Hoffmann v South African Airways

In September 1996 the appellant, Jacques Charl Hoffmann, applied for a position as a cabin attendant with South African Airways (SAA). He successfully completed all four stages of SAA’s selection process and was identified as one of twelve suitable candidates out of 173 applicants, subject to a pre-employment medical examination. The medical examination found him clinically fit, but an HIV test revealed he was HIV positive. SAA altered his medical report to read “unsuitable” and refused to employ him solely because of his HIV status. SAA justified its blanket policy of excluding all HIV-positive persons from cabin crew positions on medical, safety and operational grounds, including alleged inability to receive yellow fever vaccination, susceptibility to opportunistic infections, risk to passengers, short life expectancy and training costs. The High Court dismissed Hoffmann’s challenge, finding the policy was an inherent requirement of the job and justified. The Constitutional Court granted him leave to appeal directly. On appeal, comprehensive medical evidence, including that of SAA’s own expert, established that an asymptomatic, immunocompetent HIV-positive person could perform the duties of a cabin attendant and that only persons whose CD4+ count had dropped below certain levels faced the risks asserted by SAA. At the time of the appeal, Hoffmann was asymptomatic with a CD4+ count of 469 cells per microlitre.

• Whether SAA’s blanket refusal to employ HIV-positive persons as cabin attendants constitutes unfair discrimination in terms of section 9 of the Constitution
• Whether the refusal violated the appellant’s rights to human dignity (section 10) and fair labour practices (section 23)
• Whether the discrimination, if established, is justifiable
• Whether the Constitutional Court should rule on SAA’s ‘true policy’ of testing to determine suitability for employment
• What is the appropriate remedy in circumstances of unconstitutional unfair discrimination in employment

The appeal was upheld, the High Court order was set aside, and SAA’s decision not to employ Mr Hoffmann was set aside. SAA was ordered forthwith to offer employment to Mr Hoffmann as a cabin attendant (the offer to lapse if not accepted within 30 days). SAA was ordered to pay the appellant’s costs in the High Court and in the Constitutional Court, including costs consequent upon the employment of two counsel, subject to a limitation on out-of-town counsel’s costs to actual out-of-pocket expenses.

A blanket refusal to employ a person solely because he or she is living with HIV constitutes unfair discrimination under section 9 of the Constitution where the person is asymptomatic, immunocompetent and medically able to perform the inherent requirements of the job. An employer, particularly an organ of state, may not rely on prejudice, stereotyping or unsubstantiated assumptions about HIV to exclude individuals from employment; any exclusion must be justified by individualised, reasoned and medically sound evidence. Instatement is the appropriate remedy for unconstitutional unfair discrimination in employment because it places the aggrieved person in the position he or she would have been in but for the discrimination, eliminates the effects of the wrong, deters future violations and vindicates constitutional values.

Observations regarding the deep prejudice and stigmatisation faced by people living with HIV/AIDS and the corresponding need for compassion, ubuntu and constitutional protection against marginalisation. Comments that the rationality enquiry under the Harksen v Lane equality test may be unnecessary in cases where unfair discrimination is clearly established. Observations that the Labour Court, as a specialist tribunal under the Employment Equity Act, is the appropriate forum to deal with HIV testing to determine suitability for employment in the first instance, and that the Constitutional Court would decline to rule on a policy not raised in the High Court. General remarks that commercial requirements and the policies of foreign competitors cannot override constitutional rights, and that prejudice must never justify unfair discrimination. Observations that an amicus curiae is neither a winner nor a loser and is generally not entitled to costs.

This is a landmark decision of the Constitutional Court on HIV/AIDS-related discrimination in the workplace. It affirmed that people living with HIV are a vulnerable group entitled to heightened constitutional protection and that discrimination against them on the basis of their status alone is unfair and unconstitutional. The judgment rejected blanket employment exclusions based on prejudice, stereotyping or unfounded assumptions, insisting instead on individualised, medically sound assessments. It reinforced that commercial interests and public perception cannot justify unfair discrimination. The decision also established that instatement is the primary and appropriate remedy for unconstitutional unfair discrimination in employment, serving to vindicate constitutional rights, deter future discrimination and restore equality. The Court’s emphasis on ubuntu, dignity and compassion has shaped subsequent jurisprudence on equality and the rights of people living with HIV/AIDS in South Africa.