The Federal Labour Court has also classified asymptomatic HIV infection as a disability - and thus provides HIV-positive people with special protection under labour law. From Axel Schock
"What now, disabled?" This is what some people will have thought last December when headlines such as "HIV infection is a disability" appeared following a ruling by the Federal Labour Court. According to the judges, are HIV-positive people all but in a wheelchair? And how do interest groups such as the Lesbian and Gay Federation (LSVD) and the German AIDS service organisation Deutsche AIDS-Hilfe come to euphorically welcome such a ruling?
If you take a closer look at the judgement, it becomes clear that a groundbreaking judicial decision was actually made in Erfurt. One that by no means collectively declares asymptomatic HIV-positive people to be seriously ill and permanently in need of help, but rather provides significantly greater protection in working life.
The term "disability" does not only refer to physical, mental or psychological impairments. A chronic illness, whether curable or incurable, can also be a disability if it impairs participation in society - as well as in working life. This is how disability is understood in the General Equal Treatment Act and also in the UN Convention on the Rights of Persons with Disabilities. And not as a "severe disability" as many people mistakenly believe.
"People infected with HIV in Germany have been waiting a long time for this decision," said Christine Lüders, Head of the Federal Anti-Discrimination Agency, expressing her delight at the ruling.
Time and again, cases have been reported in which HIV-positive people have lost their jobs due to their infection or were not even shortlisted during the application process - even though there is no risk of infection for colleagues or customers in the workplace if the prescribed general hygiene and protective measures are observed.
In the specific case heard by the Federal Labour Court in Erfurt, a chemical-technical assistant was dismissed without notice and banned from the company during his probationary period after he disclosed his HIV infection during a company medical examination. For the pharmaceutical company, it seemed impossible that the man could have been employed as planned in the quality testing of medicines due to his HIV status.
Both the Labour court as well as the Regional Labour Court the organisations of Deutsche AIDS-Hilfe and the Office for the realisation of equal treatment e.V. dismissed the action supported by the court.
The Federal Labour Court has now issued a landmark ruling that grants HIV-positive people greater legal protection. The judges in Erfurt stated unequivocally that people with HIV are subject to discrimination in the workplace and therefore require special state and judicial protection. For this reason, the burden of proof now falls to the employer in the event of reasonable suspicion in order to exonerate themselves from the accusation of discrimination.
He must therefore provide other valid reasons for dismissal or non-employment if it was not the HIV infection. Generalised sham arguments such as the possibility of infection are not sufficient. If, for example, there is obviously a temporal connection between the HIV infection becoming known and the dismissal, people with HIV now have the opportunity to have this checked and this could put an employer in need of an explanation.
But even if the HIV infection is problematic in the specific job, the employer must first check whether reasonable precautions could still be taken to enable employment. So much for the court. But what should that be? One thing is certain: Regardless of whether it is a job on an assembly line, on a construction site or in an office - employers are not allowed to fire or reject someone simply because of their HIV infection. The fact that the Federal Labour Court counts people with HIV (in terms of social law) as disabled people is therefore indeed an important milestone in legislation - and will certainly help to ensure that HIV-positive people are no longer hindered in their professional lives by overcautious or intolerant HR managers.
It is still unclear what further-reaching consequences the ruling will have in the area of labour and social law. magazin-hiv, the online magazine of Deutsche AIDS-Hilfe, will report on this in due course.
