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South African Airways lawsuit (re HIV discrimination)

Author: Business & Human Rights Resource Centre, Published on: 5 June 2001

In 2000, Jacques Hoffmann, a prospective employee of South African Airways (SAA), filed a lawsuit in the Witwatersrand High Court, South Africa, against SAA, a subsidiary of the state-owned Transnet Corporation.  Hoffmann alleged that SAA’s employment practices were unconstitutional.  He had been refused employment as an airline cabin attendant after compulsory medical examinations found him HIV-positive.  The plaintiff argued that SAA’s refusal to employ him violated his constitutional right to equality, human dignity and fair labour practices. 

SAA argued that its employment policy required SAA to exclude from employment as cabin attendants all persons who are found to be HIV-positive.  SAA maintained that in the course of employment, cabin attendants must be vaccinated against yellow fever; and that HIV-positive people may react negatively to this vaccine and may not take it.  Thus, the company argued, they could contract yellow fever and other opportunistic diseases, which could later be transmitted to others.  The company also argued that the life expectancy of people who are HIV-positive was too short to warrant the costs of training them.  Finally, SAA underlined that other major airlines employed similar practices.

The High Court dismissed the lawsuit, finding that SAA’s employment practice was based on considerations of medical necessity, safety and operational procedure.  It also ruled that if SAA was compelled to hire people living with HIV as cabin attendants it would be seriously disadvantaged against its competitors.

Mr. Hoffmann appealed the decision before the Constitutional Court of South Africa on 18 August 2000.  On appeal, it was a thorough insight into the medical evidence that changed the course of the arguments.  SAA was confronted by a consensus among all medical experts, including those that it had instructed, on the nature of HIV, including the ability of HIV-positive people to be vaccinated against yellow fever.  SAA then conceded that its employment practice was unfair.  Justice Ngcobo ruled that SAA had infringed plaintiff’s constitutional rights not to be unfairly discriminated against.  He underlined that only HIV-positive people who are at the immunosuppressed stage pose those risks alleged by the company.  The plaintiff was not immunosuppressed, either at the time he applied for the position of cabin attendant or when he brought the suit.  The judgment held that, while legitimate commercial requirements are important, they cannot serve to disguise stereotyping and prejudice.  It also held that people with HIV, as one of the most disadvantaged groups in society, deserve special protection from the law.  The Supreme Court ordered SAA to make an offer of employment immediately to the plaintiff and to pay his legal costs.

SA landmark HIV ruling, BBC News, 28 Sep 2000
- Aids law in the dock, BBC News, 18 Aug 2000

- Equal Rights Trust: [PDF] Hoffman v South African Airways [case analysis]

- [PDF] Hoffmann v South African Airways, Judgment, Constitutional Court of South Africa, 28 Sep 2000
- [PDF]
Hoffmann v South African Airways - Explanatory Note, Constitutional Court of South Africa, 28 Sep 2000 [non-binding explanation of case prepared by court for the media]

Related companies: South African Airways