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

AuthorRose-Marie Antoine
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
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
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
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.
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

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