Glenda Daniels The Department of Labour has slammed employers for using “racist assumptions” as excuses not to hire black people and to test prospective employees for HIV/Aids. In the latest Department of Labour equity report, 31% of employers cited HIV/Aids as a barrier to implementing equity. The equity legislation was formulated by the government to redress past inequalities and is aimed at the employment, training and promotion of people from formerly disadvantaged grouping such as blacks, women, disabled and gay people. Workplace analysts say employers assume black people, especially young black men, are very likely to be HIV-positive and therefore are not good candidates for employment or promotion. According to Workplace Equity, a consultancy group, underhand HIV testing of employees has become rife and part of the problem is that workers don’t know their rights. According to an analysis of more than 150 companies by Global Business Solutions, released in March, 108264 employees and 31% of companies said HIV is a barrier to employment or advancement in the workplace. An HIV-in-the-workplace analyst from Workplace Equity said: “Employers are doing tuberculosis tests, saliva tests, which could show up thrush which is often a symptom of HIV as well as urine testing. And some employers are even doing chest X-rays to check for infections, which might indicate HIV. “In fact, when people have greater sick leave cycles some employers take that as a sign of an employee being HIV-positive. They make the connection and conclude that there will be no promotion or advancement. “There is also the perception of why employ a person who is HIV-positive and put in an investment in resources and training when you don’t get much back. Employers are getting away with this because there is a lack of awareness among workers about their rights.” Director General of the Department of Labour Rams Ramashia says employers have to stop their “basically racist assumptions”. The Employment Equity Act prohibits testing for HIV unless the Labour Court has given prior authorisation. To date, no employer has approached the court. In December last year the department issued a code of good practice on key aspects of the management of HIV/Aids in the workplace. It stipulates that an employer may approach the Labour Court in the case of testing during an application for a job, as a condition of employment, or as an eligibility requirement for training. However, it also stresses that an employer may provide testing where an employee has requested a test as part of health care service in the workplace, in the event of an occupational accident carrying a risk of exposure to blood or other fluids and for the purpose of applying for compensation following an occupational accident. But underhand testing is unacceptable and illegal, Ramashia says. If an employee’s rights are violated in such a way, he or she can refer such a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). If the CCMA does not resolve the dispute, the matter can be taken to the Labour Court. Ramashia says racist assumptions are rampant among employers. “Employers who do not like the Equity Act will cite many obstacles. The argu-ment I have heard goes as follows: ‘The high incidence of HIV/Aids means that there are less people from designated groups available to fill positions.’ “This argument is basically racist. It assumes that most people with HIV/Aids are blacks. How do they know people are HIV or not? They are not supposed to test. They are making racist assumptions.” Mark Heywood, head of the Aids Law Project, says: “It is totally unlawful what is happening. It’s a criminal act to test and is tantamount to assault. We have sued for this and one doctor had to pay out R20 000 to one of our clients for testing without permission.” He warns that “any doctor or nurse who does this risks being struck off the list as a practitioner”. Blanket exclusion of people with HIV is unjustified because being positive does not tell you everything. You can work for many years before you get full-blown Aids, Heywood says. He says he has no doubt that there is enormous racial prejudice going on. “A separation of groups is taking place. Older women, for instance, are getting employed because they are seen as low risk, and black young men and gay people are viewed as high risk.”