Hoffmann (“Appellant”) is an HIV-positive man who applied to work as a cabin attendant with South African Airways (“SAA”). He successfully completed the required four-stage selection process, and the required pre-employment medical examination found him to be clinically fit and suitable for employment. However, the routine blood test revealed that Appellant is HIV-positive. As a result, SAA rejected his application based on his HIV-positive status. Appellant challenged this rejection, arguing that the denial of employment based on HIV status violates the constitutionally protected rights to equality, human dignity, and fair labor practices. SAA argued that its action was based on public health concerns, stating that because Appellant was unable to receive a yellow fever vaccination due to his HIV-positive status, he posed risks to customers. SAA also argued that the short life expectancy of HIV-positive persons and the high cost of training made hiring such persons uneconomical. SAA further argued that employing an HIV-positive person would adversely impact the efﬁcient operation of the airline and the public perception of the airline’s efﬁcient operation. After the High Court dismissed the application, the Appellant appealed to the Constitutional Court.
The issue in this case is whether constitutional rights of equality and fair labor prohibit an employer from refusing to employ an HIV-positive person based on his or her HIV status.
The Court stated that medical evidence demonstrates that there are four stages to the development of HIV/AIDS, and it is only during the third stage that HIV-positive persons may pose risks to public safety. There is no evidence that when Appellant applied for the job at SAA, he had reached the third stage, and therefore posed a risk to public safety. In determining whether a discriminatory act is unfair, the Court must consider the following factors: (1) the status of the victim in society, (2) the objective of the discrimination, (3) the extent to which the victim’s interests are affected, and (4) the impact of the discrimination on the human dignity of the victim.
The Court noted that HIV-positive persons are vulnerable to societal stigmatization and marginalization. In the employment context, such treatment condemns HIV-positive persons to chronic unemployment and impoverishment, or “economic death.” The Court reasoned further that the commercial interests of SAA, while legitimate concerns, cannot justify prejudicial and stereotypical treatment. The determination of whether to employ an HIV-positive person must be based on scientiﬁc ﬁndings of the employee’s incapacity to perform the necessary work. Moreover, SAA’s refusal was inconsistent with its policies. HIV testing was mandatory only for new, but not for all, employees. The Court determined that it was therefore possible that some cabin attendants already employed by SAA were HIV positive, and yet they could satisfactorily perform their employment duties.
The Court held that SAA’s decision not to hire the Appellant based on his HIV-positive status violates the right to equality and prohibition of unfair discrimination provisions in Section 9 of the Constitution.