The Australian Defense Forces face a difficulty over the Human Rights Commission ruling last week that it unlawfully dismissed a man who was HIV-positive. The commission ruled that an employer must look only at a person’s ability to do a job. If someone’s disability meant they could not do their job then it was reasonable for an employer to end that person’s employment, but if the person could continue the job, the employer could not end the job without being found guilty of discrimination.
On its face that seems a reasonable test. Thus someone who loses both legs cannot continue in a job as a ski-ing instructor but might continue as a mathematics teacher.
But someone who is HIV-positive carries no immediate disability. Disability only arises afterwards when disease attacks the immune-deficient sufferer. The point about focusing on ability to work is important for HIV-positive people and for a range of others who suffer from diseases that have no immediate affect on their capacity to work, but have the latent probability that they will not be able to work as long or with average sick leave. If employers are allowed to discriminate against these people it will shut them out of the workforce during a productive time in their lives.
It would mean that an employer could discriminate solely on the fear _ rather than the actuality _ that the employer might face some sick pay or might invest in training only to lose an employee prematurely. Often the fear is unfounded and the disease-sufferer could work for an employer for a similar length of time with similar sick leave as many other employees.
This argument is fine in nearly all fields of work. Nowadays people in the community are aware of HIV risk and are aware of the admittedly very low risk of transmission through blood spills and can act accordingly. There is no reason why an HIV-positive person cannot join almost any workforce. Only prejudice would prevent it.
However, the ADF makes a reasonable point that the defence forces are an exception. On the battlefield (and in the training that must simulate it) it is not possible to carry the sort of protective devices used in civilian life and that an employer (the armed forces) should eliminate unnecessary risks especially when battle and training carry enough risks as it is. Of course, many defense jobs are desk jobs, but if known HIV-positive people are to be restricted it might tend to identify them.