Pioneer Decision of Sunafil
Through Resolution 1216-2023-Sunafil-First Chamber, issued on December 28, 2023, the Labor Inspection Court referred to the relevant precedent in this case. In this precedent, SUNAFIL sanctioned a health sector entity for incurring a very serious infraction in the labor relations area by discriminating against an applicant for the stretcher-bearer position for being an HIV carrier.
Defense of the Health Entity
The sanctioned health sector entity defended its action, arguing that the selection procedure did not continue due to false information provided by the applicant in his/her affidavit regarding the presence of diseases, an allegation supported by the challenger through medical evidence, and the considered contact with patients, based on the legal regulations and labor health and safety policies, according to the job description established in the company’s “Organization and Functions Manual – Nursing Management.”
In addition, they affirmed that the conduct of HIV screening and other procedures during the selection process followed standards aligned with the legal requirements applicable to their sector to ensure a safe working environment for staff and patients alike.
Commitment Against Discrimination
The company also highlighted its commitment to non-discriminatory practices, arguing that the decisions made in the applicant’s case had no discriminatory intent and were consistent with the policies applied to all applicants.
They emphasized that their approach was based on objective criteria related to the position requirements, not the individual’s health status.
Court’s Analysis
According to the Court’s analysis, despite the applicant’s possible interaction with patients, the entity should have assessed whether this proximity represented any real transmission risk. Conversely, the challenger carried out discriminatory acts by interrupting the selection process, affecting the applicant.
In this regard, the provisions of Article 15 of the Regulations of Law 26626, which prohibits requiring an HIV diagnostic test as a condition to initiate or maintain labor, educational, or social relationships, were not complied with. The Court emphasizes the lack of assessment of the transmission risk and highlights the violation of preventing discrimination regulations based on health status.
Therefore, it is a discriminatory act in the labor area to deny the continuation of an applicant in the selection process upon discovering that he/she suffers from HIV, affecting him/her in his/her job search.
Dual Criteria of Sunafil
For some prominent labor jurists, the Sunafil criterion has a crucial dual structure composed of two distinct parts, each with its considerations and potential implications.
In the first section, the criterion unequivocally establishes the prohibition of discrimination based on HIV. This premise is emphatically non-negotiable and aligned with the law, which explicitly singles out HIV, along with factors such as sex, race, religion, and language, as examples of non-discrimination. This first part is essential and correct, safeguarding fundamental rights and promoting equality in the workplace.
Conversely, the second section of the criterion states that medical examinations should be only performed after the employee is hired, not before the employment relationship is established. The objection to this part of the criterion is based on the significance of medical examinations as an integral part of the personnel selection process.