contained in Section 9(3). The presumption of unfairness therefore does not apply to HIV \ AIDS. This means that PLWHA's who wish to seek recourse through the Bill would first have to prove that the discrimination was unfair, rather than the burden of proof falling on the respondent to prove that the discrimination was fair. This increased burden of proof would effectively mean that it will be more difficult for PLWHA's to successfully enforce their rights as compared to persons protected under the prohibited \ listed grounds. The additional burden of onus could conceivably act as a deterrent to people with HIV who wished to utilise the legislation. This is especially probable when one has regard to the very nature of the group - there is no "community" of people living with HIV. As a grouping, PLWHA's are generally fragmented, voiceless and justifiably often afraid of publicly disclosing their HIV status. In addition, it is unclear to what extent the Bill will protect people with HIV \ AIDS as the protection afforded will have to be determined on a case by case basis. An inquiry into whether differentiation has occurred will have to take place. If there has been none, the whole issue falls away. But if there has been differentiation, it is necessary to determine if it is 'unfair' discrimination. Harsken para [47] at 1509B-C. The 'unfairness' of the discrimination is determined in the Courts' view with primary reference to the impact which it has on the complainant. In this regard the court ought to be mindful of the underlying importance of the effect of the discriminatory conduct on the complainant's dignity. Harsken para[50] at 1510A-E Factors to determine the fairness of the discrimination include: · the complainant's position in society and past suffering from patterns of disadvantage whether the ground of discrimination is specified or not; · the nature of the provision and the purpose sought to be achieved by it, and · having consideration for the first two factors mentioned, and any other relevant factors, to what extent the rights or interests of complainants have been affected and whether their fundamental human dignity has been impaired or constitutes an impairment of a comparably serious nature.
If the above analysis shows that unfair discrimination has occurred, then the limitation provisions of the Constitution are applied. In dealing with the limitation test the perspective is shifted from the impact on the adversely affected complainant, to the rationale for the measure having that result. According to Goldstone J, "... (t) his will involve a weighing of the purpose and effect of the provision in question and a determination as to the proportionality thereof in relation to the extent of its infringement of equality." (Harsken para [52] at 1511D-EI). It is apparent that a static and formalistic interpretation of the Constitution is not envisioned in the Constitution itself. As is apparent from newly passed legislation like the Employment Equity Act and the Medical Schemes Act, new grounds which do not appear in Section 9 (3) of the Constitution, can and should be inserted into legislation. This is in order to extend fundamental rights and freedoms to those previously excluded. In this respect let us look to the following: Medical Schemes Act 131 of 1998 Registration as a Medical Scheme (e) the medical scheme does not or will not unfairly discriminate directly or indirectly against any person on one or more arbitrary grounds including race, gender, marital status, ethic or social origin, sexual orientation, pregnancy, disability or state of health. Employment Equity Act 55 of 1998 6. "No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth". [s6(1)] No. 84 of 1996: South African Schools Act. 1996. "Preamble ..................a new national system for schools which will redress past injustices in educational provision, provide an education of progressively high quality for all learners and in so doing lay a strong foundation for the development of all our people's talents and capabilities, advance the democratic transformation of society, combat racism and sexism and all other forms of unfair discrimination and intolerance, contribute to the eradication of poverty and the economic well-being of society.............. Admission to public schools 5. (1) A public school must admit learners and serve their educational requirements without unfairly discriminating in any way. National Policy on HIV/AIDS, for learners and educators in public schools, and students and educators in further education and training institutions.(31) NON-DISCRIMINATION AND EQUALITY WITH REGARD TO LEARNERS, STUDENTS AND EDUCATORS WITH HIV/AIDS 3.1 No learner, student or educator with HIV/AIDS may be unfairly discriminated against directly or indirectly. Educators should be alert to unfair accusations against any person suspected to have HIV/AIDS. 3.4 To prevent discrimination, all learners, students and educators should be educated about fundamental human rights as contained in the Constitution of the Republic of South Africa, 1996. (our emphasis) Despite some sector specific protections for PLWHA's the explicit inclusion of HIV as a stated ground of protection under legislation (the Bill) designed to promote equality would be a significant step towards the protection of the equality and dignity of people living with HIV \ AIDS. It would also contribute significantly to the fostering of openness and acceptance of people with HIV \ AIDS within our society. The Bill must recognise that wide spread documented discrimination occurs in respect of grounds other than those listed in the Constitution. Legislators should not be precluded from providing explicit protection on grounds other than those listed in the Constitution. In taking an approach that does not list grounds other than those in the Constitution, non- listed grounds in the Bill are consequently given less weight, emphasis, advantage and protection than listed grounds. The preamble to the Bill particularly focuses on race and gender discrimination and inequalities brought about by apartheid. HIV \ AIDS infection in SA is inextricably linked to race and gender dynamics in our country. What makes black women in particular vulnerable and susceptible to HIV infection is their gender, race and position in society. HIV \AIDS discrimination is often tied in with race and \ or gender discrimination. It is time for the legislators to address this intersection in a meaningful way, that is, not relegating HIV \ AIDS to the category of 'any other recognised ground'.
1. South African Department of Health, Summary of Results of the Ninth Antenatal Survey of Women Attending Ante- Natal Clinics of Public Health Services (1998). 2. The IMC is Chaired by the President - the Honourable Thabo Mbeki. 3. Heywood M. ALP, University of the Witwatersrand. Research paper commissioned for the United Nations Development Programme (UNDP) Human Development Report: South Africa, September 1998. 4. Promotion of Equality and Prevention of Unfair Discrimination Bill B 57-99 5. Ibid. Part G s 26 (d) 6. Kirby, M. 'AIDS and the Law' in SAJHR, Vol 9, Part 1, 1993, pp 1-21 at pp 3-4. 7. Equality Legislation Drafting Unit, Discussion Document 3, 24 July 1998 at p 25, par 2.6.4. 8. Equality Legislation Drafting Unit, Discussion Document 4, 12 October 1998 at (first outline of structure of Bill) at p10 with explanatory notes on p24. 9. Equality Legislation Drafting Unit, Discussion Document 5, 20 November 1998 at p 8, 9 and 11 respectively. 10. Draft Bill. October 1999, p 11 and p 14 respectively. 11. HIV/AIDS and Human Rights, International Guidelines, United Nations, New York and Geneva 1998. Pp 15-19. 12. The 55th Session of UNCHR was held in Geneva from 22 March 30 April 1999. See www.unaids.org 13. SALC is a statutory body established by the South African Law Commission Act, 1973 (Act 19 of 1973). Justice Edwin Cameron is the Chairperson of the SALC Project Committee on Aspects of the Law Relating to HV/AIDS. 14. SALC First Interim Report par 6.1 - 6.15 and Annexure D. 15. Ibid par 6.4, 6.5 - 6.5.2. 16. SALC Second Interim Report par 8.26. 17. SALC Discussion Paper 72 par 6.1-6.4 and the proposed Bill attached in Chapter 6. 18. SALC Third Interim Report par 6.69, and clause 3.1 of the proposed policy in Annexure B. 19. South African Schools Act 84 of 1996. 20. Act 130 of 1993. Section 1 21. Act 55 of 1998. See Definitions section. 22. Adv R Lagrange. Legal Opinion for ALP. 1998. 23. The section on the USA was summarised from 'HIV Infection as Disability' pp 73-80 in AIDS and the Law, 1999 cumulative supplement 3rd ed (July 1999), David W Webber, ed. 1999 Aspen Law and Business \ Panel Publishers www.aspenpub.com 24. Tarnopolsky and Pentney, Discrimmination and the Law, Dec 95 release 3 cited in Adv R La Grange, Opinion for ALP, 1998. 25. Ibid at 9-26.12 26. Summarised from 'Global Aspects of AIDS Australia' (John Godwin) pp 141-148 in AIDS and the Law, 1999 cumulative supplement (July 1999), David W Webber, ed. 1999 Aspen Law and Business \ Panel Publishers www.aspenpub.com 27. Anti-Discrimination Board of New South Wales, Discrimination: The other Epidemic. Report of Inquiry into HIV and AIDS Related Discrimination (1992). 28.Anti-Discrimination Act 1977 (NSW), Part 4F sets out the HIV vilification provisions. For a reported case in which a public housing tenant was granted compensation from his neighbours for HIV and homosexual vilification, see R. v Marinkovic (1996) E.O.C. 92-841; see also note o settlement in an HIV vilification claim against a radio station in 9 HIV/AIDS Legal Link 3 (1998). 29.See especially § 1 and sch. 1(8)(1)(a) of the 1995 Act, which provides that infection with HIV may amount to such a disability. 30. Summarised from 'Global Aspects of AIDS UK (Bob Watt) pp 160\167 in AIDS and the Law, 1999 cumulative supplement (July 1999), David W Webber, ed. 1999 Aspen Law and Business \ Panel Publishers www.aspenpub.com 31. Notice No. 1926 of 1999. Department of education, August 1999. American Chamber of Commerce in SA AMERICAN CHAMBER OF COMMERCE IN SOUTH AFRICA 17 November 1999 SUBMISSION TO THE AD HOC JOINT COMMITTEE OF PARLIAMENT ON THE PROMOTION OF EQUALITY OF PREVENTION OF UNFAIR DISCRIMINATION BILL, NO. 57 of 1999. Before making our submission, calling for amendment to the above proposed legislation, perhaps we may give a short background to the American Chamber of Commerce in South Africa, or AmCham SA, and the part it plays in the daily life of all South Africans. AMCHAM SA – WHO IS IT? The American Chamber of Commerce in South Africa (AmCham) was formed in 1977 as a non-profit association of US companies, with investments in South Africa and, also, of South African companies with US interests. As such, it represents over 200 members, who employ more than 125,000 people in South Africa. AmCham’s investment base is over R14 billion, since 1994, with five of the top 15 foreign investors in South Africa being American corporations. Of this membership base, 70% of companies are local subsidiaries of US companies; 15% are South African companies with strong US ties (such as sole agents, distributors, or with US equity participation or management control); and 15% of members are purely South African companies. As a matter of interest, collectively, our members spend over R500 million annually on matters of social responsibility and community development, either directly related to training or to education. AmCham’s members span the broad cross-section of the South African economy with interests in banking and insurance, retailing, advertising and marketing, liquid fuels and chemicals, information technology, tourism, training, automotive manufacturing and telecommunications It is therefore a daily player in South African current affairs. THE EQUALITY BILL Having regard for historical background of racial intolerance in South Africa and the real need for intervention to address the massive inequalities that result in all forms of endeavour in, the American Chamber of Commerce in South Africa endorses the need for such legislation as the Promotion of Equality and Prevention of Unfair Discrimination Bill. However, it would see this Bill finally legislated in an improved form to meet its intentions described in the Preamble. At the present moment, it is AmCham’s contention that the proposed Bill is too all-embracing and has many legal ramifications for business, probably unintended. Yüklə 1,52 Mb. Dostları ilə paylaş:
|