Arif Bulkan lectures in the Faculty of Law at the University of the West Indies
The following story was brought to my attention almost two years ago, involving a CARICOM national who was offered employment within a CARICOM agency, but which offer was subsequently withdrawn. The agency in question was the CARICOM Implementation Agency for Crime and Security (CARICOM IMPACS), which was established in July 2006 by the CARICOM Heads of Government and whose offices are located in Trinidad and Tobago. The candidate in question was interviewed in Jamaica in November 2008 for a position, and at the conclusion of the interview the panel offered him on the spot another, more senior post within the agency. The candidate was informed that all he needed to do was a polygraph test and a medical, and he unhesitatingly accepted the offer.
In due course the candidate completed the polygraph, and on December 1, 2008 – coincidentally World AIDS Day – he went to undergo the medical at the doctor in Port of Spain duly designated and used by CARICOM IMPACS for this purpose. There, without any prior counseling, he was informed that he was required to take an HIV test. Naturally he refused, and when he later contacted the Executive Director of CARICOM IMPACS he was informed that he had 2 choices: either take the test or withdraw his application. The candidate thereupon attempted to ascertain the rationale behind this policy, but he was met by an uncompromising stance. All that the Executive Director would say was that this policy was agreed to by the Council of CARICOM Ministers, and that it is in keeping with international best practice.
HIV screening as a precondition for gaining employment might reflect the policy of CARICOM Ministers, but it certainly is not consistent with international best practice. Quite the contrary, HIV employment screening is recognized unequivocally as being an unreasonable and purposeless exercise, rejected by most if not all intergovernmental and non-governmental organisations. For example, the International Labour Organization stipulates that ‘testing for HIV should not be carried out at the workplace except as specified in this code. It is unnecessary and imperils the human rights and dignity of workers…’
As for the circumstances in which HIV testing is sanctioned by the ILO, these cover specific situations related to hospital visits where patients present symptoms, and absolutely do not include routine or mandatory testing prior to employment. In fact, the ILO explicitly prohibits HIV screening prior to employment, stating that ‘HIV testing should not be required at the time of recruitment or as a condition of continued employment. Any routine medical testing, such as testing for fitness carried out prior to the commencement of employment or on a regular basis for workers, should not include mandatory HIV testing.’
These standards are echoed and adopted by most, if not all, international agencies and human rights bodies, including the Global Business Coalition on HIV/AIDS, the Joint United Nations Programme on HIV/AIDS (UNAIDS), and the Global Fund (the latter being, incidentally, one of the largest funders of CARICOM countries in the fight against HIV/AIDS). The reason for their adoption can be summed up in one word used by the ILO: unnecessary. First and foremost, HIV is not easily transmissible. Unless employees intend to exchange bodily fluids through unprotected sex or sharing needles, they are completely safe and can work side by side with persons living with HIV with no risk to themselves. Second, HIV does not impede productivity. HIV positive people can live for decades with no symptoms. And with the advent of anti-retroviral medication, the success rates of managing HIV have soared. Third, HIV employment screening would be notoriously ineffective and expensive. Because of the nature of the tests, there are periods when prospective candidates might test negative but who might actually have the virus. Moreover, unless employees are tested and re-tested at regular intervals, it would be impossible to ensure that any person having tested negative at the time of hiring would remain negative throughout his or her adult life. Fourth, HIV employment screening is ultimately counter-productive. It is a deeply inhumane policy, excluding a whole category of persons from the means of earning a living at precisely the time when they are or may be at their most vulnerable. This has practical implications for the wider society, as productive people are potentially forced into poverty and become a burden on family, friends and the State.
Thus HIV pre-employment screening is ineffective in that it cannot achieve the purpose of a HIV-free workforce, and it is unnecessary insofar as such a workforce is not safer or necessarily more productive. Aside from these utilitarian concerns, the government of Trinidad and Tobago adopted a comprehensive policy on HIV/AIDS in April 2008, which expressly forbids HIV employment screening. Since this is an express policy of the Trinidadian government, HIV employment screening as practiced by CARICOM IMPACS is discriminatory and in flagrant violation of the rights to equality before the law, equality of treatment from any public authority and privacy, all rights that are enshrined in the Trinidadian Constitution.
What is most incomprehensible about this policy of mandatory HIV employment screening is that it expressly contradicts the practice and policy of CARICOM itself. Indeed, an entire unit of CARICOM – the Pan Caribbean Partnership against HIV/AIDS [PANCAP] – has been set up and is devoted to the fight against this disease. PANCAP, and indeed CARICOM in general, purport to recognize that HIV employment screening contravenes international best practice. On its website PANCAP speaks to the perils of HIV-related stigma and discrimination, which is based on ignorance and fear about HIV and AIDS and is fuelled by irrational policies such as mandatory testing.
More to the point, PANCAP has received considerable funding from innumerable donor agencies, all of which expressly prohibit HIV screening as a pre-condition for employment. A short list of those donors includes the Canadian International Development Agency (CIDA), the UK Department for International Development (DFID), the European Union, German Technical Cooperation (GTZ), the ILO, the United States Agency for International Development (USAID) and the World Bank. It thus borders on the fraudulent for CARICOM countries, both individually and collectively, to draw down millions of dollars in international aid purportedly to address HIV/AIDS discrimination, and then simultaneously practice such discrimination in one of its related agencies.
In December 2008 I wrote to the Deputy Secretary General of CARICOM, informing him of this situation and requesting an investigation into the matter on the basis of discrimination and violation of CARICOM’s own stated objectives. My letter was not even acknowledged, far less acted on. Since then I followed it up with letters to others within the stigma and discrimination unit of PANCAP (yes, there is an entire unit devoted to s&d within PANCAP) as well as to representatives of the various donors resident in Guyana. But aside from perfunctory letters of acknowledgment from those donors, no follow up action was taken by them or by the PANCAP officials to whom I wrote. In fact, CARICOM IMPACS has obdurately refused to modify their practice of pre-employment screening and as a result, the hiring process in relation to the candidate came to a standstill.
Meanwhile, CARICOM through its PANCAP arm continues to receive tremendous amounts of money in order to address HIV/AIDS and combat discrimination. Its officials fly up and down the region and beyond to nice destinations like Vienna. They have high level and low level meetings. They craft nice-sounding declarations, have workshops and routinely bring people together from all over to share experiences of discrimination. Sort of like that recently released film starring Julia Roberts, ‘Eat, Pray, Love’ – though CARICOM’s version would read ‘Eat, Prey, Talk’. And right now, PANCAP is engaged in drafting model laws, to tell others that they must not discriminate on the ground of HIV. But right in its own backyard, CARICOM continues to practice HIV employment screening, and is apparently unable or unwilling to change this practice. Such obscene behaviour must surely represent the pinnacle of hypocrisy and immorality.