Workers and employees in the Philippines living with HIV who suffer workplace discrimination often do not seek redress, Human Rights Watch said today. The Philippines has the fastest-growing HIV infection rate in the Asia-Pacific region.
Workplace discrimination in the Philippines includes refusal to hire, unlawful firing, and forced resignation of people with HIV. Some employers may also disregard or actively facilitate workplace harassment of employees who are HIV positive. In most of the discrimination cases that Human Rights Watch documented, employees with HIV did not file formal complaints, most frequently due to fear of being further exposed as HIV positive, which could prevent future employment.
“The Philippines faces a double whammy of increasing HIV infection and fears by workers with HIV that they can’t seek justice if they are discriminated against on the job,” said Carlos Conde, Philippines researcher. “The government needs to ensure that people living with HIV get better protection in their jobs and that the public gets more and better information on HIV.”
The number of new cases in the Philippines of HIV, which causes AIDS, jumped from only four a day in 2010 to 31 a day as of November 2017. From just 117 cases a decade ago, the total number of HIV cases as of November 2017 is 49,733, an overwhelming majority of which – 41,369, or 83 percent – were reported in the past five years alone.
Most new infections, up to 83 percent according to the Philippine government, occur among men or transgender women who have sex with men.
The increase prompted the government to declare a “national emergency” in August 2017. The epidemic is fueled by an environment hostile to policies and programs proven to help prevent HIV transmission. Government policies create obstacles to access to condoms and HIV testing and limit educational efforts on HIV prevention.
The Philippines has strong laws on the books, notably the HIV/AIDS law, which criminalizes workplace discrimination against people living with HIV. But there is little evidence that the government is adequately enforcing the laws to prevent and punish workplace discrimination.
The extent of workplace discrimination is difficult to ascertain. Government agencies authorized to investigate and prosecute violations of the HIV/AIDS discrimination laws do not maintain a database of cases and rely almost exclusively on nongovernmental organizations (NGOs) such as Action for Health Initiatives (ACHIEVE) and Pinoy Plus, which only have databases of people seeking their services.
However, in Human Rights Watch interviews over the past year with these NGOs and 33 people with HIV, workplace discrimination was ranked among their most serious concerns. Many said they had no information about how to seek redress.
“Kevin,” 36, a call center agent from Cagayan de Oro who was diagnosed with HIV in March 2015, said he had no idea what he could do after his company forced him to resign. “As a result, I lost not only my employment but also the benefits due me after I left,” he said.
Government agencies such as the Departments of Labor and Employment, Health, and Justice, and the national Commission on Human Rights do not have specific information about the number of workplace HIV discrimination cases they have received or processed over the years. Apart from HIV awareness campaigns for the staff of these agencies, they do not have specific programs to encourage people who suffer HIV-related discrimination to file complaints.
People with HIV appear very reluctant to file complaints. The Commission on Human Rights handled one case in 2017, said Leah Barbia of the commission’s Gender Equality and Women’s Human Rights Center, but she was uncertain about previous cases. “I think the problem is that people with HIV who felt discriminated just don’t know who to approach to seek redress,” Barbia told Human Rights Watch.
The Department of Labor and Employment’s National Labor Relations Commission, which handles labor disputes not settled in mediation, has no data on complaints filed by people living with HIV, except for one case filed in 2014 and decided in 2015, said Maria Ricasion Tugadi, head of the commission’s research and legal department. She said in an email message that it may be because “most problems arise pre-employment/pre-engagement of the worker. If during the mandatory health checkup it comes out that the potential worker is HIV positive, the employer may possibly withdraw the offer.”
Even before the recent surge in HIV/AIDS cases, the need for better information on redress mechanisms was evident. A “Stigma Index” prepared by Pinoy Plus in 2010 listed workplace discrimination as a key issue among people with HIV. A 2011 country analysis of AIDS in the Philippines commissioned by the government’s National Economic Development Authority and three United Nations agencies found there was “fear of employment discrimination” by people living with HIV. In October 2010, UNAIDS considered the problem serious enough to publish a short book, Seeking Redress for HIV-Related Violations of Human Rights in the Philippines, which outlines the redress mechanisms available. The book, however, has not been widely circulated.
The Philippine government should create a major education and awareness campaign through various media to inform people living with HIV of their rights concerning workplace discrimination. It should direct concerned agencies to create and publish regularly updated databases of discrimination cases. And it should conduct an expanded public education campaign about HIV and address the wider issue of social stigmatization of people with HIV.
“The workplace experiences of people living with HIV bring to light the tragedy within a tragedy of the HIV epidemic in the Philippines,” Conde said. “The Duterte administration will need to act to ensure that the increasing numbers of people with HIV don’t result in ever greater workplace discrimination.”
In 2017, Human Rights Watch followed up its research on the HIV epidemic in the Philippines after publishing “Fueling the Philippines’ HIV Epidemic: Government Barriers to Condom Use by Men Who Have Sex with Men” in December 2016. During the follow-up research, Human Rights Watch interviewed 33 people living with HIV, including several of those interviewed for the 2016 report, primarily in Metro Manila but also in four other cities.
Human Rights Watch also interviewed representatives from the government as well as UNAIDS and several NGOs, including ACHIEVE, Pinoy Plus, AIDS Society of the Philippines, Positibong Marino Philippines, Project Red Ribbon, Pedal for HIV, Project H4, Northern Mindanao AIDS Alliance, Misamis Oriental-Cagayan de Oro Aids Network, and ALAGAD-Mindanao.
The Philippine AIDS Prevention and Control Act of 1998, Republic Act 8504, criminalizes discrimination against people living with HIV in the workplace “in any form from pre-employment to post-employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual.” Termination from work solely on the basis of actual or perceived HIV status is also unlawful. The law provides penalties for medical professionals who violate the confidentiality of patients’ HIV status.
The law also requires employers to enforce the HIV and AIDS Prevention and Control in the Workplace Program, which protects employees with HIV from discrimination. But the Department of Labor and Employment (DOLE), which enforces these laws and policies, mainly through workplace inspections, has conceded that enforcement has been inadequate. In 2016, the department inspected 60,311 of the 937,000 companies and establishments across the Philippines. In 2015, it inspected 44,520.
“We are spread thin,” said Dr. Mart Valeros, who oversees the enforcement of the HIV policy at the department’s Bureau of Working Conditions. “We simply lack the personnel.”
Moreover, the department is only able to inspect companies in the formal sector, many of them multinational companies, leaving unchecked the 63 percent of the 937,000 companies and establishments around the country in the “informal sector” that are not included in the department’s database.
In its 2016 compliance report, the Bureau of Working Conditions identified five “possible gaps” in its implementation of the policy: 1) maintaining worker confidentiality when accessing services; 2) reaching the informal sector; 3) lack of counsellors at some companies; 4) knowledge or perception of HIV prevention not translating into expected outcomes; and 5) persistent stigma against people with HIV. The department did not include lack of enforcement as one of the key implementation problems.
The International Labour Organization (ILO) said in 2017 that general labor law compliance in the Philippines “faces a number of challenges,” including “low coverage due to inadequate number of labor inspectors and limited capacity of labor inspectors in carrying out specialized inspections.” In an earlier 2013 assessment of labor inspections in the Philippines, the ILO was more blunt: “The gap in promoting and protecting the rights of workers is especially evident in the weak enforcement of minimum standards.”
In 2013, the ILO supported a shift by the DOLE from “self-assessment” in its general labor standards to a labor laws compliance system that it hoped would strengthen the policy by, among other things, hiring more labor inspectors and engaging companies to essentially police their own ranks. Labor groups contended, however, that the new system lacked effective enforcement mechanisms, akin to “asking the wolf to guard the sheep.”
Companies found to be noncompliant do not face sanctions and are often just fined a negligible amount. “We try to be developmental about it,” Valeros said, referring to his bureau’s practice of giving companies as much leeway as possible to comply, rather than punishing them by recommending non-renewal of their business permit or imposing fines, for example.
Edu Razon, the founding president of Pinoy Plus, the first association of HIV-positive Filipinos, said this has meant that companies are not being meaningfully punished for workplace discrimination, including of people with HIV.
Discrimination and Stigma Against People with HIV
In the early years of the Philippines’ HIV crisis, from 1984 to 1990, HIV was concentrated among female commercial sex workers, who constituted 133 of the 216 cases – or 62 percent – of HIV documented during those years, according to Department of Health data. The department, then led by Secretary Juan Flavier, sought to erase the stigma of HIV with a campaign to promote condoms.
The influential Catholic Church opposed Flavier’s campaign, at one point calling him “an agent of Satan.” Conservative allies of the church helped to excoriate Flavier, a Protestant – and to stigmatize people with HIV – by accusing him of promoting “promiscuity, lechery, adultery, and sexual immorality.”
Since then, most HIV infections in the Philippines – 46,343, or 94 percent of the total 49,506 cases documented by the health department from 1991 to November 2017 – have occurred in men. And out of that number of infections among males, 83 percent were among men who have sex with men.
Jonas Bagas, a Filipino lesbian, gay, bisexual and transgender (LGBT) rights activist and program officer at the Asia Pacific Council of AIDS Service Organizations in Thailand, said that stigmatization of people with HIV is “the biggest challenge” to how the government responds to both the epidemic and to abuses of the rights of people with HIV. Bagas has urged the Philippine government to include in its response to the HIV epidemic “an emphasis on human rights, removing the stigma and discrimination against vulnerable sectors.” Bagas said the stigma for people with HIV who are members of the Philippine LGBT community is particularly troublesome:
There’s the stigma that those who are vulnerable face – the MSMs [men who have sex with men], the transgenders, the injecting drug users. I suppose if the epidemic exploded among, say, mothers and children, we would have a different response by the government. The fact that the epidemic is concentrated on [gay men], however, makes them ignore it. That happens all the time with government: if it’s gay people who are affected, let’s just look for them, have them tested, list those who are positive, and then we can monitor their movements and behaviors. That remains the attitude of government officials. The biggest challenge is stigma.
Razon of Pinoy Plus said, “Whether you have HIV or not, if you are gay, many Filipinos think less of you.”
Most of the people with HIV interviewed listed fear of being exposed as HIV positive as the main reason they did not complain or file cases against their employers and supervisors. Many said that once they are outed, the difficulty of finding another job is very real.
They also said they thought that pursuing cases against employers would be cumbersome and costly, with some believing that their employers were powerful people who could frustrate any attempts to complain. Others said that they simply did not know whom to approach for help. Other reasons put forward were the need to just move on or that their families discouraged them from pursuing cases because of potential shame to the family.
No Meaningful Public Education on HIV
There is a lack of meaningful public education in the Philippines about HIV transmission and safer sex practices. LGBT rights advocates say that this reflects the government’s longstanding failure to adequately address the HIV epidemic. For example, millions of Filipinos are not sufficiently educated about the role of condoms in preventing HIV transmission. Department of Health data indicates that only one out of five men who have sex with men have basic knowledge of HIV. Inadequate public education on HIV and the rights of people with HIV facilitates stigma and discrimination in the workplace.
The public education efforts of the Departments of Labor and Employment, Justice, and Health on anti-discrimination policies targeted at both employers and the public also fall short. The DOLE’s Occupational Safety and Health Center deals with several other concerns, mainly safety in the workplace such as at construction sites, with little emphasis on HIV/AIDS. Its brochure on occupational health only references the basics of HIV transmission. While it also addresses the rights of workers with HIV, it does not describe any service it provides to address discrimination.
The center conducts trainings on basic occupational safety for companies in which HIV prevention and control is one of numerous topics, not a main subject, which advocates for the rights of people with HIV strongly recommend. Its training schedules for 2017 published on its website contained nothing specifically about HIV/AIDS.
No Documentation of Cases
The DOLE’s Bureau of Working Conditions, which monitors HIV in the workplace policy compliance, maintains no database on the number of complaints people living with HIV have filed with its office or other DOLE agencies, such as the National Conciliation and Mediation Board (NCMB), which tries to settle labor disputes before they escalate into litigation.
“We handle a lot of cases but, in my years as a desk officer, I have not handled a single case of a worker who suffered discrimination because of his or her HIV status.” said Ronda Malimban, an NCMB lawyer who handles labor disputes.
The Occupation Safety and Health Center, which conducts basic HIV/AIDS seminars, also has no database of workplace discrimination cases filed by people with HIV, said Joyce dela Cruz, a department representative to the Philippine National AIDS Council. “We monitor compliance to the HIV in the workplace policy and give training – that’s our mandate,” dela Cruz said. “If we receive complaints, we refer them to NGOs.”
Romeo Senson, an assistant state prosecutor who represents the Department of Justice at the Philippine National AIDS Council, said the department did not have a database of such cases. He knew only of a couple of cases that the department had handled – a television executive and a hairstylist, both of whom lost their jobs because of their HIV status. But Senson could not recall any cases in which the courts found an employer or company guilty of workplace discrimination over a person’s HIV status.
Hector Soliman, a lawyer who assists LGBT groups, said that among people living with HIV, “basic human rights awareness in general is limited.” Teresita Bagasao, most recently the country coordinator for UNAIDS, said: “The environment is not enabling for these PLHIVs [people living with HIV] because they do not know that they have redress. Not everybody has the stamina to move their cases forward. The number one fear is undue disclosure of their identity and HIV status.”
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Published on HRW on February 8, 2018.
GLOBAL HIV STATISTICS
With the adoption of the Sustainable Development Goals, United Nations Members States committed to leave no one behind and to end the HIV, tuberculosis and malaria epidemics by 2030. Leaving no one behind requires addressing stigma, discrimination, and other legal, human rights, social and gender-related barriers that make people vulnerable to HIV and hinder their access to HIV prevention, treatment, care and support services.