Mexican Supreme Court rejects HIV discrimination case

Guadalajara -
By a narrow vote, a five judge panel of Mexico's highest tribunal, the Supreme Judicial Court, has rejected an appeal filed by an HIV positive man who was fired from his bank job almost six years ago.

The 3-2 ruling against the man was announced Wednesday.

Yseel Reyes Delgado, 39, was diagnosed with HIV in 1997, and has been under regular medical care since. He claims he is able to work and lead a normal life.

In September 2007 Reyes, a financial adviser, was dismissed from his position. He contends the bank's human resources department leaked, or allowed to be made public, medical files confirming his condition. That led to disruption in the office, which the bank then used as the basis for firing him.

In his lawsuit Reyes agreed that he was exposed to a "wave of workplace hostility and discrimination" as a result of the publication of confidential health documents, but "not enough to justify dismissal."

"They cut me off from the rest of the office staff, forcing me into a job of maintaining databases when in fact I'm a business consultant. I was listed on their books as part of the 'incapacitated work force.' It was all discriminatory, anyway you look at it."

Further details on the profound issues are available in this excellent analysis.

Two judicial ministers agreed with Reyes' contentions, and found the bank had violated his legal rights by publishing medical information in which he had a clear expectation of privacy.

But three other ministers, with little comment, voted against Reyes' request for an amparo order - a powerful legal tool available to Mexicans, designed to remedy almost any civil or criminal violation.

In the U.S. the law with respect to discrimination against HIV infected persons in the workplace is still developing. Some federal courts have held that such employees are protected by the Americans with Disabilities Act (ADA), passed in 1990. Amendments to the ADA approved by the Congress in 2008 support the argument that a dysfunctional immune system should be considered a disability entitling the affected worker to protection from discrimination, provided he or she can otherwise perform the core requirements of the job. Horgan v. Simmons, 704 F.Supp. 2d 814 (N.D. Ill. 2010); EEOC v. Lee's Log Cabin, 546 F.3d 438, 442 (7th Cir. 2008). Firing such persons without cause may be illegal.

MGR's view: A disappointing ruling by Mexico's highest court, which in recent years has shown great interest in the concept of fundamental human rights. This is a step backwards on that issue.

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