Combating workplace discrimination on the basis of HIV status through disability law in Zambia
| Author | Dumisani J Ngoma |
| DOI | http://doi.org/10.1177/13582291211043416 |
| Published date | 01 March 2022 |
| Date | 01 March 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(1) 30–55
© The Author(s) 2021
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DOI: 10.1177/13582291211043416
journals.sagepub.com/home/jdi
Combating workplace
discrimination on the basis of
HIV status through disability
law in Zambia
Dumisani J Ngoma
Abstract
Zambia has within the last two decades enacted several pieces of legislation aimed at
enhancing equality in the labour market and the workplace. However, despite being one
of the countries that has been severely devastated by the HIV/AIDS pandemic, Zambia
does not yet have specific legislation targeted at HIV-related stigma and discrimination
in the labour market and workplace. Apart from the general prohibitions against
discrimination on the basis of health or social status, it remains to be seen whether
concepts such as reasonable accommodation have a place in the fight against dis-
crimination and stigma of HIV/AIDS in the Zambian workplace. The purpose of this
article is not to argue for the enactment of HIV/AIDS specific legislation in Zambia but
to instead argue that despite the absence of such legislation, HIV/AIDS discrimination
and stigma can be addressed within the context of the Country’s existing disability
discrimination law. The arguments advanced in this article are considered largely within
the context of the Zambian High Court case of Stanley Kingaipe & Another v The
Attorney General.
Keywords
Disability, HIV/AIDS, Zambia, reasonable accommodation, medical tests for employment,
informed consent, discrimination in employment
University of Strathclyde, Glasgow, UK
Corresponding author:
Dumisani J Ngoma, School of Law, University of Strathclyde, Lord Hope Building, Level 1, 41 St James Road
Glasgow G4 0LT, UK.
Email: dumisani.ngoma@strath.ac.uk
Introduction
Zambia continues to be one of the few countries in the world that has been severely
impacted by the human immunodeficiency virus and acquired immunodeficiency
syndrome (HIV/AIDS). The Zambian workforce has remained particularly vulner-
able due to the devastating effects of the HIV/AIDS pandemic. Despite several policy
initiatives by the Zambian government to protect people living with HIV from
discrimination both in and outside the workplace, Zambia has never enacted any
specific legislation that directly addresses and prohibits discrimination based on HIV/
AIDS in the workplace. The absence of HIV/AIDS specific legislation is therefore a
recipe for discrimination of people living with HIV/AIDS (PLHIV) in the workplace,
who are arguably at the mercy of their employers as to what extent their condition can
be accommodated in the workplace. Nonetheless, the purpose of this article is not to
argue for the enactment of HIV/AIDS specific legislation in Zambia but to instead
argue that despite the absence of such legislation, HIV/AIDS discrimination should
be addressed within the context of disability discrimination law. The arguments
developed in this article are considered within the Zambian High Court case of
Stanley Kingaipe & Another v The Attorney General
1
(hereinafter referred to as
Kingaipe). This case raises several issues that are not only central when addressing
discrimination because of HIV/AIDS but are also cardinal issues to be found under
disability discrimination law. These issues include, among others, non-
discrimination in employment; informed consent; medical testing as a condition
for employment; privacy and confidentiality in the workplace; and reasonable
accommodation.
This article is divided into four parts.The first part looks at employer inquiries about
disability and health and whether the law in Zambia permits pre- or post-employment
medical or disability examinations on job applicants and employees alike. The second
part of the article discusses the issue of informed consent by drawing into the findings
of the Zambian High Court decision in Kingaipe. Thirdly, the article continues with
another cardinal issue raised in Kingaipe namely, where to draw the line between
reasonable accommodation and medical discharge on account of ill health. This part of
the article contextualises this issue within the context of HIV/AIDS in Zambia and the
Zambian workplace. In so doing, the article further makes the argumentthat HIV/AIDS
should be included within the meaning of disability so that the protections accorded to
persons with disabilities under the Persons with Disabilities Act 2012 can be extended
to people living with HIV/AIDS (PLHIV) in the workplace. Lastly, the article con-
cludesbygoingbacktotheKingaipe decision and hypothesising on the possibilities of
a different decision had the case been heard under the current disability discrimination
law framework. It should also be noted that the article also makes several references
from the legislation and case law of other jurisdictions namely UK, USA, South Africa
and Nigeria.
Ngoma 31
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