HIV and Discrimination

What is HIV-related discrimination?

HIV-related discrimination is treating someone living with HIV differently, or less favourably, than someone who is not living with HIV or whose HIV status is unknown.

Examples:

  • A person living with HIV being refused a service from a healthcare provider or another service provider.
  • A person living with HIV being refused a job, or a travel or educational opportunity, because that person is living with HIV.
  • Ostracizing or deliberately isolating a person living with HIV.
  • Refusing to engage socially or casually with a person living with HIV.
The Law in Ireland

In Ireland, under the Employment Equality Acts 1998-2015 and the Equal Status Acts 2000-2018, it is illegal to discriminate against a person because he or she is HIV positive.

The Acts state that Disability is one of nine grounds for discrimination. Chronic illnesses, like HIV, are considered to be a disability. Therefore, HIV-related discrimination cases are taken on this ground. Discrimination is described in the Equal Status Acts as “a person treated less favourably than another person is, has been, or would be treated in a comparable situation”. Equality rights are also extended to people in the asylum system (Direct Provision) and to those who may reside illegally in Ireland.

Making a Complaint

In the first instance, it is always good practice to attempt to explain the particular grievance or problem to the individual of the service/organisation or company. A person may not be aware that offence or hurt has been caused and may want the opportunity to address the concern.  Many issues are resolved at this level.

If no satisfaction is received at this level, enquire whether it is possible to speak with a manager.  If you remain unsatisfied with the outcome, you can enquire if the service or organisation has a complaints procedure.  Engaging with an organisation’s complaints procedure may result in your complaint being addressed to your satisfaction.

If you feel uncomfortable approaching a person or a service, you may put your complaint in writing to them.  For an Equal Status Case, you must write to the service provider (the company or the person) you are complaining about within two months of the last incident of discrimination outlining the incident.  You must state that you believe you have been discriminated against according to the Equal Status Acts, 2000-2018 and tell them that if they do not respond to your complaint within one month, or if you are unsatisfied with their response, you reserve the right to make a complaint to the Workplace Relations Commission (WRC).

The WRC is like a court, but less formal.  It covers employment issues and issues relating to the refusal of good or services.  The WRC will examine the claim and make a ruling on it. To make a complaint you will have to submit an online Complaint Form.  Please note, as part of this complaints process, you may be offered Mediation to settle the dispute.  You can find out more about this process in this Guide to taking an Equal Status Case.

For an Employment Equality Case, you must make the complaint within six months. You can learn more about this process in this Guide to taking an Employment Equality Case.

If your complaint concerns any government department, the Health Service Executive (HSE), local authorities (such as City or County Councils) or An Post, and you have been unable to resolve the problem with the public body concerned, you can write to The Office of the Ombudsman.  The Ombudsman’s Office, which is impartial and independent, investigates complaints from members of the public who feel they have been unfairly treated by certain organisations.

Support

Our Community Support team provides free support and advocacy services to people living with HIV.  If you think you have been discriminated against because of your HIV status, and would like some advice or support, email communitysupport@hivireland.ie or call 01 873 3799.

The Irish Human Rights and Equality Commission (IHREC) can provide assistance with legal proceedings involving issues of human rights.

Free Legal Advice Centres (FLAC) in an independent human rights organisation which offers some free basic legal advice to the public.

Useful Resources:

Your Rights Guide: The Employment Equality Acts 1998-2015 (Irish Human Rights and Equality Commission)

Your Rights Guide: The Equal Status Acts 2000-2018 (Irish Human Rights and Equality Commission)

Discrimination in Accessing Goods and Services: Guide to taking an Equal Status Case (Community Law & Mediation)

Guide to taking an Employment Equality Case (Community Law & Mediation)

Useful Websites:

Irish Human Rights and Equality Commission: www.ihrec.ie

Community Law & Mediation: www.communitylawandmediation.ie

Workplace Relations Commission: www.workplacerelations.ie

Data Protection Commissioner: www.dataprotection.ie

Freedom of Information: www.foi.gov.ie

The Ombudsman: www.ombudsman.ie

Citizens Information: www.citizensinformation.ie

Courts Service of Ireland: www.courts.ie

Irish Statute Book: www.irishstatutebook.ie

Case Studies in Ireland

The following are some case studies of discrimination experienced by service users of HIV Ireland.

Case Study 1: Equal Status Acts 2000 to 2008

James Goulding – v – Michael Doherty

Decision Number: DEC-S2009-073

Ground: Disability

In November 2009, a landmark HIV discrimination case was won in Ireland when James Goulding was deemed to have experienced discrimination as a result of being refused primary care treatment by a chiropodist (Michael Doherty), solely because of his HIV positive status.

Issue: Mr Goulding claimed that he was treated less favourably by Michael O’Doherty on the grounds of his disability when Mr O’Doherty refused to treat his foot complaint and advised him to seek treatment with another chiropodist.

Outcome: In its ruling, the Equality Tribunal stated that incorrect and outdated perceptions resulted in the complainant being viewed and treated less favourably than a person who is without HIV (or not known to have the infection) would be treated in similar circumstances.

The Equality Officer awarded the complainant €6,000 for the effects of the discrimination and the humiliation and hurt caused. In her decision the Equality Officer stated that the amount was to reflect the seriousness of the discrimination experienced by the complainant and to emphasise the importance of a person’s right to receive health care in a non-discriminatory manner.

(Source: Equality Authority Legal Casework Activity 2009, www.ihrec.ie)

Case Study 2: Equal Status Acts 2000-2018

A Service User -v- A Dentist and A Dental Clinic

Ground: Disability

In 2019, the Irish Human Rights and Equality Commission provided legal advice and representation to a woman in bringing her case, under the Equal Status Acts, to the Workplace Relations Commission (WRC).

Issue: A woman who had let the dental clinic know of her HIV status in advance of an appointment, having been injected with anaesthetic while seated in the dentist’s chair, was then refused treatment by the dentist.

Outcome: Resolved through mediation. The dental clinic apologised and made payment of €10,000 to her. It also implemented a company equality policy and provided equality and diversity, including HIV, training to its employees.

(Source: Annual Report 2019, Irish Human Rights and Equality Commission, www.ihrec.ie)

Case Study 3: Employment Equality Acts 1998-2015

A Prospective Employee -v- A Recruitment Agency

Ground: Disability

Issue: The offer of employment to a man living with HIV was withdrawn because of his medical condition.

Outcome: Resolved through mediation.

(Source: Annual Report 2019, Irish Human Rights and Equality Commission, www.ihrec.ie)