hide message

Welcome to the Resource Centre

We make it our mission to work with advocates in civil society, business and government to address inequalities of power, seek remedy for abuse, and ensure protection of people and planet.

Both companies and impacted communities thank us for the resources and support we provide.

This is only possible because of your support. Please make a donation today.

Thank you,
Phil Bloomer, Executive Director

Donate now hide message

South African Airways lawsuit (re HIV discrimination)

HIV/AIDS ribbonIn 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]

Get RSS feed of these results

All components of this story

Article
5 January 2009

Nigeria: HIV And Employability

Author: Kingsley Obom-Egbulem, behavioural change and communications expert, IDEA WORKS [Nigeria]

…These days, employers…require more than just what their job advertisement says: ...an obnoxious policy of testing applicants for HIV. That was the situation Dunni Adesegun…faced…when she applied to work as accountant with a prominent oil company…Adesegun's denial of employment never got to the court. Her silence…informed by three principal factors - lack of faith in the ability of Nigeria's law courts to dispense justice speedily, desire to avoid the stigma…and…insufficient evidence to challenge such discrimination in court…These fears have continually been exploited by employers…Standard Chattered Bank is…teaching other companies how to…operate a humane workplace as regards HIV/AIDS policy. In Nigeria…Nigerian Breweries, Sheraton Lagos [part of Starwood Hotels], Cadbury Nig. Plc, Unilever and Nigerite are firms showing others the way… [Also refers to NBA and South African Airways]

Read the full post here

Article
+ Español - Hide

Author: Asamblea General de la Organización de los Estados Americanos

Read the full post here

Article
+ Français - Hide

Author: l'Assemblée générale de l'Organisation des États Américains

Read the full post here

Lawsuit
5 June 2001

South African Airways lawsuit (re HIV discrimination)

Author: Business & Human Rights Resource Centre

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]

Article
28 September 2000

SA landmark HIV ruling

Author: Jane Standley, BBC News

South Africa's constitutional court has handed down a landmark ruling that an employer cannot refuse a job to a person who tests positive for HIV…The ruling follows a case in which South Africa's national airline refused to employ a cabin attendant who tested positive…Under new employment legislation, it is now illegal in South Africa to test people for HIV. But Mr Hoffman applied for his job before the law came into force…The airline now has to offer Mr Hoffman the same job for which he had applied and must pay all his costs…

Read the full post here

Article
28 September 2000

[PDF] Hoffman v South African Airways [case analysis]

Author: Equal Rights Trust

The appellant, Hoffman, was HIV positive. In September 1996 he applied for employment as a cabin attendant with South African Airways (SAA)… he was deemed 'unsuitable' due to the HIV positive test. He challenged the constitutionality of the refusal to employ him on the basis that it was unfair dismissal and violated his constitutional right to equality...and fair labour practices. The Court set out that those living with HIV, including the appellant, were a vulnerable minority treated with intense prejudice by society…The Court held that the appellant, having been denied employment solely because of his HIV status should be entitled to the fullest redress…

Read the full post here

Article
28 September 2000

[PDF] Hoffmann v South African Airways

Author: Constitutional Court of South Africa

This appeal concerns the constitutionality of South African Airways’ (SAA) practice of refusing to employ as cabin attendants people who are living with HIV…On the medical evidence, an asymptomatic HIV positive person can perform the work of a cabin attendant competently…There can be no doubt that SAA discriminated against the appellant because of his HIV status. Neither the purpose of the discrimination nor the objective medical evidence justifies such discrimination…[T]herefore, that the appropriate relief in the circumstances of this case is an order directing SAA to employ the appellant as a cabin attendant with effect from the date of the order of this Court.

Read the full post here

Article
28 September 2000

[PDF] Hoffmann v South African Airways - Explanatory Note

Author: Constitutional Court of South Africa

This appeal from the Witwatersrand High Court concerns the constitutionality of South African Airways’ practice of not employing people living with HIV as cabin attendants. That happened to Mr Hoffmann and he challenged the constitutionality of the policy in the High Court. SAA defended its policy as promoting the safety and health of its passengers…The High Court upheld SAA’s defence. In a unanimous decision…the Constitutional Court held that SAA had infringed Mr Hoffmann’s constitutional right not to be unfairly discriminated against… The Constitutional Court upheld the appeal and set aside the decision of the High Court…

Read the full post here

Article
18 August 2000

Aids law in the dock

Author: BBC News

Read the full post here