October 21, 2013
The Strasbourg Court has recently delivered its first judgment on the topic of HIV-based employment discrimination. I.B. v. Greece (judgment in French!) concerns a man who is HIV-positive and who was fired from his job, because his employer wished to keep the company running smoothly. What happened was that a group of I.B.’s co-workers, finding out about his HIV diagnosis, had called for his dismissal because they were afraid of contagion.
Although much of the legal reasoning in this judgment is familiar (notably from the landmark case of Kiyutin v. Russia), this ruling is notable for the strong message the Court sends about the harms of HIV-based stigma and discrimination. In this post I will highlight what are to my mind the most noteworthy aspects of this judgment, namely that the Court applies a social model of disability and that it uses the concept of vulnerable groups to narrow the margin of appreciation. The drawback of this judgment, I conclude, is that it does not give much support to HIV-positive people requiring some form of accomodation from their employer.
The applicant, I.B., worked in a company that made jewelry. The company employed around 70 people. One day, in January 2005, he confided to three of his colleagues that he was afraid he had contracted HIV. These three colleagues wrote a letter to the director, (erroneously) alleging that I.B. had AIDS and asking for his dismissal. Information about I.B.’s health began to circulate around the company. I.B. recounts that he was immediately stigmatized by his co-workers and that he was treated like a pariah who did not have the right to work (par. 59). On 10 February I.B. tested positive for HIV (Memphis, TN STD test centers program). The employer invited an occupational health doctor to come speak to the employees, to reassure them about the (non-existent) risk to their own health. Nonetheless, 33 of his co-workers (around half of the company’s employees) later send a letter to the director demanding I.B.s dismissal “to safeguard their health and their right to work” (par. 10). Two days later, I.B. was fired to preserve the good working relations within the company.
The first court held that the dismissal was illegal. The court of appeal also held that the dismissal was illegal, adding that the employer had given in to the pressure from the employees and that their fears were scientifically unfounded. The Court of Cassation quashed that judgment, however, holding that termination was justified in the interests of the employer to ensure the company’s smooth functioning and harmonious relations. Subsequently, I.B. complained to the Strasbourg Court that his dismissal violated his right to private life (art. 8 ECHR) in conjunction with the prohibition of discrimination (art. 14 ECHR).
Social model of disability
The I.B. v. Greece judgment does not contain major innovations in the Court’s Article 14 analysis. There are a few things that stand out in the Court’s reasoning, however. In the first place, the Court explicitly adopts the social model approach to HIV and disability rather than the medical model. In line with the social model, the Court regards the barriers that people with HIV face as social in nature rather than primarily medical in nature. The Court emphasizes this point both in its analysis of the scope of Article 8 and its analysis of the limitation clause of that article. Starting with the first, the Court has no hesitation in finding that the facts of this case fall under the scope of the right to private life:
Il ne saurait en être autrement, l’épidémie de VIH ne pouvant pas être considérée seulement comme un problème médical, ses effets se faisant sentir dans toutes les sphères de la vie privée. . . . Il est clair que le licenciement du requérant a abouti à stigmatiser une personne qui, même si elle était porteuse du VIH, n’avait manifesté aucun symptôme de la maladie. Cette mesure ne pouvait qu’avoir des répercussions graves sur sa personnalité, sur le respect qu’on pouvait lui témoigner et, en fin de compte, sur sa vie privée. A cela s’ajoute l’incertitude liée à la recherche d’un nouvel emploi (par. 70 & 72).
And again when the Court analyzes the limitation clause of Article 8, it emphasizes that the problems that people living with HIV face are not only medical in nature, but that they have to cope with deeply rooted prejudice:
Les personnes porteuses du VIH sont obligées de faire face à de multiples problèmes, de type non seulement médical, mais aussi professionnel, social, personnel et psychologique et surtout à des préjugés parfois enracinés même parmi les personnes les plus instruites. (par. 80)
These are some of the strongest passages in the judgment. What is more, the Court’s approach is completely in line with the UN Convention on the Rights of Persons with Disabilities (CRPD), which states in its preamble that “disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”. What surprises me a little, therefore, is that the Strasbourg Court does not mention the CRPD (it only mentions materials from the International Labor Organization (ILO) and the Committee on Economic, Social and Cultural Rights in par. 84).
Narrow margin of appreciation: vulnerable groups reasoning
As I already said, much of the reasoning in this case is based on the judgment of Kiyutin v. Russia (2011). Kiyutin concerned a man who did not obtain a residence permit from the Russian authorities because he was HIV positive (see blog post with analysis here). In Kiyutin the Court used a group vulnerability argument to narrow the margin of appreciation of the State. It held that:
people living with HIV are a vulnerable group with a history of prejudice and stigmatisation and that the State should be afforded only a narrow margin of appreciation in choosing measures that single out this group for differential treatment on the basis of their HIV status. (Kiyutin par. 64).
In a forthcoming article, Lourdes Peroni and I extensively analyze this type of reasoning. Our conclusion is that, though arguments of group vulnerability have their drawbacks, all-in-all the emergence of this concept in the Court’s jurisprudence is welcome, as it signals a move towards a more substantive conception of equality. Be that as it may, in I.B. the Court extensively refers to this reasoning from Kiyutin (see paragraphs 79-81).
What distinguishes I.B. from Kiyutin is that I.B. originally concerned a dispute between private persons (an employee and an employer from the private sector), rather than a dispute between an individual and the state. How does the Greek Government enter the picture here then? The Strasbourg Court holds Greece responsible for discrimination because the Greek Supreme Court had gone along with the erroneous and prejudice-based argument of the group of co-workers that had called for I.B.’s dismissal:
elle a cependant fondé sa décision, pour justifier les craintes des salariés, sur une prémisse manifestement inexacte, à savoir le caractère « contagieux » de la maladie du requérant. (par. 88)
Thus the ECtHR comes to the conclusion that the Supreme Court did not perform the proportionality analysis adequately; the Supreme Court did not properly explain why the interests of the employer outweighed those of the employee (par. 90).
I think we can conclude from this that, in a case concerning the dismissal of an HIV-positive person, an employer cannot invoke the argument of a legitimate business interest, when that interest is based on the prejudices of the other employees.
Drawback? Not much support here for people requiring reasonable accommodation
To wrap up this discussion of the I.B. case, I wish to briefly reflect on what is in my opinion the judgment’s weakness: the legal reasoning in this case does not provide much support for cases that concern questions of accommodation. This case is really all about a negative interference with the applicant’s private life. The Strasbourg Court refers extensively to the domestic Court of Appeal (par. 86 and 87) which had emphasized that the applicant’s health status had in no way diminished his work capacity. But what if it had? What if the applicant had been required to take some time of work to deal with his health, or what if he had become somewhat less efficient in his job? Could his dismissal not raise a discrimination issue then? According to the definition of the UN Disability Convention, “denial of reasonable accommodation” is also “discrimination on the basis of disability” (art. 2 CRPD). Similarly, the ILO Recommendation to which the Strasbourg Court refers, states: “Persons with HIV-related illness should not be denied the possibility of continuing to carry out their work, with reasonable accommodation if necessary, for as long as they are medically fit to do so.” (art. 13). I.B. v. Greece is a good first ECtHR judgment in the area of HIV-based employment discrimination, but I hope and expect that this will not be the Court’s definitive say in the matter.