YOUTH EMPLOYMENT SUMMIT

PRESENTER:

ANAND GROVER

PROJECT DIRECTOR

LAWYERS COLLECTIVE HIV/AIDS UNIT (LCHA), INDIA

7/10 Botawalla Building, 1st Floor, 63/2 Masjid Road,

Horniman Circle, Fort, Jangpura,

Mumbai - 400 023 New Delhi - 110 014

INDIA INDIA

aidslaw@vsnl.com aidslaw1@del2.vsnl.net.in

91-22-267 6213 / 19 91-11-432 1101 / 02

YOUTH EMPLOYMENT

HIV/ AIDS Scenario in India: •Prevalence rate:Estimate for year 2001- 3.97 million, 2002 - 4 million. (NACO)•Young people affected with HIV/AIDS: 2001 - 3.31 million in the age group 15 - 49 years. (NACO)•Same in other countries and internationally.

HIV/AIDS AFFECTS THE YOUTH.

YOUTH EMPLOYMENTIn our work at LCHA we have seen that young people - in the age group of 18 - 40 face problems relating to discrimination in employment, termination of services, insistence on resignation from the employers, or require alternate accommodation due to their inability to do heavy and strenuous jobs. Young people have died, leaving behind their families in complete dependency and poverty.

There is reluctance among employers to keep or continue the services of HIV positive employees, or employ widows of employees on compassionate grounds - arising out of their own ignorance and fears.

•Case Study (May 1998 - May 2001), Mumbai–Number of Advice cases - 130

–Number of cases litigated - 45•May 1998 - May 1999: 22; May 1999 -May 2000: 13; May 2000 - May 2001: 10

CASE STUDY (May 1998 - May 2001), MUMBAI

AGE-WISE BREAKUP

0

5

10

15

20

25

30

35

40

45

Nu

mb

er

of

Clie

nts

Male

Female

Transgender

Male 2 11 33 6 1 4

Female 0 41 16 5 2 3

Transgender 0 6 0 0 0 0

0-17 18-30 31-40 41-50 51 & above Unknown

LCHA CASE STUDY (May 1998 - May 2001), Mumbai

EMPLOYMENT STATUS

0

10

20

30

40

50

60

Nu

mb

er

of

Clie

nts

Male

Female

Transgender

Male 4 49 4

Female 40 26 1

Transgender 0 6 0

Unemployed Employed Unknown

LCHA CASE STUDY (May 1998 - May 2001), Mumbai

EMPLOYMENT ISSUES

9

5

2

3

0

3

1

0

6

5

0

1

0 0

1

3

1

0 0

1 1

10

0

2

4

6

8

10

12

Male

Female

EMPLOYMENT ISSUES ARISING

•Testing in the pre-recruitment stage• breach of confidentiality

• Discrimination =denial in employment•Testing in post-recruitment stage• breach of confidentiality• Discriminatory practices at the workplace = termination of employment

WHY LAW IN HIV

Jonathan Mann the GPA asked why HIV is spreading. He found

In the beginning HIV was found that HIV was amongst Male, White, Upper Class, Homosexual

Now predominately amongst Female Black or Hispanic, Poor and Heterosexual

These groups are vulnerable on various accounts, including rights (disempowered)

WHY LAW IN HIV

Now fairly well established that to prevent HIV transmission paradoxically you have to protect and promote the rights of those vulnerable and HIV

In Sonagachi in India HIV transmission has been kept low amongst sex workers by protecting their rights

EMPLOYMENT - GENERAL PRINCIPLES

If the HIV positive person is medically fit for the job (a) s/he is also otherwise qualified for the job;(b)s/he does not pose a substantial risk to other persons in employment or the property of the employer;S/he cannot be denied recruitment / terminated from the job only because of her/ his HIV positive status.Individualized enquiry required for each case(MX v. ZY, AIR 1997 Bombay 406)MX followed School Board of Nassau County v. Arline, 480 US 272 (1986)MX followed in(Jacques Charles Hoffmann v. South African Airways, CCT 17/00, South Africa [2000])

EMPLOYMENT

ALTERNATE EMPLOYMENT

It has also been held that an otherwise qualified handicapped individual who cannot be provided in his/her original job must be reasonably accommodated in an alternative job if s/he does not pose an undue financial or administrative burden on the employer.

(School Board of Nassau County, Florida v. Arline) - a US Supreme Court case involving a school teacher with non-contagious TB

SUPPRESSION OF IDENTITY

• Suppression of identity, whereby a person can litigate under a pseudonym, is a beneficent litigation strategy, long established in the area of family law

• in the context of HIV/AIDS, using suppression of identity PLWHA can now seek justice without the fear of their HIV status becoming public knowledge– e.g.: MX v. ZY, AIR 1997 Bombay 406

PUBLIC / PRIVATE SECTOR• Most countries that have Constitutions prohibit

discrimination in the public sector in the Constitution itself.

• Discrimination in the private sector is prohibited by statutes.

• For e.g.: United States of America– Federal Laws

• Americans with Disabilities Act of 1990 protects people with disabilities from discrimination in both the private and public sectors.

• The Rehabilitation Act of 1973 prohibits discrimination in federally funded programs.

– State Laws - expand upon the federal laws

– City Anti-discrimination ordinances