Charting a Legal Response to HIV and AIDS and Work from the Perspective of Vulnerability

• Author: Rose-Marie Antoine
• Pages: 38-70

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SEXUALITY, SOCIAL EXCLUSION AND HUMAN RIGHTS

THE CONTEXT OF RISK AND VULNERABILITY

The issues of HIV remain complex ones, firmly grounded in obstinate

and wide-ranging problems related to social organization. Of these

social problems, perhaps none is more relevant or damaging than that of

enduring inequities in society, particularly gender inequities and issues of

sexuality. Such inequities create groupings which are more vulnerable to

HIV. Within this paradigm it is difficult for the law to regulate, or even

locate and define, HIV in the legal spectrum. Nonetheless, we must

construct an appropriate legal framework for HIV.

This legal programme should also re-evaluate our mindsets and prejudicial

practices in more general areas. The law needs first to identify the

vulnerabilities in the society which present risks in terms of HIV. Law is

not merely a passive response to social problems but must embrace a

proactive and participatory approach. The law cannot merely depend on a

consensus in a society to shape itself. This is particularly important where it

has to embrace normative and highly controversial ideas. Indeed, the law

must help to shape the very society from which it springs. There is, thus, a

need for a legislative strategy centred on general equality concerns. Such a

strategy will more effectively embrace issues of risk in relation to HIV.

This chapter takes a two-pronged approach. First, some important

conceptual questions and even philosophical questions need to be

addressed. These will help to define the direction that the law must take.

The more pragmatic legal concerns relating to HIV and the law in the

region are then addressed.

Charting a Legal Response to

HIV and AIDS and Work From

the Perspective of Vulnerability

Rose-Marie Antoine

Chapter 3

39

CHARTING A LEGAL RESPONSE

WHY FOCUS ON HIV AT THE WORKPLACE?

This chapter focuses on HIV in the work sphere. However, the issues

that arise are mirrored in the wider society, as indeed, the workplace is a

microcosm of that society. The world of work occupies much of the

space of our lives. In addressing access to work, treatment at work and

termination of employment, we encounter many of the societal

assumptions and inequities that challenge the society and create

vulnerabilities to HIV. For example, issues which involve sexual

orientation, gender, race and class are confronted at the workplace. The

law relating to work, the labour law, is itself broad, encompassing sex

work, immigration, social welfare, even constitutional and human rights.

It is instructive, too, that even legal concepts utlized in labour law,

which we believe to be objective, such as the concept of reasonableness,

are, in fact, based on social values. Thus, if a person is dismissed because

of his or her HIV status or sexual orientation, or fails to be dismissed

when he or she sexually harasses another, the question of whether that

dismissal is reasonable very much depends on the values current in that

society, not some neutral, extremely rational universal truth. One sees

this very clearly in the BICO case1

from Barbados, where a female

magistrate referred to a male worker’s actions in making remarks about

his female co-workers private parts, peeping at them when they changed,

etc., as merely ‘ungentlemanly conduct’. That magistrate believed that

such a worker should not be dismissed for such conduct.

More pragmatic concerns prioritize the choice of examining HIV at

the workplace. HIV and AIDS are impacting on the most productive

parts of our societies, that is, our young people and our female population.

Acknowledging this leaves us with no choice but to take steps to harness

the potential of our young people and women, indeed anyone, affected

by AIDS. They will be given the opportunity to contribute to the society

so that the society, as a whole, can benefit from their potential

productivity.

Workers who do not receive treatment for HIV, or consideration in

the workplace, are less likely to be able to perform at work, either because

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SEXUALITY, SOCIAL EXCLUSION AND HUMAN RIGHTS

they are more ill than needs be, or because of psychological factors, thereby

having hugely negative impacts on productivity. For example, more sick

days, will be lost, thus directly impacting on the workplace. They are

also less likely to remain at the workplace either because of direct

discrimination such as with dismissal, or ‘voluntary’ separation. Certainly,

too, they are less likely to be hired, thus depriving the workforce of

potential productive elements.

Thus, the law has an active role to play in the endeavour to encourage

and compel those intimately involved in the employment sphere and,

indeed, the wider society, to ensure that people living with HIV form an

integral and useful part of the work environment. It is in the workplace

that we are likely to see the greatest impact of HIV and AIDS and that is

where we must turn if we are to minimize the disastrous effects on our

economies and societies.

QUESTIONING THE HUMAN RIGHTS PARADIGM IN RELATION

TO HIV

The ‘rights’ approach to HIV has been made fashionable by the

International Labour Organization (ILO) and other United Nations (UN)

organizations. Thus, we typically speak of ensuring ‘rights’ for persons

with HIV as being a part of some form of definable basket of rights.

While I understand the philosophy of the human rights approach to

HIV, I am somewhat cautious about the context of this approach and

even whether it is the most pragmatic route. The problem is not with

rights, generally. I suggest that while the rights approach is necessary, it is

not sufficient in addressing HIV and AIDS and is certainly not a panacea

for all ills. The rights approach should be carefully scrutinized and its

limitations noted.

If we accept the premise stated above, that vulnerability to HIV is a

consequence of deeper, wider vulnerabilities and inequities in the society,

the question would then be: should the focus be on HIV or on broader

grounds of discrimination and inequity, such as gender and race? If persons

are susceptible to the disease because of certain social constructs, based on