Combating Workplace Discrimination against PLWHAs

Losing a job – or never getting one – simply because of a medical diagnosis is a violation of basic human dignity. Yet for millions of Persons Living with HIV/AIDS (PLWHAs) in India, this has been a lived reality. From being quietly removed from selection panels to having compassionate employment denied to surviving family members, workplace discrimination based on HIV status continues to persist, even as courts have repeatedly and clearly ruled against it. Understanding how Indian law protects PLWHAs at the workplace – and where those protections still fall short – is essential for any student of law engaging with the rights of vulnerable groups.

The reality of HIV-related discrimination at work 🔗

Workplace discrimination against PLWHAs does not always look like an outright termination letter. Discrimination is often subtler – HIV-positive employees may be gradually demoted, kept on payrolls but asked not to report to the workplace, or denied benefits like provident fund and gratuity even after death. Employers routinely claim ignorance of the issue, but studies have shown that many companies terminate HIV-positive employees as a matter of course while simultaneously denying the existence of the problem altogether.

The stigma runs deep. The worst kind of discrimination faced by PLWHAs has historically been in the area of employment, and this epidemic knows no borders of geography, class, caste, gender, or sexuality. While this is a public health issue, it is equally – and critically – a human rights issue. Employment is not just income; it is dignity, identity, and survival.

Constitutional foundations: Articles 14, 16, and 21 🔗

Before a dedicated HIV law existed, Indian courts had to draw on the Constitution itself to protect PLWHAs in employment disputes. Three provisions became the backbone of this jurisprudence. Article 14 guarantees equality before the law and prohibits arbitrary state action. Article 16 specifically prohibits discrimination in public employment. Article 21, the right to life and personal liberty, has been expansively interpreted by courts to include the right to livelihood.

Articles 14 and 16 of the Constitution guarantee the right to equality and provide protection against discrimination in employment – however, these rights are available against the State and not against private employers. This distinction is legally significant and remains one of the most important gaps in India’s anti-discrimination framework for PLWHAs, a point we return to below.

Landmark judgments that shaped employment rights 🔗

MX of Bombay v. M/s ZY and Anr (AIR 1997 Bom 406) 🔗

This is the foundational case in Indian HIV jurisprudence on employment. The petitioner, MX, was a casual labourer working for a state-owned corporation. Before his employment could be regularised, the employer required him to undergo medical tests, which revealed he was HIV positive. Despite being otherwise fit, his employment was immediately terminated on the ground that he was no longer “medically fit” for the post.

The Bombay High Court’s ruling was groundbreaking. The court held that persons living with HIV could perform “normal job functions” while living with the disease, and that the probability of transmission of the virus at the workplace was low. It further held that the right to livelihood was included within Article 21, and that this right to life for a workman includes the right to be in employment that is not at the mercy of the employer.

The court also adopted an important “individualised inquiry” standard. This inquiry required consideration of the nature of the risk of transmission, the duration of the risk, the severity of the risk, and the probabilities that the disease would be transmitted and cause harm. A blanket exclusion of all HIV-positive persons from employment, without this individualised assessment, was held to be arbitrary and unconstitutional. The court also allowed the petitioner to conceal his identity during proceedings – a recognition that disclosure itself could cause irreparable harm.

G v. New India Assurance Co. Ltd (2004) 🔗

This case extended the protections of the MX ruling to compassionate appointment. The petitioner was the wife of an employee who had died while employed at New India Assurance Company. When she applied for compassionate employment, she was rejected after testing HIV positive. The Bombay High Court reiterated what had already been settled: an HIV-positive status cannot be a ground for rejection for employment, as it would be discriminatory and violative of Articles 14, 16, and 21 of the Constitution.

Mr. X v. Chairman, State Level Police Recruitment Board and Ors (2005) 🔗

The Andhra Pradesh High Court extended protections into the police recruitment context. The petitioner had passed both the physical test and the written exam but was denied training after testing HIV positive. The Court held that only because a person has tested HIV positive does not mean the person is terminally ill or will be soon, and that a PLWHA may live a healthy life for up to 18 years, which could be further extended through effective antiretroviral therapy. The Court struck down the relevant disqualification order as a violation of Article 21, directing that strict medical evidence – and not blanket policy – must govern employment fitness assessments.

Balbir Kaur v. Steel Authority of India Ltd 🔗

In this case, the High Court addressed the obligations of a public sector employer toward a deceased HIV-positive employee’s family. The court observed that the socialistic pattern of society as envisaged in the Constitution must be given its full meaning, and that law courts cannot be mute spectators where relief is denied to the horrendous sufferings of an employee’s family on account of the death of the breadwinner. The respondent company was directed to appoint the petitioner on compassionate grounds and grant her all consequential benefits.

The HIV and AIDS (Prevention and Control) Act, 2017 🔗

Decades of judicial activism finally found legislative backing with the enactment of the HIV and AIDS (Prevention and Control) Act, 2017, which came into force on 10 September 2018. India is among the first few countries to enact legislation protecting PLWHAs against discrimination and safeguarding their rights, with the Act introducing robust measures to eradicate stigma and discrimination.

In the employment context specifically, the Act made several transformative changes:

Prohibition of HIV testing as a pre-condition for employment. The Act prohibits HIV testing as a pre-requisite for obtaining employment, and has introduced the concept of informed consent, which must be obtained from a protected person undergoing any HIV test or treatment.

Anti-discrimination obligations on establishments. Discrimination in hiring, promotion, training, or termination based on an employee’s HIV status is strictly prohibited. HIV-positive employees are entitled to the same access to health insurance, medical, and wellness programmes as any other employee.

Strict confidentiality. An employer or any other employee at the workplace who becomes aware of a colleague’s HIV-positive status cannot disclose this to any third parties without the prior written consent of the HIV-positive employee. Unauthorised disclosure can attract a fine of up to one lakh rupees.

Coverage of private sector establishments. The Act is generally progressive in being one of the few legislations that acknowledges and redresses discrimination by private individuals in employment, housing, education, medical care, and insurance. This is significant because constitutional protections under Articles 14 and 16 were previously limited to state action.

Grievance redressal: complaints officers and ombudsmen 🔗

The Act does not merely declare rights – it creates institutional machinery to enforce them. The Act provides for a robust grievance redressal mechanism in the form of an Ombudsman at the state level and a Complaints Officer at the establishment level, aiming to provide speedy redressal.

Every establishment consisting of 100 or more persons, or healthcare establishments with 20 or more persons, is required to appoint a Complaints Officer for redressal of grievances arising from violations of the statute within the establishment. The ombudsman, appointed at the state government level, handles complaints of discrimination and must pass an order within 30 days of receiving a complaint. In medical emergencies, this timeline is compressed to just 24 hours.

Recent case law shows how this mechanism is beginning to work in practice. In Sabhajeet Yadav v. State of Uttar Pradesh, an employee at a private workplace was served a show-cause notice and subsequently terminated, despite having submitted records relating to his HIV-related health concerns as an explanation for his absence. The Allahabad High Court directed the State Legal Services Authority to assist the employee in instituting a complaint with the local ombudsman to seek relief from discrimination as well as compensation.

The persistent challenge: the private sector gap 🔗

Despite the progress made by both courts and legislation, significant challenges remain – particularly in the private sector. Before the 2017 Act, there was no specific employment law that provided protection from discrimination to PLWHAs, and Articles 14 and 16 were available only against the State, leaving little that could be done within the legal regime to prevent discrimination by private employers.

Even after the Act, implementation remains uneven. Many private employers are unaware of their obligations. Complaints officers are not always appointed. Ombudsmen across states vary in training and effectiveness. The Act does not, and arguably cannot, holistically address the problems faced by PLWHAs, and these constraints are a crucial reminder of the larger limitation of law as a blunt policy tool unable to comprehensively address complex socio-legal issues.

The ILO, in its HIV and AIDS Recommendation No. 200 (2010), has recognised that even where legal frameworks exist, their success depends on strong, independent judicial institutions and labour administrations that actively participate in the development and implementation of national workplace policies on HIV. India’s challenge is precisely this – bridging the gap between the letter of the law and its lived reality on the factory floor and in the corporate office.

What employers are required to do 🔗

Under the Act, employer obligations go beyond simply not discriminating. Establishments that appoint a Complaints Officer are required to arrange workshops and awareness programmes annually to make employees aware of the provisions of the Act, provide orientation programmes for the Complaints Officer, and make available such information as the Complaints Officer may require in deciding complaints.

Additionally, employers must maintain non-discrimination clauses, confidentiality measures, awareness programmes, access to healthcare and counseling, and grievance redressal mechanisms as part of their workplace HIV/AIDS policy. The National AIDS Control Organisation (NACO) has also issued a model HIV and AIDS Policy for Establishments, providing a template that companies can adopt.

Failure to comply is not without consequence. A person convicted of discriminatory conduct under Section 4 of the Act faces imprisonment of not less than three months and up to two years, and/or a fine of up to one lakh rupees.

The road ahead: why a comprehensive anti-discrimination law matters 🔗

The judicial record on HIV-related employment discrimination in India is, on balance, a story of progressive constitutional interpretation. Courts have consistently held that an HIV-positive person who is otherwise fit to work cannot be denied employment. The 2017 Act has codified much of this jurisprudence and extended it to the private sector. Yet, awareness and enforcement remain the weakest links in the chain.

What India still lacks is the kind of comprehensive, standalone anti-discrimination legislation that covers all grounds of identity – HIV status included – with robust enforcement, accessible remedies, and proactive state obligations. Countries like South Africa, as referenced in multiple Indian court judgments, have used their constitutional and statutory frameworks to deliver stronger protections. UNDP India, in partnership with state AIDS control societies and legal aid bodies, has initiated dedicated legal aid clinics to enable PLWHAs and key populations to access services, raise awareness, and provide linkages for legal aid – but systemic change requires more than clinics. It requires cultural transformation in how workplaces think about health, vulnerability, and dignity.

What do you think? Given that constitutional protections under Articles 14 and 16 apply only against the State, do you think the HIV and AIDS (Prevention and Control) Act, 2017 goes far enough in protecting PLWHAs employed in the private sector? And beyond legal obligations, what role should employers proactively play in dismantling HIV-related stigma in the workplace?

References

1. https://naco.gov.in/hiv-aids-p-c-act-2017
2. https://www.ilo.org/media/437311/download
3. https://naco.gov.in