Case SU-256/96

Mr. XX, the Plaintiff, worked for the Gun Club Corporation, the Respondent, from 16 March 1992 until 1 July 1994. On 28 April 1994, Dr. Alvaro Murra Erazo, who was working for the Respondent, administered an HIV test to the Plaintiff. After receiving a positive result, the Plaintiff was advised by Dr. Murra to resign from the Corporation. Dr. Murra later disclosed the Plaintiff’s HIV status to the Respondent. The Respondent awarded the Plaintiff paid leave for 3 consecutive pay periods and then informed him that his contract of employment had been terminated.

The Plaintiff was unable to obtain subsequent employment because the companies where he sought employment required an HIV test. Further, his termination ended his access to benefits provided by the Institute of Social Security. The Plaintiff later conciliated his labor differences with the Respondent before a Labor Court, which awarded compensation for the unjustified dismissal.

The Plaintiff filed a writ of tutela against the Respondent, Dr. Murra, and Institute of Social Security, in which he argued that his rights to dignity, to equality, to work, to health, and to social security had been violated. The judge of first instance granted the tutela. The judge of second instance revoked it. Finally, the Selection Chamber of the Constitutional Court decided to review this writ of tutela.

The Court held that the compulsory testing, disclosure of HIV status, and dismissal of the Plaintiff violated his rights to dignity, equality, work, health, and social security. It considered that the stigma and discrimination faced by PLHIV undermined the justice and human dignity that formed the basis of a State governed by law. Further, the right to equality in Article 13 of the Constitution imposed an inalienable duty on the State to grant special protection to vulnerable groups. PLHIV were therefore protected from unlawful discrimination under the Constitution.

In light of these principles, the Court held that:

1. The employer had no entitlement to know the HIV status of their current or potential employees
2. Employees were not obliged to report their condition to their employers
3. An HIV-positive employee could not be removed from his job on the basis of his HIV status, as such discrimination undermined the rights to dignity, to equality, to work, to health, and to social security.
4. Although an employer could pay compensation under a conciliation process, this did not bar the employee from seeking to enforce the essential core of his fundamental rights.

Further, the compulsory testing and dismissal of the plaintiff could not be justified by the needs of the employer, given that the Plaintiff was asymptomatic and able to carry out his job, and that his HIV infection was not transmissible through his mere proximity to other workers and therefore posed no risk to others.

Although the Plaintiff brought the writ of tutela against private persons and not the State, the Court considered the application admissible because of the Gun Club’s social solidarity duties under the Constitution and the Plaintiff’s subordinate position to the respondent. It considered that in this case, the Gun Club had manifestly failed its social solidarity duties. It also considered the cases against Dr. Murra and the Institute of Social Security admissible because of their close links with the Gun Club’s actions.

The Court therefore ordered that the Plaintiff be allowed to regain access to his employment benefits, that Dr. Murra be investigated by the medical ethics body, and that the Plaintiff be awarded damages. It noted, however, that an order of damages under the tutela system was exceptional, and was granted in this case only because it would not be practical to restore the Plaintiff to his employment given his co-workers’ knowledge of his HIV status and the potential stigma he might face.

“Therefore, the Court estimates that the dismissal motivated by the consideration that the worker is an asymptomatic carrier of the HIV virus, cannot be endorsed by the State as it undermines the rights to dignity, to equality, to work, to health and to social security. Thus, an absolute freedom to unilaterally conclude a labor relation for any motive does not exist. If this motive turns out to be harmful to fundamental rights, it constitutes an unlawful act and not a juridical situation that may be recognized as legal.” Translation page 11.

“The Court does not recognize the re-instatement of the Plaintiff to his former employment as adequate restitution of his unrecognized rights because such a request has not been formulated by the Plaintiff, and secondly, the reinstatement of the worker in his previous job will not compensate the damage done to his dignity. On the contrary, the knowledge of his medical situation by his employers and colleagues may turn into a situation that could be rather risky for his own rights.” Translation page 15.