那一天， 工作拒絕我 社團法人中華民國愛滋感染者權益促進會
That day, I was turned down for my job…
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社團法人中華民國愛滋感染者權益促進會 Persons with HIV/AIDS Rights Advocacy Association (PRAA) Presents 2006
那一天，工作拒絕我–臺灣愛滋感染者的工作現況（2006） 出版 社團法人中華民國愛滋感染者權益促進會 地址 (100)台北市桃源街1號8樓803室 電話 (886-2)2311-0333 傳真 (886-2)2375-9150 電子郵件 firstname.lastname@example.org 網址 www.praatw.org 贊助 Levi Strauss Foundation / 社團法人臺灣社會福利聯合勸募協會 作者 呂昶賢 顧問 王蘋、李長春、林宜慧、林瑞勝、吳嘉苓、倪家珍、張維、 楊惠中、葉珈語、鄧宗業（依姓氏筆畫順序） 英譯 編輯 林宜慧 校對 林宜慧 排版 孫珮慈 美編 孫珮瑀 印刷
目錄 Chapter 1
緒論 愛滋感染者的工作權／2 愛滋感染者在職場／2 愛滋感染者工作權的法律保障／3 愛滋感染者能做哪些工作？／4 計畫緣起／5 故事的選取與編排／6
Chapter 3 Chapter 4 Chapter 5
結論 工作權合併隱私權被侵犯／52 被排拒在職場外的愛滋感染者／54 現行防制條例無法保障感染者的工作權／57 主管機關對感染者工作權的立場／59 寫給讀者的話／60
Chapter 1 緒論 愛滋在臺灣這塊土地上已經20多年， 人數日益增加的愛滋感染者， 也在各自的求職路途、工作崗位上， 遇到了重重阻礙……。
[愛滋感染者的工作權] 9159，這是臺灣20歲到59歲的愛滋感染者人數註一，約佔總感染 者人數的九成以上。如果考慮未被篩檢出的黑數註二，我們可以 說，到目前為止，臺灣約有5到10萬的青壯年感染者。在這其 中，多數都為了維持自己、或支撐家庭的生計，而必須努力打 拼，在各行各業貢獻所長。 遺憾的是，臺灣社會並未提供這群人平等的工作機會。 將近20年的愛滋防治宣導，我們看到越來越多的雇主在體檢 項目、雇用條件中要求愛滋檢查，藉此篩除愛滋感染者。不論 是在公家機關、或私人公司，許多青壯年感染者，都面臨越來 越徹底的捕捉與排拒機制。有些幸運者或有可能規避員工「福 利」健檢，不會被迫曝光而保住工作；更大多數無計可施的愛 滋感染者，有些主動辭職，有些放棄報考，只能選擇不需體 檢、條件較差的工作。
[愛滋感染者在職場] 或許你感到疑惑：「愛滋感染者能工作嗎？他們需要工作權 嗎？他們不是身體有病？常常需要住院休養嗎？」 自1997年起，臺灣開始免費提供雞尾酒療法，大多數的感染者 只要按時服藥，多半能控制愛滋病毒的複製－從此愛滋病成為 慢性病，如同高血壓、糖尿病一般，只需要長期服用藥物，並 自我管理身體健康即可。
因此，本會以「愛滋感染者」一詞取代「愛滋病患」，因為 「感染者」不是「病人」，不過是身上帶著一些愛滋病毒（英 文稱為person with HIV；PWH）。愛滋感染者服藥後，病毒數 量通常都可被控制而健康無虞；如感染者韓森註三，便已感染愛 滋超過二十年，目前除了積極參與本會業務，也在教會有固定 的工作、服務人群。有些感染者的身體狀況良好，甚至不用服 藥治療，只需定期追蹤免疫細胞與病毒的數量註四即可。即便不 慎發病，如本書的兩位受訪者，不知自己已感染愛滋，直到潛 伏期過後發病住院，服藥治療後也得以在一個月內很快出院。 「工作」除了代表穩定的經濟收入，工作中的成就感也是自我 肯定的來源。有動機找工作的人，多半願意對自我負責，也想 追求生活品質；另一方面，較少數無法適應雞尾酒藥物副作 用、或時常發病的愛滋感染者，就不容易維持穩定的工作狀 態，也比較不會想找工作。因此，在這本討論愛滋感染者工作 權益的書中，你更會看見有一群人，在感染愛滋後依然能如此 積極健康，或許和你以前對愛滋感染者的想像非常不同。
[愛滋感染者工作權的法律保障] 《就業服務法》第五條規定：「雇主不得以種族、階級、語 言、思想、宗教、黨派、籍貫、性別、婚姻、容貌、五官、身 心障礙與工會會員身份為由，予以歧視。」這是臺灣針對工作 權平等及反就業歧視的法律條文，說明雇主不得依工作能力之
外的其它特性對員工逕自進行篩選。依照上述條文的精神，愛 滋感染者雖然不在條文的列舉之中，卻也不影響工作能力，因 感染愛滋而求職受阻，即構成歧視。 1987年，立法院開始討論制定《後天免疫缺乏症候群防治條 例》，這是針對愛滋防治及愛滋感染者的權利義務所專門訂定 的法律。直至1996年，增訂了防治條例第六條之一：「感染人 類免疫缺乏病毒者之人格與合法權益應受尊重及保障，不得予 以歧視，拒絕其就學、就醫、就業或予其他不公平之待遇。」 這是唯一論及愛滋感染者工作權的條款，我們將會在這本小冊 裡，經常引用本條文。
[愛滋感染者能做哪些工作？] 2003年，行政院衛生署愛滋病防治推動小組決議：「感染愛滋 病毒之性工作者，應予限制，其他行業不宜採負面表列，應依 個案行為進行個別處理。」也就是說，以官方的立場，除了性 工作之外，沒有任何工作是一定不能讓愛滋感染者從事的。 2004年，彰化縣衛生局對於愛滋感染者是否能擔任廚師一職有 所疑慮，當時衛生署回覆：「不能剝奪愛滋病毒感染者的工作 權，因此愛滋病毒感染者依法可從事廚師等食品相關工作。」註 五
愛滋病毒的傳染途徑早已清楚明白－性行為、血液、母子垂直 感染。「性行為」與「母子垂直感染」這兩大途徑，並不會在 一般職場互動中發生註七，而就「血液」感染的可能性來說，需 要「有明顯可見、非擦傷的大面積新鮮傷口，並與感染者的血 液接觸」才有感染的可能，這番描述，是經過多年的實際案例 和科學研究，被廣為承認的註八。 因此考慮一般的職場互動，確實感染者幾乎沒有不能做的工 作。
[計畫緣起] 愛滋感染者權益促進會成立至今九年（1997～2006），在這段 時間我們一直與一些工作權被侵害的朋友有聯絡，試圖爭取愛 滋感染者在職場上應有的公平對待。這些工作經驗都被本會社 工記錄成文字檔案，卻一直沒有機會能好好整理並系統性的被 呈現。 直到2005年下半年，我們終於有機會能重新回顧這些檔案。 Levis Strauss Foundation提供了本會一筆贊助，在這個機緣下 我被敦聘負責本計劃的訪談和文字書寫。另外有一群愛滋人權 領域的專家及實務工作者所組成的工作小組，每月定期聚會， 關心計畫發展狀態、討論文字初稿。 如此歷時約半年，本書才得以完成。
[故事的選取與編排] 我們考量被侵權經驗的代表性、特殊性、與牽涉層級的範圍大 小，從本會工作權的檔案裡，選取了三位朋友的故事。除了描 述他們遭遇的侵權事件，還重新一一聯絡，針對細節進行訪 談。 工作小組討論了需要注意的倫理議題，並依此發展出「告知同 意書」與「權益保障規範」兩份文件。在每次訪談進行前，我 們會請受訪者閱讀文件上的說明，並特別強調：所有與個人隱 私相關的部份，都須經過受訪者同意才得以發表。這半年間， 即便是工作小組內部的討論，都是先讓當事人與相關人看過初 稿並徵得同意後，才以不攜出紙本的方式，在本會辦公室內討 論。 從本會的經驗發現，每個人因其工作性質相異，侵權發生時會 被對待的方式也就不同。我們無意宣稱，呈現這三位朋友的故 事，就足以代表臺灣其他感染者工作權被侵犯的經驗。反之， 我們要說，這三位朋友可能是其中較為幸運的，他們或有支持 的上司、或有機會找其他工作餬口、或是本身的社會經濟條件 比較有利，方得以支持他們與本會一同為自身的權益而戰。為 數更多的感染者朋友，對於烙／落在自己身上的歧視與壓力， 往往是默默承受。 關於感染者被歧視、侵權的處境，我們希望有更多的故事能出 現、能被看見。讓我們對臺灣愛滋感染者的理解，不再僅停留 在悲情或是道德譴責，而是對他們的種種不利處境，能有更 廣、更真實的細緻認識，以建立更符合公平正義的社會。
▍註釋 註一：至2005年終，通報至疾病管制局的累計數字。 註二：根據聯合國的估計，臺灣地區實際感染愛滋人數約是官方統 計數字的五到十倍。 註三：關於韓森1986年到1995年的故事，可見於《韓森的愛滋歲 月》一書中。 註四：由於愛滋病毒會攻擊人體的白血球細胞（即CD4），因此每 一立方毫米的CD4與病毒數量，就成為愛滋感染者免疫力狀 況的指標。 註五：衛署食字第0930037554號函。 註六：自由時報2004.10.26。 註七：性工作在臺灣目前仍是非法的。本會認為，要推動「性交易 裡的安全性行為」就必須合法化性產業，才能保障性工作者 免於感染愛滋。 註八：全球目前確定因「傷口接觸」而感染的個案僅有一例。臺北 市政府勞工局在當年的十一月，曾針對本案召開臨時會議， 其會議紀錄中決議第二項即記載：「其餘與會代表（勞工 局、交通局、衛生局）皆認為愛滋病之傳染確係由兩造體液 接觸而產生，但一般的小擦傷或刮傷並沒有傳染之虞，即使 真有感染，其感染率亦僅千分之一，更遑論兩造皆有明顯而 足以造成感染之傷口機率亦極低。」
Chapter 2 阿祥的故事：便利商店的職場歧視 2004年， 某便利商店店員阿祥（化名）住院， 上司在探病時懷疑他感染愛滋， 阿祥出院後，旋即被要求優退， 公司內部也開始流言不斷……。
2005年，本計劃正要開始進行，阿祥在職場上的紛爭也約莫 同時告一段落。便利商店店員的工作性質吸引了我的興趣，透 過檔案與本會社工口述，我開始對阿祥這整件事有了概括的理 解，決定選擇書寫他的故事。擬好訪談大綱後，就請社工與阿 祥聯繫，敲定時間。 某週六，我與社工在本會辦公室用晚餐，阿祥依約前來。 對社工來說，與阿祥的聯繫都是透過電話，當時的工作目標主 要是替他向公司管理階層溝通，並沒有和阿祥面對面談話的經 驗。儘管如此，阿祥確實有做服務業工作的特質，開朗而討 喜，我們一照面就熱絡的閒聊，很快地少了初見面的拘謹，這 才開始回溯阿祥在便利商店的那段經驗。 ※※※ 2004年，阿祥突然生病住院三週，經由血液檢驗，確定阿祥感 染了愛滋病毒。阿祥的便利商店區組長曾來探視他，該組長有 醫療背景，留意到床邊的廢棄物袋是感染性疾病專用的，就起 了疑心。病癒出院後上班，組長與經理就約談阿祥，要他去做 體檢來證明沒有感染愛滋。阿祥拒絕了。
※※※ 「剛知道感染的時候，你感覺是怎樣？」社工問。 阿祥說：「剛知道的時候慌了啊，就跟另一半講說要不要分， 他說不要。那我想就沒關係，就繼續下去，只是兩人以後要做 的話，一定要有防範措施。我也請他幫我保密，不要跟我爸媽 講。」 在我們的經驗中，新感染者總要面對已有的親密關係可能破 裂，以及要隱瞞家人的壓力。但是，他們並沒有太多調適心情 的時間，因為接踵而來的，還會是關乎實際生存的「工作危 機」。 ※※※ 我問阿祥：「因為主治醫師堅持一定要在診斷證明中開愛滋嘛 註二 ，所以你在附給公司診斷證明的時候，你應該就知道，這證 明一遞出去，公司就會知道你的事。你那個時候怎麼想這件 事？」我知道有些人遇到類似阿祥的狀況，寧願辭職也不願曝 光，我很好奇阿祥是如何要決定給公司診斷證明。
阿祥回憶了一會兒，確定地說：「沒有、完全沒有。我那時候 只知道說，要把診斷證明附回去，也想過他們會知道，但沒有 想過他們知道後會怎樣……。」 有些剛知道自己感染愛滋的人，並不清楚在職場上曝光的後
果。對於感染愛滋一事半強迫的被公司知道，阿祥雖然心裡有 些疙瘩，但也沒料到後來公司竟不願意讓他繼續上班。 ※※※ 公司管理階層約談阿祥，希望他「好好休養身體」，因此他被 迫繼續「休養」。 「這是你沒有預期的嘛，他們知道你感染，跑來約談你、強迫 請你休假時，你怎麼想？」我接著問。 阿祥說：「經理和組長跟我約在一家咖啡廳，先假裝關心一下 啊，問我最近有沒有好一點，後來就叫我好好去休養，就先請 事假。我那時候也沒有意會到，他們其實是不想讓我繼續在這 個地方上班，我事假就這樣請了三個月。」 「那段『在家修養』的時間，你都在幹嘛？」我問。
阿祥回答：「我被強迫休假，我不可能整天待在家裡，因為我 會受不了。我就是個好好的人我就康復了，我整天待在家裡， 我媽也會覺得很奇怪。我後來就在104人力銀行找工作，什麼 都找：宅急便啊、送貨的啊、快遞的啊…去開救護車，結果救 護中心在殯儀館旁邊，嚇都嚇死了我不敢去。」我與社工忍著 笑，點頭表示理解。想到一些與本會接觸過的感染者朋友，在 工作權被侵害之際，靠炒股票、擺地攤、賣蔥油餅維生，我這 一笑又多了幾分苦澀。
「後來我就去一家藥妝店上班，也做的滿習慣啦，就是比較 累。」阿祥補充道：「原本一開始我會很害怕，怕我媽覺得奇 怪會懷疑有什麼內情，便利商店好好的說不做就不做。我跟爸 媽說，我生完病回來，公司就無緣無故不讓我上班，我爸媽就 叫我算了，不要跟公司吵，不在便利商店工作也沒關係。」 在藥妝店算一算也做了快三個月，直到便利商店的人事部門發 現阿祥的休假已經請完，再不上班就要算離職，他們詢問店 長，阿祥才從店長那得到儘速恢復上班的通知。 阿祥回憶那時的狀況說：「我還在那間藥妝店上班，結果接到 便利商店店長通知我說三天後馬上要上班，我一聽到可以回去 就很高興，因為又撿回一份工作。但是藥妝店那邊我就這樣突 然離職了，其實是鬧得很不愉快。」 ※※※ 這份撿回來的工作並沒有維持多久。甫一回到工作崗位，經理 又到門市找阿祥談，表示希望阿祥能辦理優退，領完年終獎金 就走，阿祥也接受了。
阿祥敘述：「他（經理）問我要不要轉調到其他工作，或是乾 脆優退？我想說就離職吧，因為那時候才剛回去，心裡會有點 怪怪的，不清楚有多少人知道我的事？不知道那些主管嘴巴緊 不緊？會不會講出去？」 才剛復職，不確定隱私被流傳的程度，再加上上級的極力勸
說，阿祥選擇了離職。與其力爭到底，不如轉換職場，藉此避 開壓力。 然而，在接下來等待離職的日子裡，阿祥發現越來越多人打探 他是否感染了愛滋，他對看似流傳越來越廣的八卦，不安又憤 怒。得知有權促會這個機構及其工作內容，便與本會聯絡，希 望本會能遏止他的隱私繼續被散播。 ※※※ 「那時候是很多人都在猜測你的事嗎？」我想了解隱私被侵犯 的具體狀況。 阿祥舉了一個例子說：「有別店店長跑來問我的店長。我們店 長一開始裝傻，對方就說：『別騙我了，我已經知道啦。』我 自己就會想說，連他那個層級的人都知道，還有誰不知道？更 讓我覺得乾脆就照經理提的優退算啦。」 我接著問：「所以你其實只是希望社工幫忙隱私權的部分，那 時你沒有想要爭取回復原職嗎？」
阿祥點頭，答道：「我那個時候就打算做到過完年。只是請社 工幫忙，叫他們不要再曝光我的隱私，去追問當初有誰知道我 的事，然後請他們停止散播下去。」
阿祥把他店長的聯絡方式提供給社工。這位店長很支持阿祥回 來工作，經理也會找他討論阿祥的去留問題，透過店長，我們 較可了解公司內部的狀況。 社工從店長那得到該區組長的聯絡方式，社工開始就隱私權的 部分與區組長溝通。區組長在社工報上身分、單位後，以嚴肅 的口吻重複說明他並未散播阿祥的病情，乃是由於他有醫療背 景，在探病時發現阿祥的病床廢棄物處理袋是「感染性疾病」 專用的，才開始懷疑。最後是阿祥自行提供的診斷證明上有寫 「後天免疫不全」，公司才知道他感染。 阿祥反駁說：「我剛出院還沒交診斷證明前，那個組長有天就 跑來我門市，說什麼要我保重身體、問我要不要休養、怕我割 紙箱割到手。我是肺部有病變住院，跟割到手有什麼關係？他 那時已經很強烈的在懷疑了。」究竟該組長如此肯定的懷疑從 何而來，我們並不清楚，但當時最重要的是，如何進一歩遏止 阿祥的隱私再被散播。 社工向組長反應阿祥已經對於公司內部的閒言閒語很不安，深 怕就算調到其他地方也會遇到同樣問題，該組長表示會反映給 經理知道，請內部討論。 ※※※ 阿祥的故事：便利商店的職場歧視
等待公司管理階層討論的期間，社工請阿祥幫忙尋找公司內部 的人事法規，作為擬定策略的參考資料。阿祥在電話中遲疑了 一下，擔心地說：「我們可以跟這麼大的公司抗衡嗎？」面對
大公司、大體制，阿祥的疑慮再自然不過了。 社工瞭解阿祥的擔心，他加強語氣地說：「權促會雖然只是一 個民間的小機構，但我們於法有據，當然可以跟大公司談條 件。」 接下來兩週，我們都不清楚公司高層的討論。店長於是主動跟 經理詢問店員阿祥的去留，同時讓經理知道阿祥已尋求本會協 助；經理顯得非常緊張，向店長表示不用再多追問阿祥的事 了。店長以他的理解，判斷目前公司似乎打算「冷處理」此 事，就建議社工不用再致電經理，免得多增風波，社工判斷後 同意，也決定先不再主動介入此事，靜觀其變。 阿祥於是繼續留在原職，一直工作至今，看起來整件事是快速 平息下來了。 ※※※
我問說：「如果你當初覺得隱私曝光的問題很嚴重，為什麼後 來又決定要繼續做下去？」 「那是因為經理後來調走了，店長提說：『反正都換主管了， 你能做就繼續做。』我就答應。」阿祥接著說：「照理，舊的 經理要走，新的要進來，我這麼大的事情他們怎麼會沒有跟新
社工說：「所以我和店長才會覺得，可能是有比經理更高層的 決議，把這件事壓下來。畢竟大企業都會怕自己的形象受損， 不敢亂來。他們自己內部也有法律顧問，應該曉得隨便把你解 雇他們站不住腳的。」 阿祥聽完表示同意，但補充說：「他們怕我，可是你說我不會 怕他們嗎？我也會怕他們用小動作來找我麻煩。所以店長也才 會說，叫我自己的事要做好，不要讓別人有機會講話。」 「之後還有人傳你的事嗎？」社工關心阿祥復職至今的狀態。 阿祥很高興的回答：「其實就沒有了。如果碰到一些不想看到 的人，就當作不認識啊。我一樣做我的事，自己的事情都有做 好，他們也沒有辦法刁難我。」 ※※※ 其實幾個月後，2005年的年中，還發生了另一件插曲。 當地地方衛生機關規定，服務業的從業人員要定時體檢，公司 高層就藉此要求阿祥必須遵循此規定，並示意店長，如果阿祥 的體檢結果不合格，公司依法必須將阿祥解雇。
知道上層有意藉由體檢的名義開除阿祥，店長著急地打電話與 社工商量。社工問了狀況，請阿祥先親自去醫院拿體檢結果， 再決定下一歩該怎麼走。阿祥看了報告，發現檢驗項目並未 列有愛滋此項，才鬆了一口氣，並交給公司一張體檢合格的證
明。整件事看似虛驚一場而落幕，實際上卻顯示公司仍未放棄 要阿祥離職。 ※※※ 有一位支持他的店長，也是阿祥還能恢復原職的關鍵之一。對 一般的感染者朋友而言，在身分曝光之後，還能有支持留任的 上司，幾乎是不可想像的。 我們後來想要了解何以該店長能如此與眾不同，便找了個機 會，約店長在門市附近的咖啡廳，稍微聊一陣子。 「你們問我為什麼這麼挺阿祥喔？」店長說：「其實我們便利 商店店長與店員的上下關係，跟其他公司不同，都是一起工作 嘛。後來都會跟朋友一樣，況且我跟他也算認識八年，都在這 公司做很久了。」 我相信阿祥與店長間必然有深厚的同事情誼，但我也同時關心 店長的正向態度，是否也跟他的愛滋常識有關。於是我再問： 「你對愛滋的知識、傳染途徑之類的，有沒有特別的了解？所 以你才不像別人一樣會怕阿祥。」
我知道不會，但還是會想一下、頓一下。他喝我的飲料，我再 喝、或是我在店裡去上個廁所啊，我都會，啊！想一下，然後 知道不會傳染後就不理它。」
我們都知道，或因恐懼、或是知識不足，臺灣仍有許多人不敢 與愛滋感染者吃飯、同喝一杯水、或共用廁所。店長對愛滋有 正確的瞭解，又不會被恐懼宰制、鑽牛角尖，就能從感染與否 的思考中跳脫出來，免去不必要的擔心。 ※※※ 我想起與阿祥的閒聊。訪談到最後，我直接問他：「你做店員 快十年都沒有升店長阿？」工作既然是個人安身立命之道，我 們自然關心起阿祥的生涯方向。 「我覺得我本來會升，真的！但後來可能是因為這個（感染愛 滋曝光）所以沒有升。」阿祥的神態很認真，一副深怕我們不 信的樣子：「之前那個組長有找我聊天，問我喜不喜歡當店 長。他本來有意思要把我往上拉，結果後來就是他一直散播我 的事。」 談到升遷的問題，阿祥說：「我做這麼久阿，多多少少哪家店 什麼店長，都蠻熟的。他們都會問為什麼我還沒去當店長，我 就說壓力太大，不然就說我能力不夠。我有時候會這樣講。」 因為感染愛滋病毒使得升遷受阻，就是一種歧視。
不過，阿祥最後仍豁達地說：「我應該升不上去啦。其實我要 升也是可以，就是調到其它區，其它區比較缺店長。」他又絮 絮叨叨描繪了賣雞排、去鄉下門市工作等想像，我與社工則邊 聽邊為他感到高興。看到阿祥在大公司的網絡中，擁有一種尋
▍註釋 註一：愛滋病毒造成人體免疫力下降後，就容易併發伺機性感染， 這些症狀即稱為後天免疫不全症候群（Ａcquired Ｉmmune Ｄeficiency Ｓyndrome；ＡＩＤＳ）。 註二：有些醫師瞭解在診斷證明上寫入「愛滋」，會造成病人的工 作不保，所以會願意只開立入院時的症狀（如肺炎），而不 寫「愛滋」一詞。
Chapter 3 小黑的故事：捷運局的體檢機制 2002年， 臺北市捷運公司招考司機員， 已通過考試的小黑（化名）發現， 就職體檢表內包含愛滋檢驗， 最後只好放棄工作機會……。
時間回到2005年8月，週六下午臺北典型的夏季悶熱氣候，我 與本會社工一同在權促會辦公室等著小黑。小黑遲了近兩小 時－我幾乎以為他不會來了，畢竟先前沒有機會能建立深厚的 關係，接受訪談對小黑來說也沒有實質的利益，考慮到可能曝 光的種種問題，小黑是有可能打退堂鼓的。直到他進門，為了 臨時加班而頻頻道歉，我看到他爽朗的神態才暫時放下久候不 至的焦慮，有餘裕打量起眼前這個人。 ※※※ 當時小黑知道體檢要驗愛滋後，先與他熟識的某愛滋機構工作 者商量，後來他們研判這是工作權被侵害，便聯絡本會，請本 會社工一起幫忙；那時距離報到期限只剩十數天。 基於對感染者隱私的尊重，在那段「危機處理」式的工作時間 內，我們都未曾見過小黑，一切的聯繫都是透過間接的轉達、 或是撥打小黑的手機。這次邀請小黑前來受訪，也是先透過居 中聯繫，取得小黑的同意，才得到他目前的聯絡方式。我僅能 透過當時的檔案記錄揣測小黑為何許人物，對他的實際樣貌幾 乎沒有概念。 ※※※
發現感染愛滋已八年，愛滋病毒似乎未曾在小黑身體上留下任 何痕跡。想起2002年，捷運公司對我們找去的立委助理說： 「司機需要較高的體格標準，所以行車人員考試的體檢，並非 特別針對愛滋感染者設限。」我再定睛看著三年後的小黑，依
舊健壯活潑，上述的官方說法便更顯諷刺。 「其實我這八年都沒住過院。」小黑說：「剛知道自己有Ｈ （HIV，即愛滋病毒）的第一年有在吃藥，可是後來，我還是很 不喜歡吃那個西藥，就沒有吃了。當然我還是有固定到醫院檢 查啦，感覺身體也都還不錯啊。」我想，在「愛滋感染者」這 個概念下，存在各式各樣不同的生命樣貌，小黑無疑是其中較 健康的。 ※※※ 2002年，小黑即將面臨三十大關，也認真思考起自己的職業 生涯，投了不少履歷。「我那時其實有其它工作，但是一直想 換一個能做久一點、可靠性高的。後來坐捷運的時候，在他們 那個跑馬燈上，看到招考司機的消息，會覺得說在捷運公司上 班，看起來是還不錯的工作。」他笑著說：「至少沒聽說過他 們會裁員。」
「然後就上他們的網站看。很麻煩咧，那個履歷表還要用他們 專門的，印出來，然後還要再寄回去。」小小的抱怨後，小黑 隨即又開心地說：「不過面試的時候那個主考官問了我很多， 我就大概覺得自己會上了。因為去報考的人都比較年輕嘛，那 個主考官問我說，會不會覺得有壓力？我說不會我還好。可能 是我這樣的回答他覺得我還滿開朗的，所以他才會覺得我這個 人ＯＫ。」 果然，小黑收到了錄取通知，內附體檢表，清楚註明必須檢查
「愛滋病」。 「你拆開當下看到說：『啊，要檢查這個。』你第一個想法是 什麼？」一旁的社工詢問。 小黑的聲調緩了許多：「我覺得，其實那時候的心情…滿複雜 的。」沉默了一陣子，又忽然提高音量說：「其實我那時候， 有想說就是乾脆去檢查。反正如果他們知道了就把我fire掉啊， 沒關係。」 我有些訝異，在現今對愛滋感染者不甚友善的求職環境中，讓 自己的身份曝光是不小的冒險。大部分的人遇到體檢問題，都 會摸摸鼻子自行放棄，犯不著為了一個工作出面爭取；像小黑 那樣願意再努力嘗試的人極少。或許強烈的求職動機混雜著不 甘心在支撐著他，畢竟都已經通過考試、正式錄取了，就這樣 放棄實在可惜。 我想知道得更清楚，就繼續問：「為什麼你會想要直接去檢 查？那是一種冒險嗎？還是一種自暴自棄就是說公司要驗就讓 你驗？」小黑回答：「應該算是冒險吧。我只是想知道，會有 規定要檢查Ｈ的公司，會怎樣處理我這個情形。其實不試試看 是不會知道的啊，他可能會排斥、可能會覺得沒什麼，就讓我 進去啊。」
「那也是我深思熟慮的結果啦，我怕到時候那個主考官就說： 『你明明知道你有愛滋，你還來考我們這個。』感覺主考官都 滿機車的。」小黑笑著說：「去面試的時候啊，有些主考官看 起來就是一臉機車樣。」 原來，光是想像這有可能發生的難堪光景，就足以讓大多數的 感染者打退堂鼓了。 ※※※ 小黑打消直接去體檢的念頭後，與本會社工間接連絡上。 由於時間緊迫，我們先尋找是否有已在捷運公司就職的感染 者，藉此打探消息，同時請市議員助理幫忙，與捷運公司溝 通。到了報到期限的最後一天，捷運公司代表才向我們表態， 明確拒絕愛滋感染者就職。 ※※※ 「那後來我通知你捷運那邊的回覆之後，你會不會很難過？」 社工繼續問。
「不會啦，因為我已經看開啦！」小黑看起來算是豁達：「我 那時候接到通知單的時候，我已經有一半的心理準備了。就是 沒有辦法進去啦！因為自己Ｈ的關係。」 小黑接續著說：「我在最後一天還沒等到你的通知，自己就有
打一通電話去問捷運人事的主管，我說我是代朋友去問的，問 說Ｈ跟那個（司機員）有什麼關係？他給我的答覆是說，如果 有發生什麼狀況的話，（感染者和乘客）就會接觸到，所以司 機員不能有Ｈ。打完那通電話後，我心裡就有個底，做好心理 準備了。」 在這一通電話上，我們看見小黑主動為了自身工作權所做的努 力。雖然仍無法更改捷運公司就職體檢的規定，對他而言，也 算是給自己個交代了；或許直到那一刻，小黑才能從拆開錄取 通知時的複雜感受中逃離，真正死心，開始調適自己的狀態。 我話鋒一轉問：「對啦，你不是之前感覺起來是有勇氣要冒 險、去衝衝看的嗎？為什麼到這邊要說是代朋友去問的，不乾 脆直接說，是你自己為自己問的？」 小黑回答：「如果是要這樣說的話，我覺得我說我是代朋友去 問，反而是給自己勇氣。」我恍然大悟地說：「是阿，否則根 本問不出口吧。」 在我的想像裡，「代朋友問」是一種迴避自己問題的問法。 「迴避」是因為自己的「問題」承載著社會污名的羞愧。但在 小黑身上，假藉「代朋友問」卻有一層積極的意義，是他在備 受擠壓的求職環境中，賦予自己勇氣的提問方式。
檢的小公司工作至今。看到他在安身立命的過程中付出的努 力，我不禁為他感到可惜－倘若小黑當初能就職於捷運公司， 現在的生活應該可以更輕鬆。 「歧視」藉著規章制度將自身合理化，造成剝奪工作權的事 實。面對這些盤根錯節的相互結盟，我們很少有條件能正面衝 撞撼動，多是見縫插針。 社工問了一句：「你那個時候有想過告捷運公司嗎？」以他這 幾年的工作經驗深知，若到最後所有的溝通協商都以失敗告 終，工作權被侵害者還能夠堅持走司法路徑提出告訴，其實是 很不容易的。 帶著一臉理所當然的表情，小黑很快的說：「沒有，因為我覺 得，我一定會輸！」社工請他說更多一點，小黑補充說：「那 時候沒有想過啦。現在問我的話我是這樣想的，因為我覺得我 一定會輸。我覺得，黑紙白字都寫出來啦，那些規定都有一些 依據啊，他拿這些東西出來，那律師看到這些東西就…。」
我忍不住插話說：「可是我們也有我們的防治條例啊，感染者 的工作權應該要受到保障啊，那也是黑紙白字啊，你覺得這比 較沒有力嗎？」講到最後，我自己也笑了出來。愛滋感染者求 職受阻的案例成千上百，卻未曾有任何學校、醫院、公司，因 拒絕感染者入學、就醫、工作而受罰。同樣是黑紙白字，在防 治條例中屈指可數的保障條款，卻幾乎淪為宣示。 小黑繼續回應我：「嗯，我覺得政府單位一定比較偏向他們
啊。」社工此時也插話：「可是法院是法院，法院不是公家機 關喔，法院是獨立的。」或許是我們有些緊迫盯人，我們又很 快澄清：「現在不是在鼓勵你提出告訴啦，現在早就已經過了 那個時間了。只是在跟你講說，每個國家的人的想法會不一 樣，像美國就是一個很喜歡訴訟的國家，臺灣又不一樣了。」 小黑：「我是覺得，算啦。我是都這種心態啦。反正我本身是 不喜歡去爭啊什麼的。反正工作再找就有啦。」這兩個「反 正」讓我更為他不平。當然我能理解在形勢比人強的時候，妥 協是重要的生存策略，但我還是忍不住、半吐槽式地促狹接 話：「可是捷運這工作聽起來是個很不錯的工作。」 小黑也直率的答道：「是啊。」停頓了幾秒鐘，我們三個人同 聲大笑。小黑有點羞赧又結巴的說：「是這樣子講沒有錯啦。 可是、也許真的啦，比這個工作條件好的工作大概沒幾個。但 是我覺得，我做工作我也不喜歡說綁手綁腳什麼之類的，剛好 現在這工作，雖然很呆板啦很乏味啦什麼的，可是至少我認為 這工作，薪水方面我也ＯＫ，環境我也覺得好。雖然跟捷運 公司比較起來真的差滿多的，可是可以過得下去就好了啦。」 他最後也半開玩笑的小結說：「我沒有什麼大志阿什麼之類 的。」 什麼樣的社會機制，讓一個人最後要自嘲自己「沒有什麼大 志」？
作機會，是臺灣愛滋感染者的鬱悶。「愛滋病」是一種「社會 病」，對感染者實質的影響是一組「失志症候群」。 ※※※ 在小黑個人層次的協商告終後，社工得到他的同意，以行公文 不提及個人基本資料的方式，繼續請捷運公司回覆。這是為了 以後可能報考的感染者朋友著想，小黑不被錄用的事實卻已經 無法彌補。我對小黑簡要說明這段公文往返的經過： 2002年7月，本會社工發文給捷運公司。這份公文說明愛滋 病毒的傳染途徑，重申一般的接觸並不會造成乘客的感染。 當月捷運公司回文，說明依法他們有權自訂體檢規則，並由 於愛滋病為法定傳染病，愛滋感染者本來就不適合任職運輸 業。 2002年10月30日，本會理事長張維在一場研討會中談到 小黑的遭遇，並獲得平面及電子媒體競相報導。捷運公司總 經理透過媒體表示：「法規是原則，而捷運屬大眾運輸事 業…，捷運公司不希望同仁成為疾病散播員。」以及強調： 「立法保護弱勢族群是必要的，但不能因此危害大眾。」註一
2002年11月1日，臺北市勞工局長鄭村棋判斷此乃就職歧 視，主動找來勞工局、交通局、衛生局與捷運公司代表，召 開會議。決議：「拒絕愛滋病患就職乙案確定已涉嫌就業歧 視。」註二隔日（11月2日），捷運公司總經理即在媒體上承 諾將放寬標準，讓感染者能從事「不影響他人」的職務，包
括司機員。註三 2002年12月，本會將上述勞工局的會議記錄寄發交通局和 捷運公司。捷運公司在月底回覆，再次強調公司有權自定體 檢規則，重申愛滋病為法定傳染病，但由於勞工局持不同意 見，會同意依照指示，修訂體檢標準並報請市政府核備。 2004年7月，本會行公文詢問捷運公司就職規定的修訂進 度，月底捷運公司回覆，解釋他們即將召開討論會議，進行 修訂，完成之後會再回覆本會。延宕至今，尚無下文。註四 ※※※ 在我唱作俱佳演完這一大串公文往返的傳奇之後，社工深深的 吐了一口氣，笑著說：「很恐怖喔？從2002年7月…」小黑哭 笑不得的接著說：「直到2005年，竟然還沒有結束。」 社工繼續說：「所以這後面這部份，我都比較沒有跟你講啦， 你聽了這個過程後，你有什麼感覺？」
小黑說：「也是平常我們所知道的那一些，政府機關在做什麼 的時候，都會一拖再拖，反正能拖就盡量拖，不想面對這種事 情。如果說答案是否定的話，事情又會爆發出來；如果是肯定 的話，政府單位可能又說你怎麼會讓這種事情ＯＫ，不管怎樣 怎樣都會有問題，所以能避的就避。」我想小黑真的很瞭解公 部門對愛滋議題常有的態度。
社工一時興起的說：「我問你喔，當初Ｐ跟你講說要來找我的 時候，你有想過這件事情會這樣咚咚咚跑這麼久嗎？」 小黑：「沒有，聽你們剛剛這樣子講說，喔什麼交通局啊、衛 生署，我都沒有想過有經過那麼多單位這樣。我忽然、感覺自 己忽然變成一個偉大的人。」我們大笑，他繼續說：「讓這麼 多單位知道，有這種事情發生。」 社工：「也不能說只因為你啊，你是一個、就是幫我們起個 頭。可是我們也相信有其他人會遇到同樣的問題。」 ※※※ 凡是在找工作的愛滋感染者，都會普遍遇到求職體檢的問題， 倘若早知道體檢項目中有愛滋，不會有誰想多花力氣去應徵。 我好奇小黑當初怎麼看待這個工作機會。我問：「你難道沒有 想過捷運公司的體檢會驗愛滋？」 「有啊！我有想過要體檢，但我沒有想到他連Ｈ的部分也要知 道。因為我覺得這是一個沒什麼關係的東西。沒想到應徵司機 也會被要求不能有愛滋。」小黑說。
後來針對此事的公文往返中，捷運公司是這樣回應的：「本公 司為交通事業單位，基於捷運系統之維護及營運皆與旅客安全 息息相關考量，故大眾捷運法對本公司新進行車從業人員必須 辦理『行車人員技能體格檢查』之強制性規定，且檢查項目須 完全合格方可進用。綜合以上說明，本公司礙難進用愛滋病感
染者，尚請見諒。」 註五這也是我們替感染者朋友爭取工作權， 行文詢問公部門時，最常見熟悉的回覆。 愛滋感染者從事運輸業，是否真如捷運公司總經理的說法，會 成為「疾病散播源」？事實上，一位擔任捷運司機員的愛滋感 染者，其血液中的病毒要傳染給乘客，只有在「捷運發生嚴重 意外，乘客與司機『剛好』都有可見、正在流血的大面積傷 口，且『剛好』司機的大量血液滴在乘客傷口或兩人傷口直接 碰觸」的情況下，才有可能造成感染的事實。 捷運公司認定，不常和旅客互動的司機員感染愛滋，就會危害 旅客安全，又該如何看待臺北縣市近三千名的愛滋感染者註六？ 是否要禁止他們搭乘捷運？倘若捷運公司已對愛滋的傳染途徑 有基本認識，知道在車廂內的互動是安全無虞的，卻仍以「大 眾安全」之名，無限上綱地想像各種傳染可能，就凸顯了這種 排除與隔離的本質，是純粹的歧視。 ※※※ 當初邀請小黑，我一度擔心他早已忘卻此事。畢竟對他來說， 這可能只是三年前的一段不甚愉快的回憶，不一定在他的生命 中留下太深刻的痕跡。但是一路談下來，顯然許多細節他是記 得的。
到底小黑現在是怎麼看待這段往事的？他的回話讓我印象深 刻：「沒有啦，我覺得這事情，對我來說啦，其實說沒有那麼 在意的話，這樣說是騙自己的。」他緩緩的說：「其實我還是
▍註釋 註一：聯合新聞網 91.10.31。 註二：北市勞二字第09134934000號文，附件會議記錄。 註三：中央社新聞2002.11.02。 註四：直到本書完成（2006年）時，捷運公司仍未更換內有「愛滋 病」字樣的體檢表。 註五：引述自中華民國九十一年七月二十九日，北捷人字第 09131241500號公文第四項說明。 註六：至2005年終，通報至疾病管制局的累計數字。
Chapter 4 俊明的故事：醫院不能有愛滋大夫？ 2002年， 某醫院於員工體檢時，未取得同意 逕自為一名員工俊明（化名）檢驗愛滋， 經歷與院方協調會的破裂與訴訟糾纏， 至今俊明仍在無限期停職中……。
俊明與本會社工，經過三年多來的合作，已算是對彼此有一定 程度的熟稔。他曾以「臺灣版的費城註一」來形容自己的故事， 希望在訴訟結束、結果確定之後能找記者來書寫他的故事。因 此，一知道本會計劃要呈現愛滋感染者的工作權受損現狀，他 在電話中如我們預期地滿口答應受訪。 數日後，我與社工依約前往俊明夫婦的住宅，四個人在客廳席 地而坐，面對一桌的紅蟳與臺灣啤酒，邊啃邊聊到天黑。 ※※※ 俊明說話的速度很快，對答如流又活潑，他不以黏附在愛滋上 的汙名歧視來看待自己，他說：「我根本不覺得愛滋是個大 病，因為我覺得它可以控制，就是生病而已嘛！跟Ｂ型肝炎差 不了多少啊。Ｂ型肝炎也是同樣傳染途徑，一模一樣。」他俏 皮的說：「我現在不是活得很好？我又健康又活潑又可愛。」 也正是因為愛滋「就是生病而已」，俊明自然認為醫院院長不 讓他看診是不合理的。他說：「我住院完了我出院、我病好了 我就是要繼續看門診，恢復工作啊！」
我們都好奇他何以能如此看待愛滋，就更往前追問，想暸解他 在知道自己感染之前，對愛滋病的想像、對感染者的態度是怎 樣？
診，照樣看他。我甚至於跟那個護士說，我不需要知道這個病 人名字，因為知道他名字，可能我就會有點像一般人一樣會怕 他。」俊明直接了當地說：「我乾脆就不知道，就是一般一 樣，因為我知道這樣不會傳染，你們全部都是一般病人。」 「傳染途徑就性交、血液嘛！你看門診的時不會有血液交換， 更不可能性交的，你不會怕也不需要怕他。」俊明說完，我們 都跟著他笑了。的確，以醫生在診間能做的各項處置來看，只 要遵守一般的標準程序，是不需要對感染愛滋的病人特別小心 或害怕，反之亦然註二。然而，俊明卻因感染愛滋，而遭到院長 勒令停診，轉調去管理病歷。 ※※※ 2002年的某個夏日清晨，一如往常，俊明在院內診間正為當日 的看診作準備。檢驗科的主任突然出面，告知俊明其愛滋檢驗 結果確定為陽性（即感染愛滋病毒）。當日中午門診結束後， 副院長旋即命令俊明當日起停診。
那時俊明已出現免疫力降低所造成的伺機性感染註三，數日後就 住進另一家醫院，在穩定服藥、治療一個月後出院，愛滋病毒 數量已減低至測不到註四。之後俊明又調養了一個月，自認已經 可以回到工作崗位，他向院長請求恢復門診，院長卻遲遲不願 意放行。 院長行公文詢問疾病管制局，想藉此名正言順地阻止俊明看 診。疾管局的公文回覆：「由於醫療人員將愛滋病毒傳染給
病患的機會相當微小，且基於維護人權及尊重醫療人員專業考 量，不應限制醫療人員的職業。」註五然而這份公文並沒有幫助 俊明恢復門診工作，院長又延宕了三個多月。 年底，院長突然告訴俊明他接到病人眷屬的威脅：「要是院方 接受『愛滋病的大夫』看診，就要找SNG車訴諸媒體！」看到 院長的堅決態度，以及自己的疾病隱私不知為何被四處散佈， 俊明下定決心要爭取屬於自己的權益，後來上網找到了愛滋感 染者權益促進會，與我們聯繫上。 ※※※ 俊明的太太在旁說：「那天俊明聽到院長的答覆，呆坐在客廳 一整個下午不能自己。」 「那個時候真的是慌了，」俊明回憶道：「院長一直騙我，叫 我再休養一段時間，結果他到年底說：『只要我當院長的一 天，你都不可能回來看診。』我那時候才警覺，我好像真的不 能回去看診了，我一直不相信他會這樣對我。」 社工說：「我記得當初你打電話來的時候，其實你的那些情緒 跟愛滋的關係不大，反而是那種…被背叛的難過。」
俊明馬上回應：「對！我就是覺得他背叛我。愛滋沒傷到我， 我是被他傷到了。」俊明與院長多年親如兄弟般的情誼，就在 院長對愛滋的恐懼中，毀於一旦。
在刻板印象中，醫護人員理應對愛滋病是最為了解，但俊明向 我們解釋：愛滋在臺灣也僅僅約二十年，老一輩的醫護人員在 學時，是完全沒有愛滋病這個名稱的；若不再進修，就跟一般 人完全一樣。而院長對愛滋的恐懼甚至可能超越常人，才會枉 顧情誼，斷然作出這個錯誤的決定。 ※※※ 2002年年底，俊明的太太來電與我們連絡，本會社工開始介入 此事。 一開始我們嘗試先與院長連絡，但馬上碰壁。當月打了四通電 話並留言，卻未有任何回覆。社工於是擬了份公文，正式要求 會面，同時再次致電醫院，請秘書轉告院長；在俊明夫妻倆看 完覺得沒問題後，當日公文就以雙掛號、密件方式寄出。在最 初的溝通階段，我們總是小心翼翼的期盼，侵權事件能在員工 與雇主的相互溝通中就得以解決。
三天後，院長終於致電本會。我們趁機在接下來的聯繫中，敲 定協調會的日期，希望藉此讓院長與俊明雙方有機會能表達彼 此的想法，並討論讓俊明恢復工作的方式。另一方面，本會社 工與理事長在疾病管制局會議中，以臨時動議的方式提出俊明 的狀況，最後局長責承某資深組長，以疾管局代表的身分陪同 本會與院長協商。 但協調會最後是破裂了。
※※※ 由於疾病管制局在2002年七月回覆院長的公文中，支持俊明可 以回來工作，社工才會想先召集一個協調會，也請疾管局的人 一起來，私下先談看看。 想不到，疾管局代表到場的發言，卻完全與我們所想的不同， 反而勸起雙方要各退一步，藉此息事寧人。他說：「衛生署愛 滋防治小組的決議在目前臺灣社會實行仍有困難。」即便國外 的法庭傾向讓感染者恢復看診，他仍堅持：「在國外有感染愛 滋的醫師可以看診，在臺灣的環境不一定適用，反歧視法應該 被放在最後討論，講這些目前無法實現的東西，無助於事情的 解決。」 俊明在中途就憤而離席，他補充說：「那天院長說等個兩年 後，我先去管病歷，等我休息夠了、事情淡一點，他就會讓我 看診。那組長馬上說：『對嘛，你給他一點時間嘛！』我就聽 不下去摔杯子走人了。」 協調破裂使得社工與俊明認真地考慮要不要走訴訟，而破裂很 大的原因是主管機關代表在場的不表態，默認容許了對愛滋感 染者不合理的歧視。這種「消極的不作為」實質上是將基本人 權買賣打折。
※※※ 試過各種方法，再往下走，似乎只能考慮訴訟一途了。 我們寄出兩封存證信函給院長，重複聲明：「一、尊重隱私 權，停止散佈俊明的感染事實；二、保障俊明應有的工作權， 在他已承諾不進行侵入性醫療程序的前提下，恢復俊明的看 診。」這些請求，不過就是憲法所保障的「基本人權」。 存證信函甫一寄到醫院，秘書室主任就出現當說客，語氣強硬 地表示院長有權調動俊明的職位，若不接受，院長有正當理由 指控俊明曠職。秘書室主任的出現，不但傳達了院長無意讓俊 明恢復原職，更顯示院長再度將俊明的隱私資訊告知非相關的 第三者。 盼不到友善的回應，俊明夫妻二人與律師商議後，決定提出訴 訟。愛滋感染者以司法程序爭取自身的工作權，俊明的案子是 亞洲第一例。
※※※ 2003年五月，俊明同律師遞出訴訟狀，主要是走刑事（不當 散播隱私）與民事（隱私與工作受損的賠償）兩條路徑雙管齊 下。 同年九月，第一次刑事庭開庭，我們申請秘密審理。檢察官事 前並未傳喚俊明，但由於他原告的身分，他仍可入場旁聽。俊
明印象非常深刻，檢察官知道他是原告後，嚇了一跳說：「沒 有叫你來你怎麼來了！你不知道會傳染給人家？啊，你既然來 就算了！」 俊明感嘆：「你會感受很深，理論上他也是高知識份子，他怎 麼會講這種話？這個病他是不了解的，他只是一般人，就只說 會傳染。我覺得我又被傷害一次。」不過至少當場俊明還是挺 住了，沒有表現得太挫敗。他馬上站上了教育者的角色，對 著檢察官上課：「我跟他講怎麼傳染、講病毒量、講CD4 註六。 我跟他說不是這樣傳染的，要是這樣，那我們的律師也就完 啦。」 在俊明身上，我們看到作為自身權益的爭取者，同時也要是社 會大眾的教育者。在爭取權益的過程中，必須不厭其煩地反覆 教導、倡議，讓更多不懂愛滋的人能了解這個議題。事實上， 俊明的律師一開始也不了解愛滋的傳染途徑；但一路下來，越 來越清楚限制感染者看門診的荒謬之處，在法庭上的立場也越 來越堅定了，後來更主動以較便宜的收費標準，作為對俊明的 支持。 然而，第一次出庭的插曲，似乎預示了這條訴訟之路，會比想 像中更艱困難行。
滋感染者的患病成為公司內部的流言蜚語，逼迫感染者主動離 職，使得工作喪失。因此，實際上要保障愛滋感染者的工作 權，對其隱私權的維護就必須周密。 俊明才剛得知自己感染，他的某位病人（也是院內員工）當日 立即取消手術。檢驗科主任、院長、副院長、秘書室主任，最 後傳到許多病人家屬耳中，彷彿所有人都已知道他的感染事 實。雖然我們後來知道是院長主動告知，卻沒有人能願意出面 指證。以至於院長可以使用「沒有護理人員願意跟診」與「民 眾的抗議」，來解釋，為了避免造成俊明的二度創傷，基於保 護俊明的立場，不會讓他回來看門診。 當日馬上取消手術的那位病人，在法庭上表示說病已經好了。 即便我們最後依據病歷紀錄澄清並非如此，刑事庭的檢察官卻 認為，病人有自由就醫的選擇權，臨時取消並不能證明俊明感 染愛滋的消息已曝光。反而在判決書中寫下：「是否為俊明本 人多心，自以為他人均投以異樣眼光，造成心理障礙，亦未可 知。」 若無法找到一名醫院員工，能出面指證院長洩密，就不可能繼 續告訴，況且最後很可能責任會被推給一個小檢驗員了事。於 是，隱私被侵害雖然已成事實，卻無人可告、無法可保障。 俊明的故事：醫院不能有愛滋大夫？
※※※ 我們思考走另一條路徑，想證明整件事的通報流程是錯誤的。 按照防治條例的規定，醫事人員在發現感染者後，依法應先向
衛生主管機關通報。一般醫院的呈報人或者是檢驗員、或者是 檢驗科主任匯集人數統一通報，未曾有聽聞哪一家醫院的做法 是向上呈報給院長的。 院長並非衛生主管機關、也非因業務相關而得以知悉，院長知 道俊明感染愛滋的事實，於法是侵犯隱私的。 地方法院於是行公文，詢問疾病管制局個案通報的做法：究竟 是檢驗科直接通報給衛生主管機關？還是要先通報給院長、 請院長代為通報？2004年6月，疾管局回覆的公文再度模稜兩 可：「依法未規定通報要由院長進行，但各醫療單位可自訂 內部之通報流程，惟通報衛生主管機關時程不得超過二十四小 時，且應受後天免疫缺乏症候群防治條例第六條之規範。」 這樣的回覆有內在的矛盾。若以防治條例第六條保障隱私的精 神為考量，在醫院通報感染者的資料給衛生主管機關時，中間 經手的人員自然是越少越好。疾病管制局允許各醫療單位可 「自訂」內部的通報流程，就等於接受檢驗科可以通報感染者 的資料給院內任何單位。依此回文，檢察官便判定院長、副院 長等人知悉俊明感染愛滋一事並無不妥，枉顧這種做法實際上 已嚴重侵犯俊明的隱私及工作權益。
圖，蓋有「感染控制委員會」的章，斗大的字樣顯示委員會需 要通報「院長室」。這份文件在之前的法庭辯論中從未出現， 俊明身為感控委員，也不知道此流程是何時制定的。面對我們
對文件真偽的質疑，最後地院的刑事裁定認為：若認為證物有 經偽造、或證言有虛偽之情形，自應証明確有其事後，另起一 案再行起訴。 關於俊明的隱私不當被洩漏，刑事庭最後的結論是：不論是否 醫院內部全都知道俊明感染愛滋病毒，這仍與何人洩露尚無直 接之關係；同時，通報流程中所經過的部門太多，有無相關人 員會將俊明的資料口耳相傳，不得而知。 院長、副院長有權知道俊明感染愛滋，法庭上也難以證明他們 不當洩漏了俊明的隱私。對所有的感染者而言，這個判決敲響 了隱私權的喪鐘。 ※※※ 愛滋醫護人員的工作權為何？將俊明從看診轉調至病歷管理， 是否恰當？從國內衛生署的公文，或是國外的判例、醫學資訊註 七 ，都傾向讓感染愛滋的醫護工作者繼續留在原職；對於「醫師 傳染愛滋給病人」的風險從來都禁不起科學的檢證，更是缺乏 實例。社工曾寄信給何大一博士註八，詢問他對本案的立場。何 大一回覆：「我的立場相當清楚，與台灣衛生署疾病管制局相 同。感染HIV的醫護人員不能僅因為他們感染愛滋而失去或轉調 他們原有的工作，這也是美國疾病管制局的立場。」註九 俊明的故事：醫院不能有愛滋大夫？
尚未進入訴訟之前，俊明也在協調會上承諾會遵守衛生署的建 議：不進行「易曝露的侵入性醫療程序」。事實上，在診間看 診是不會動「手術」的，所有能進行的都是屬於非侵入性的
「處置」 註十。依照2005年六月美國臨床傳染病期刊上的最新 資訊，愛滋醫師甚至可以進行某些手術，以俊明執業的科別而 言，所有的手術都是可允許的，門診自然更不在限制的範圍。 然而在法庭上，對方卻有反覆陳述另一套說辭。訴訟已經進行 至今近三年，對方律師仍堅持20年前的錯誤知識，強調口水 會傳染愛滋，就醫病患安全不保，俊明若要看診，必須穿上全 套防護衣，如此將無病人敢給俊明醫病，也會連帶影響醫院營 運。法官在2005年做出的判決也同意對方律師的說法，認為： 由於俊明必須穿戴「手套、口罩、眼罩、隔離衣」等「全面防 護」，手術精確度必將受到影響，因此「基此公共利益之考 量…調整職務為無需任何防護裝備之病例審查，並未影響其工 作機會。」 法官以為俊明需要穿戴「手套、口罩、眼罩、隔離衣」才能看 門診，顯然已對愛滋病毒的傳染途徑有錯誤理解。才會做出判 決，認為俊明看診會對「公共利益」造成危害，因此轉調職務 並未侵犯俊明的工作權。 看似「純科學」的問題，總是與社會、政治力糾纏在一起。 ※※※
在醫院正對面，看是不是真的像他講的那樣。」 「要叫我去作病歷審查的工作，等於是就叫我算了；我是不服 氣的。一個當然是我自己的權益，另一個是後來我跟你們接觸 多了、看多了臺灣的狀況，我發現我還要幫其他失去工作的愛 滋病患，要爭取一個東西。」俊明說：「因為沒人打得起這種 官司。連我都打成這樣，留給別人去打第一關真的太難了。」 俊明背後有太太與小孩的力挺到底，他的原生家庭也支持這場 官司。除此之外，本會的工作人員，以及我們找來的諸多專家 學者，這些人形成了龐大的網絡，或多或少在這場戰役中參與 幫忙。金錢時間的耗費、出庭遭遇到種種不堪的對待、以及本 會與俊明雙方辛苦地對各種醫療資訊進行搜集佐證，真讓人覺 得很少有人能打得起這種官司。 俊明的太太忽然想起一個經驗，對著社工說：「我有次去權促 會，有一個小朋友，學校不要他嘛。那次你跟他聊天我都有聽 到，後來我也有跟他聊。」她邊說彷彿又歷歷在目：「他是在 權促會有一點溫暖，可是他走出那個電梯呢？他爸媽不要他， 學校也不收他，他根本就沒有地方可以去啊！」 俊明也點頭說：「想像孤身一個人的那種光景，很讓人難受， 她（指著太太）回來跟我說這件事，那兩天我都很難過。」 俊明的故事：醫院不能有愛滋大夫？
俊明的太太繼續說：「我一回家就一直想到他，他年紀就跟我 們小孩一樣，我真的把他當自己小孩這樣。今天不管他是怎麼 感染，畢竟是生病了，他爸媽還不要他。你看我現在還是想到
那個情景。我一想到那小孩就跟他（俊明）說，我說你現在這 一段很重要，官司要好好打，當初也是權促會幫你走出來嘛， 你這邊打好，再回到權促會幫忙，先是工作嘛，再來是就學權 什麼的……。」 她一口氣講完，喘了一口氣說：「至少對我來說啦，我想那小 孩是我支持他（俊明）訴訟一個很大的動力。」 有更多在同樣歧視機制下的受害者，雖然沒有條件能站出來， 他們的故事卻厚實地積澱、成為俊明夫婦堅持走下去的動力。 他們夫婦兩人都清楚意識到，這場官司已不只是要為自己爭一 口氣、發生在自己身上的經驗也不只是「自己的故事」，其實 是具體而微的揭示了普遍發生的不公義現狀。 ※※※ 俊明：「我兒子跟我講一句話：『現在這個官司不贏，20年後 還是會贏，20年後這個知識絕對很豐富了。』你看我兒子講這 種話，多貼心的小孩子。」而我則衷心希望，感染者的工作權 捍衛之戰，不用等到20年後才能打贏。
▍註釋 註一：費城是一部電影，內容描繪一位愛滋感染者為了工作權出面 打官司。 註二：病人傳給醫生的機率比醫生傳給病人的機率高得多。 註三：免疫力降低後，容易感染平常不易感染的病。 註四：儀器量測病毒有其最低值的限制，一般按時服藥的感染者， 體內的病毒量偏低，甚至有可能低到測不到。一般愛滋篩檢 是檢驗抗體（而非病毒本身），因此，雖然健康的愛滋感染 者血液中幾乎找不到病毒，卻仍會在職場體檢中被檢驗出 來。 註五：會議紀錄此項全文如下： 提案一：有關醫療人員感染愛滋病毒，是否適合繼續執業或 限制其執行部分醫療程序。 決議：醫療人員應確實遵照感染控制程序，執行全面性保護 措施（universal precaution）。由於醫療人員將愛滋病毒傳 染給病患的機會相當微小，且基於維護人權及尊重醫療人員 專業考量，不應限制醫療人員的職業，但建議當事者不進行 易曝露的侵入性醫療程序。醫療人員就業權應予尊重，且個 人傳染病相關資料應予保密。 註六：CD4是免疫力的指標。 註七：俊明找了一百多個網頁後，在馬里蘭醫學中心網站上發現資 訊。 註八：治療愛滋病的權威。 俊明的故事：醫院不能有愛滋大夫？
Chapter 5 結論 在看似屬於個人的故事裡， 往往都有制度與結構性的問題……。
[工作權合併隱私權被侵犯] ‧維護隱私權的重要性 已就職的愛滋感染者，在工作權被侵害的同時，通常也伴隨 個人隱私的曝光；如同在本書中，阿祥與俊明都是才剛發現 自己感染愛滋，風聲就很快在職場上傳開。不安與氣憤，加 上必須承受來自同事的異樣眼光，即便沒有上級的離職命 令，也往往迫使感染者自動辭職。 對於愛滋感染者而言，只要感染愛滋病毒一事曝光，後果都 直接影響了他們的工作權益，因此，要維護愛滋感染者的工 作權，就不能不重視對其隱私權的保障。在本會工作權的案 例中，最常見直接侵犯到隱私權的機制便是體檢。
‧體檢藉由強迫曝光成為一種歧視 在進入職場、加薪升遷的職業生涯中，體檢究竟扮演了什麼 角色？體檢在什麼時候有可能成為一種歧視？ 一般而言，職場上的體檢目的有二：一、體檢作為預防應徵 者健康受損的機制，藉此篩檢出特定體質的人，避免因特殊
的工作環境而被誘發疾病。二、體檢是公司有效投資人力訓 練成本的指標，基於整體獲利的經濟考量，避免員工因病離 職或工作效能不彰。 就此而言，我們要說，愛滋病並非職業病，愛滋感染者只要 定時服藥、回診檢查，免疫功能可以與常人無異，病毒數量 也會減少，甚至量測不到。雖然本會並不贊同成本算計優於 員工福利的管理思維，但即便依此邏輯思考，愛滋在臺灣已 是可控制的慢性病，因發病而無法工作的可能性非常低。因 此，本會認為，不論是就職體檢或是員工健檢，都不需要檢 驗愛滋，更不應以愛滋為任用升遷與否的標準。 2004年，民航局消防技工甄試體檢規定「Ｂ型肝炎表面抗 原陽性者」不得參加考試，Ｂ肝帶原報考者群起抗議，一時 引發社會議論。法界人士認為民航局所謂「擔憂集體感染」 和「體力無法負荷」都沒有科學證據支持，「恐引起共事者 恐慌」更是民航局內部員工教育的問題，「不能將自我行政 上的方便，建築在犧牲Ｂ肝帶原者的考試權上」。註一臺北市 衛生局認為民航局此舉已違反《傳染病防治法》第十二條： 「對傳染病病人非因公共防治要求，不得拒絕其就學、就業 或予其他不公平之待遇。」發函要求限期改善。註二最後民航 局在各界壓力與交通部長指示下，取消Ｂ肝限制，重新辦理 Ｂ肝帶原考生補報名。 醫學界早已證實，愛滋與Ｂ型肝炎病毒的傳染途徑完全相 同，Ｂ型肝炎病毒的傳染力其實更勝於愛滋病毒。然而，相 較於民航局快速取消限制，臺北市捷運公司至今註三卻仍未給
愛滋感染者一個公平的求職機會，這也是臺灣目前一般公司 的現狀。 由於民航局排拒Ｂ肝所引發的爭論，2005年年終，考選部也 開始大幅度地放寬體檢規則註四，對此我們樂觀其成。希望在 這一波的討論中，以體檢之名、行歧視之實的體檢規定，能 夠確實被移除。
[被排拒在職場外的愛滋感染者] 。私部門自訂排拒愛滋感染者的人事規章 在私人公司的愛滋感染者，當遇到工作權被侵害或被剝奪 時，通常會選擇直接放棄工作機會與職務。私部門不像公家 機關，必須在形式上重視人權、遵守政策法規對愛滋感染者 工作權的保障，私人公司管理者常以內部人事規章為由，透 過上級約談，請員工自行辭職。 在本會的經驗中，大型私人企業較不敢粗暴處理員工的權益 問題。以便利商店店員阿祥為例，他在感染愛滋曝光後，經 理起初以「優退」勸說阿祥離職，在本會介入後，公司更加 害怕事情鬧大，才決定讓阿祥繼續工作，稍微平息風波。相 較於此，本會也曾遇過，在小公司工作的員工，被老闆更直 接的命令：「交一份體檢證明，否則請你馬上離職，不發本 月薪水。」在這種處境下，感染者很難和公司談條件。
這些被侵權的愛滋感染者會認為：不要跟整個公司鬥，工作 可以另外再找。他們多半就無意爭取留任原職，在取代性高 的低階工作間替換，造成他們在職場生涯的不利處境，自然 也不會與本會連絡。對於他們的真實遭遇，我們難以呈現， 只能藉由阿祥的故事管窺一二。
‧公部門以法定傳染病為由，排拒愛滋感染者 如同捷運公司對本會公文的回應，一般公家機關排拒愛滋感 染者的理由是：愛滋病是法定傳染病。 1987年4月，衛生署的後天免疫缺乏症候群防治小組決議， 在《傳染病防治條例》之外，另立一法，以利愛滋病的防 治。同年11月，當時的衛生署長在立法院報告時解釋：「傳 染病防治條例所規定之法定傳染病均為急性疾病，潛伏期 短，傳染途徑多為飲食、空氣、病媒傳染，…而後天免疫缺 乏症候群為慢性疾病，潛伏期長，感染途徑主要為性行為及 血液傳染，…故與法定傳染病防治之方法不同，因此特別單 獨立法。」從這段發言可知，愛滋病與其他法定傳染病註五的 差異昭然若揭，許多在《傳染病防治條例》中，針對法定傳 染病的防治措施也並不適用在愛滋病上。 後來重新討論並擴增法定傳染病的範圍後，愛滋便被疾病管 制局算作「第四類」註六法定傳染病，雖然其立意是為了更進 一步監控與管制疾病，卻使得許多人誤以為愛滋需要隔離， 將愛滋與其他急性傳染病劃上等號，造成不必要的恐慌。
另外，雇主也能靠著設立「拒絕法定傳染病」的用人規章， 一併排除了愛滋感染者。如同捷運公司總經理在媒體上所說 的：「罹患法定傳染病者均不宜擔任司機員，並非僅針對愛 滋病患…如同餐飲事業也會要求員工不能得肺病。」將「愛 滋病」與「肺病」這兩種傳染方式完全不同的疾病相提並 論，是一種謬誤。更重要的是，並非所有罹患法定傳染病的 人都不適合擔任司機員。 根據《公務人員考試體格檢查標準》的規定，「患有法定傳 染病未經治癒，且須強制隔離治療者」才是體檢不合格。許 多公家機關雖然沒有明確寫出排拒「愛滋病」，但卻一股腦 將所有的「法定傳染病」都列入體檢不合格，忽略了愛滋並 非「須強制隔離治療」的疾病，並不會對職場或公眾安全造 成威脅。一味地強調愛滋病是「法定傳染病」，需要「治 癒」否則不予聘任，這是選擇性的使用法條，造成了愛滋感 染者不合理（非因客觀科學證據）的被拒於職場之外。 顯然，愛滋病被算為法定傳染病，不但無助於防治工作，反 而助長了侵權事件。
‧排拒背後的理由 我們看到，雇主常常任憑想像，以為愛滋感染者員工會對 公眾安全造成危害：捷運公司強調運輸業須考量「乘客安 全」、醫院則以「病人安全」為由，試圖削弱《後天免疫缺 乏症候群防治條例》的就職保障。然而，這是沒有任何科學 根據的擔心，以愛滋病毒特定的傳染途徑，這些關於公眾利
益的「危害」，事實上並不存在，自然就不需限制愛滋感染 者的職業。 雇主或許暸解，愛滋是一種傳染力、傳染途徑有限的病毒， 卻仍然會認為：「為了避免社會大眾的恐慌，感染者現階段 在臺灣仍不適合從事與人群接觸的工作，因為社會大眾有 『免於恐懼的自由』。」然而，對愛滋的「恐慌」不正是愛 滋教育需要努力破除的嗎？以避免恐慌為由，不合理地限制 感染者的工作，是犧牲愛滋感染者的工作權，反而回過頭來 鞏固社會大眾對愛滋的恐慌。 這些諸多看似言之成理的說法，實質上都是嚴重的歧視。不 論是勸退或是調職，皆是對個人工作權的剝奪。
[現行條例無法保障感染者的工作權] ‧法律位階的混肴 就公部門回文的適法性來說，其實也有問題。我們都知道法 律有其位階：憲法最高、其次是法律（特別法又高於一般 法）、最後是行政命令。當公部門以自訂的體檢規則排拒愛 滋感染者，即是行政命令與特別法的相互抵觸，行政命令 （體檢規則）當屬無效。 本會以《後天免疫缺乏症候群防治條例》第六條之一：「感
染人類免疫缺乏病毒者之人格與合法權益應受尊重及保障， 不得予以歧視，拒絕其就學、就醫、就業或予其他不公平之 待遇。」行文臺北市捷運公司，卻得到捷運公司以自訂的 《臺北市大眾捷運系統行車人員技能體格檢查規則》中列有 「法定傳染病」作為回應。「防治條例」與「捷運體檢規 則」在法律位階上是不對等的，自然難以成為拒絕愛滋感染 者就業的理由。
‧《後天免疫缺乏症候群防治條例》宣示意味濃厚 1990年在立法院討論立法防制愛滋，當時愛滋病在臺灣仍被 視為一種無藥可醫的嚴重疾病，沒有人認為「病患」也會需 要工作權，僅就保障隱私權的部分加以規範註七，對愛滋感染 者工作權的保障則付之闕如。後來在1996年防治條例修訂 時，權益促進委員會（本會前身）便開始積極介入，本會的 感染者朋友至立法院現身說法，重申保障愛滋感染者各項權 益的重要性。多方角力下，才有了稍微重視感染者合法人權 的第六條之一。 《後天免疫缺乏症候群防治條例》第六條之一：「感染人類 免疫缺乏病毒者之人格與合法權益應受尊重及保障，不得 予以歧視，拒絕其就學、就醫、就業或予其他不公平之待 遇。」是唯一有明文規定保障愛滋感染者工作權的條款。 儘管在臺灣的愛滋感染者有看似保障工作權的法規，不過事 實上，作為一個特別法，防治條例並沒有發揮該有的保障功 能。在俊明的訴訟案中，眾多友善律師都很清楚的表示：
「《後天免疫缺乏症候群防治條例》中，第六條之一對工作 權的保障規範太過籠統模糊，無法成為起訴的依據條文。」 自1997年此條款三讀通過至今，雖然侵權事件一再發生，卻 沒有任何一間公司因為排拒愛滋感染者工作而受罰。我們看 到此保障條款已經淪為宣示性質濃厚的條文，不具法律規範 之效力。
[主管機關對感染者工作權的立場] 疾病管制局作為愛滋相關事務的主管機關，通常在侵權事件發 生後，僅重複宣示第六條之一的條文以表明立場，卻鮮少積極 介入，主動保障愛滋感染者的工作權益。 以小黑在捷運就職體檢遭到排拒一事為例，疾病管制局便不願 直接指出捷運公司此舉已然違法、更遑論進一步督促捷運公司 修改體檢規定。反而是北市勞工局，快速的開會處理此事，並 認定為就職歧視，要求捷運公司改進－做出正確的判斷、不在 人權議題上含糊與妥協，正是我們對政府機關的期待。可惜的 是，捷運公司一案，缺乏強大的輿論壓力和不見主管機關後續 的長期關心，捷運公司就得以延宕至今，仍不願修改體檢愛滋 的規定。 在俊明的訴訟案中，疾病管制局代表的息事寧人、不願表態， 是俊明需要大費周章進入訴訟程序的主因，這種搖擺不定的立
場，後來也直接影響了我們在法庭上的論辯居於劣勢。例如該 局回覆法院的公文中，表示「不反對」醫院內部可以「自訂」 通報的流程，此舉明顯違反了對愛滋感染者隱私權的保障，使 得俊明服務的醫院得以據此支持院內隱私曝光的合法性。 疾病管制局一方面推廣「去汙名、反歧視」，聲稱愛滋感染者 的權益必須要被保障；但另一方面，在實際的侵權事件中，卻 往往扮演被動的角色，不願主動介入，曝露了該局仍以「防堵 為先、權益次之」的思維對待愛滋感染者。即便有感染者申 訴，往往也僅換得籠統的法條宣示，甚至出於不願得罪其他部 門機關的心態，其公文中的立場便更加曖昧不明。
[最後，寫給讀者的話] 本書藉由故事性的呈現，描繪了愛滋感染者在臺灣遭遇過的種 種侵權事件。本會相信，愛滋教育除了幫助大眾正確認識愛滋 的傳染途徑之外，也需要對愛滋感染者的不利處境有具體的了 解，而非僅停留在抽象的「感染者權益被侵犯」或是「常常被 歧視」。特別是臺灣近幾年來，愛滋感染者的人數飆漲，人人 都必須要學習在職場上和愛滋感染者共事。 本會也必須指出，目前的法令規章不但無法保障愛滋感染者的 工作權，反而成為侵權得以發生的共犯結構。本會相信，維護 個人基本人權並不會與公眾利益相衝突，也不會削弱愛滋防治 的成效，相反的，愛滋防治政策必須扣緊人權原則。我們看
見，臺灣二十多年來，以防堵恐嚇的意識形態操作下的防治工 作，只是加重了社會大眾對愛滋的恐慌，更令感染者不願意出 來篩檢、被治療。即便愛滋感染者有免費的醫療資源，無法一 展所長、找不到合適的工作，仍然無法在現代社會中生存。 最後，如果你是愛滋感染者，希望這本書能幫助你更了解自身 應有的權益－不該因為體內的病毒，讓你的工作權益有絲毫受 損。不論是體檢驗愛滋、上司勸退，或是職場上任何因為你的 感染者身分所造成的侵權事實，這些不當的現狀是需要去抵制 的。本會願意和你一同為了工作權而戰，為了改變這個社會而 努力。
▍註釋 註一：自由時報／焦點2004.09.29。 註二：疾病管制局新聞稿 2004.10.01。 註三：以本報告完稿時間。 註四：列出放寬事項。 註五：當時公告的法定傳染病只有十一項：1)霍亂、2)桿菌性與阿 米巴性痢疾、3)傷寒與副傷寒、4)流行性腦脊髓膜炎、5)白 喉、6)猩紅熱、7)鼠疫、8)斑疹傷寒、9)回歸熱、10)狂犬 病、11)黃熱病。 註六：四類。 註七：第六條原條文。
“That day, I was turned down for my job…”
Persons with HIV/AIDS Rights Advocacy Association (PRAA) Presents 2006
All Our Contributors Acquisition and Development Editor: Dale Lu Production Coordinator: Ivory Lin Editorial / Production Supervision: Gino Lin、Ping Wang、 Edward Lee、Ivory Lin、Chia-Ling Wu、Jiazhen Ni、Hansen Wu、Huei-Chung Yang、Janet Yeh、Chung-Yeh Deng Page Composition: Dale Lu、Ivory Lin English-language Translator: Edward Li, Mei-Hwuan Li Cover / Interior Design: Pei-Yu Sun, Pets Sun Copyright 2006 by Persons with HIV/AIDS Rights Advocacy Association (PRAA), Taipei, Taiwan Part of rights reserved. Part of the report may be reproduced, in the form or by means of CC, with written permission from the publisher in advance.
Acknowledgements PRAA would like to utmost thank support from Levi Strauss Foundation and The United Way Taiwan for making the production and distribution of this publication possible.
Contents Chapter 1
INTRODUCTION Necessities of Employment for PWH/PWA／66 Obstacles of Employment against PWH/PWA／68 Purpose of the Narrative Report／70
Chapter 3 Chapter 4 Chapter 5
CONCLUSION Disputes from Regular Physical Examination for Employment／132 Exclusion of the Current Rules and Regulations／135 Inadequateness of HIV/AIDS Prevention Act／140 Negligence of the Main Authorities Concerned／141 SUMMATION／142
Chapter 1 INTRODUCTION
Necessities of Employment for PWH/PWA In Taiwan, it has been more than 20 years since the first case of HIV/AIDS was officially announced. Until the end of 2005, according to the official statistics of Centers for Disease Control (CDC), the number of Person with HIV/AIDS (PWH/PWA), aged 29 to 59, has reached up to 9,159, above 90% of the total. Adjacent to those undiscovered dark figure 1 of those undiscovered, about 50 to 100 thousand youngsters and the middle-aged with HIV/AIDS are still in the various working fields to support themselves or to maintain the living of their families. However, it is still inevitably questioned if PWH/PWA are capable of normally working, and whether it is appropriate for PWH/PWA to appear in the working fields, and if so, why they need to demand their working rights. First of all, for PWH/PWA, like all the other citizens in society, a normal occupation not only stands for stable income to meet the basic living demands but adds up self-affirmation with sense of achievement. From the perspective of human rights, when PWH/PWA have a decent job, they have the ability to lead a fair life, and then live in a good-quality lifestyle. As a consequence, to every PWH/ PWA, employment is needful and significant. In fact, because the highly active anti-retroviral therapy (HARRT), INTRODUCTION
known as “cocktail therapy,” has been provided free for PWH/PWA since 1997, quite a few are in good condition 2. As long as PWH/PWA regularly take medicine and cautiously manage their health, the reproduction of HIV can be effectively controlled within a clinically permissible range. For the PWH/PWA receiving the cocktail treatment, HIV/AIDS is rather a type of chronicle disease, such as high pressure and diabetes, than a fatal plague. In addition, the transmission routes of HIV infection have been medically recognized as sexual behaviors, blood transmission3, and mother-child vertical transmission.Very rarely do these three conditions appear in a common working field4. As a result, in 2003, the HIV/AIDS Prevention Committee of the Department of Health formally declared, “The working opportunities of PWH/PWA, except for those directly involved in the sexual work, must not be unreasonably restricted or excluded in any obligatory terms or conditions.” Furthermore, Article 5 of Employment Services Act rules, “For the purpose of ensuring national’s equal opportunity in employment, Employer is prohibited from discriminating against any Job Applicant or Employee on the basis of race, class, language, thought, religion, political party, place of origin, sex, marital status, appearance, facial features, disability, or past INTRODUCTION
membership in any labor union.” In 1987, the legislators enacted AIDS Prevention and Control Act, which has still been the only legitimate source to specify both HIV/AIDS prevention and the rights and obligations of PWH/PWA. In the Act, the 1996-added article 6-15 stated, “The personality and legal rights of persons infected by HIV shall be respected and protected; there shall be no discrimination, no refusal of their schooling, medical care, employment, or any other unfair treatment.”
Obstacles of Employment against PWH/PWA However, although the propaganda of PWH/PWA’s rights has been conducted, the rapidly increasing number of people with HIV/AIDS has not been accompanied with the emphasis on the human rights of living for the group. Very few fairly equal opportunities for working are offered to PWH/PWA in society. Even worse, PWH/ PWA are frequently faced with artificial obstacles against their employment. Currently more employers, in order to filter off those with HIV/ AIDS, are setting unreasonable threshold in the routine physical INTRODUCTION
examinations or in the fixed hiring limits, requiring HIV test be included. Whether in public sectors or in private ones, a large number of PWH/PWA are harshly challenged with increasingly exhaustive mechanism of exposure and exclusion in their working fields. Those seemingly lucky may survive or escape from the physical examinations or hiring limits, temporarily keeping their jobs on. However, in fact, the majority of PWH/PWA with no clues have no option but to reluctantly resign or to abandon applying for the job, only to choose the jobs without physical examinations or hiring limits, but with poorer working conditions. Nevertheless, whether from the virtual evidences or from the administrative regulations mentioned above, PWH/PWA are allowably competent for being engaged in almost all kinds of occupations. Therefore, if employers against the law filter, reject, or even expel their employees or any job applicants for irrelevant reasons to working capabilities such as HIV infection, it is accordingly evident that law-violating employers not only fall into inhuman discrimination against PWH/PWA, but also do serious harm to the basic living rights of PWH/PWA.
Purpose of the Narrative Report As the first and the up-to-now only non-government organization (NGO) in Taiwan for PWH/PWAâ€™s human rights, since founded in 1997, the Persons with HIV/AIDS Rights Advocacy Association (PRAA) has been keeping in contact with those PWH/PWA whose working rights are invaded to some extent. PRAA has also been assisting the clients in striving for fair and equal treatments in their working fields. For these years, the PRAA has been making efforts to take complete recording of all of the cases into systematic compilation. Fortunately, in 2005, thanks to the sponsorship from humane, far-sighted Levi Strauss Foundation, the PRAA thus acquired the opportunity to re-examine and re-present these precious documents. First, the PRAA hired a qualified working staff from academic background of social work and counseling, fully responsible for communication with the cases selected6 for the project. Furthermore, a specific committee board was composed of professors and social workers on HIV/AIDS, regularly holding a meeting to discuss the direction and presentation of the project. Continually working for over seven months, the Chinese version of the narrative report was hence finished up.
In the report, the PRAA attempts to empathetically describe the personal experiences of the selected PWH/PWA faced with invasion against their working rights. Apparently, because of differences of their jobs, the ways the cases suffered from mistreats in employment were quite different. Yet, the three cases, in a sense, seem a little bit luckier than any other else â€“ one of them was cared for by a nice boss, one had a good chance to find another job, or another one in a better social-economic condition. Therefore, they have enough supportive strength to fight for the working rights of their own together with the PRAA. Nevertheless, from the working experiences of the PRAA for these years, the stories of the three cases here are merely small tips of an iceberg. So much more PWH/PWA are still afflicted with painful stress, or even dreadful stigma, against their basic rights of employment in the various working fields. All in all, concerning the social obstacles that PWH/PWA still stay threatened by discrimination and isolation, the PRAA expects more vivid illustrations of PWH/PWA to be clearly made and to be carefully noticed. By devoting to this narrative report, the PRAA sincerely hope that the life of PWH/PWA, from this time on, never falling into the perspective of death sorrow or moral condemnation as INTRODUCTION
before, can be broadly perceived, and more importantly, delicately understood.
According to the estimation of the United Nations (UN), the
number of those who have HIV/AIDS in Taiwan ought to be around five to ten times more than the official statistics. 2
Some of the PWH/PWA even has no need to take medicine but
just to have a regular checkup on the amount of the immune cells and the viral load within their body to evaluate if their immune system still works. Even though PWH/PWA get seriously ill with optional affections, they usually recover the normal physical function after adequately treated in the hospital. 3
Based on the clinical facts and figures up to date, except
for direct blood transmission and needle sharing, there is approximately one out of a thousand probabilities getting HIV, with any large, newly cut wounds that are also visibly apparent, and directly contacted with the blood of PWH/PWA. In any common working place, there lies little chance for any similar situation to occur. So far, only one case of HIV infection due to wound contact was reported on record.
With the limits in time and cost, sexual work temporarily is not
included in this report. 5
The article is most frequently cited for argument when it comes
to PWH/PWA’s working rights, as the article is the only official regulation concerning the issue in this country. 6
After the committee board formally set up the criteria
for evaluation, the working staff in charge selected three representative cases as the main subjects for further interviews. In addition, the whole working group also paid much attention to possible ethical issues on the project, so the two necessary contract, “informed agreement” and “rights protection regulations,” were required through the entire process of the interviews with the selected cases. In the front of every interview, the working staff invited the interviewees to read the expositions in detail. It was particularly emphasized that any part related to personal privacy definitely was presented to the interviewees before printed or published.
Chapter 2 CASE ONE In 2004, Mr. A, a clerk in a convenience store went to the hospital. When coming to visit him, his regional leader felt he might get AIDS. After he left the hospital, he was asked to quit the job with good retirement compensation. Some hearsay began to spread around him.
1 In 2005, when our association began this project, at the same time, Mr. Aâ€™s struggle in his job also came to an end. His job as a clerk in the convenience store attracted my attention. After I read his file and had a conversation with our social worker, I began to have a general understanding of his story. Then I decided to write his story. I first listed the outline of our interview and asked our social worker to arrange a meeting for me. On one Saturday, when I had dinner with our social worker in the office, Mr. A appeared as he promised. Before that, our social worker only made contact with Mr. A through the telephone as she tried to help him to have a negotiation with his boss. However, this first face to face meeting did not seem awkward at all, maybe because Mr. A did have the personalityâ€”being open-minded and lovelyâ€”which were quite suitable for the service business. Then Mr. A began to tell his story. 2 The story began in 2004 when Mr. A suddenly had to stay in the hospital for 3 months. His blood test proved that he acquired AIDS. One day his regional leader came to visit him. CASE ONE
Because he had certain medical background, he noticed the medical waste bag for Mr. A seemed to belong to people with a contagious disease. After Mr. A left the hospital, his manager and the regional leader asked him to accept a check up to prove that he was not infected with AIDS. Mr. A simply rejected the proposal. However, the big company Mr. A works for regulates that any employee who wants to ask a sick leave has to present his medical diagnosis to the company. What is worse, Mr. A’ s doctor insisted on reporting AIDS in his diagnosis. Finally Mr. A finally had no choice but to give his diagnosis report to the company. After that, he knew he was likely to lose the job he had worked for ten years. 3 “How did you feel, when you found you had AIDS?” our social worker asked Mr. A.. He said, “I was quite panicked, and even asked my lover if he wanted to leave me. He said no. So we continued our relationship, but we always took some protection procedure when we had sex. I also asked him to keep the secret for me before my parents.”
This experience actually is quite common to a gay couple. A new PWA always has to face the possibility of being rejected by his/her lover and also the pressure of hiding the secret to his/her family. However, this seems trivial when he/she has to face another problem—how to keep his/her job. 4 I asked Mr. A, “When you found the doctor insisted on reporting AIDS in your diagnosis which you had to present to your company, you should have thought about the consequence of exposing your identity as a PWA. How did you feel about this issue?” The reason why I ask is because some people just never have the courage to face the similar situation and often choose to quit the job to avoid presenting the diagnosis report to their company. As he remembered, he said, “I never really thought about the consequence. I just knew I had to give the report to the company and my secret would thus be revealed. However, I never really thought about the result.” Many people are just like Mr. A when facing a similar situation. They never really think the result of letting the company know their situation. Mr. A, at that time, certainly would feel CASE ONE
uncomfortable when he was forced to present his medical report, but he never really expected to lose his job. 5 Later, the company asked Mr. A to take a “really good rest”, so he had no choice but to continue this “long rest.” “Obviously, this was not the result you expected. When you were asked to take a long rest, how did you feel,” then I asked. He answered, “One day the manager and the regional leader made an appointment with me in a café to pretend that they were still concerned about me. First, they asked me if I felt better; then they wanted me to ask a leave. At that moment I still didn’t sense that they did not want me to go back to work. So I really asked a three month leave. ” “What were you doing when you took a rest at home? “ I asked. “Though I was forced to take a rest, it was impossible for me to stay at home all day long, because it was terrible. I felt I was recovered, so I should not stay at home. My mother also felt strange about that. Finally I tried to find a job through 104 labour bank.
I tried to work as a delivery man, a postman and so on. I even tried to drive an ambulance, though I was actually too afraid to do the job because the medical center I was supposed to work for was just near the city morgue. “Finally I found a job in a drug and cosmetic store, which was ok, though a little bit tiring,” Mr. A then said. “At first I was afraid that my mother would doubt why I quitted the job in the convenience store. So I told my parents that I was forced to quite after my leave without any reason. My parents thought it did not matter. They just didn’t want to see me have a quarrel with the company.” When Mr. A had worked in the drug and cosmetic store for three months, the personnel department of the chained convenience store found Mr. A’s leave had come to an end. So they asked the supervisor of the store to notify Mr. A to come back to work. As Mr. A recalled, “At that time I still worked in the drug and cosmetic store. So when I was notified that I had to go back to work after 3 days, I was very happy to get my job back. However, when I had to suddenly quit my job in the drug and cosmetic store, it was inevitable that some quarrels happened.” 6
However, Mr. A still could not keep his job long. After he came back to his position, the manager still came to ask him to quit with good retirement compensation. He was suggested to leave after getting the final bonus of the year. And he finally accepted the proposal. As Mr. A narrated, “When the manager came ask me if I wanted to transfer to another section, or maybe just quit with good retirement compensation, I thought maybe it’s better to quit. Actually, I felt quite uncomfortable because I didn’t know whether other co-workers had known my secret or not, if the manager could not keep it well.” Finally Mr. A decided to quit this job he just got back, because he was not sure to what degree his privacy was violated. Furthermore, the manager also strongly suggested him to leave. Under this circumstance, he decided to quit to avoid some pressure instead of keep fighting. However, when Mr. A was waiting for his quit to become effective, he gradually found there were more and more coworkers coming to inquire his secret. He really felt uncomfortable and angry with this hearsay. Therefore, he consulted our association to search for the assistance of stopping the hearsay. 7 CASE ONE
“At that time, were there many people speculating your story?” I asked the question in order to understand how much his privacy was violated. He gave an example that, “There was a supervisor from another convenience store coming to ask my supervisor. At first, my supervisor pretended to know nothing. Yet the person simply said, “Don’t lie to me, I had known the fact.” Then I began to think if a worker at that position could know my secret, who else wouldn’t know it. This further strengthened my determination to accept the manager’s proposal.” Then I asked, “At that time, did you just hope that our social worker could help you stop the hearsay, or maybe you also hoped that we could help you to get your job back.” Mr. A answered that, “No, I just hoped to stop the hearsay. I hoped your social worker could help stop people from violating my privacy. I hoped the social worker could find who knew the secret and then asked them to stop spreading it.” 8 Then we asked Mr. A to tell us how to make contact with his supervisor, who was a strong supporter of Mr. A. and played the role of a negotiator in the whole issue. We hoped that we CASE ONE
could know more inside information about the company after consulting the supervisor. With the help of the supervisor, we found the regional leader and tried to ask him if Mr. A’s privacy was violated. He seriously explained that he never spread Mr. A’s secret. Because he had certain medical background, when he came to visit Mr. A in the hospital, he immediately found the waste bag in Mr. A’s room was only for those who had a contagious disease. However, it was not him but Mr. A’s diagnosis report that revealed the secret to the company. To this point, Mr. A argued that, “Before I presented my report, the leader had come to ask me to take care of my body and asked if I wanted to take a rest. He even strongly feared that I might cut my finger when working. He should just know I had a lung-related disease, which absolutely had nothing to do with the cut in the finger. So I believed he had already had a strong suspicion of my disease.” Certainly we did not know on what the leader’s suspicion was based. The most important issue we were concerned about was to stop others from violating Mr. A’s privacy. Therefore, our social worker told the regional leader about Mr. A’s discomfort with the hearsay. We thought Mr. A’ CASE ONE
s problem wouldn’t be really solved even after he was transferred to another department (if he still stayed in the company). Then the leader promised to reflect our concern to the company. 9 When we were waiting for the company’s response, our social worker asked Mr. A to find out his company’s regulations on its employees in the hope that we could set up some strategies against them. Mr. A seemed hesitated when he was informed of our request in the telephone. He worriedly said, “Can we really fight against such a big company?” This worry was very natural because he was now facing a big company and a big system. In order to show our understanding of his worries, our social worker emphasized that, “though we are just a small association, we still can make a deal with a big company if our request is totally legal.” After two more weeks, we still did not know the company’s answer to this issue. So Mr. A’s supervisor volunteered to ask the manager if Mr. A could keep the job and he also told him that Mr. A had asked our association to help him. Then the manager seemed very nervous and asked the supervisor to stop asking anything about Mr. A. CASE ONE
From the judgment of the supervisor, the company seemed to hope to deal with the whole issue “quietly.” So he suggested that maybe our association should stop trying to call the manager to avoid any tension between the two sides. Our social worker then agreed to stop for a moment. Then Mr. A has kept his work till now. 10 I asked, “Originally you felt your privacy would be seriously violated, and then why did you decide to keep working there?” “That’s because the manager was transferred to other places later. My supervisor said, “Now we have a new manager, so you can keep your job.” So I decided to stay there.” Then he said, “But I knew it was inevitable that the new manager should have been informed of my situation. Yet my supervisor told me the new manager seemed not to care so much.” Our social worker said, “I and your supervisor both guessed that some persons who had a higher position than the manager must have decided to solve the issue in a quiet way. They might be afraid that the whole issue could damage the figure of the big company. They knew it was illegal to fire you after counseling the lawyer.” CASE ONE
Mr. A also agreed, but he said, “Maybe they were afraid of me, but I was also afraid of them. I never knew if they would trouble me in some trivial things. So my supervisor always asked me to be careful in my job in order to avoid criticism from others.” “Did the hearsay continue?” our social worker asked to show her concern of Mr. A’s current situation. Mr. A pleasantly answered, “Actually it just stopped. My philosophy now is to ignore those who make me feel uncomfortable. I just do my job well and then naturally no one will trouble me. 11 After several months, in the middle of 2005, one interlude happened. According to the regulations of local health organization, workers in the service business will be asked to accept a routine check up. If they are disqualified, they will be forced to quit. When Mr. A’ supervisor was notified by the company that if Mr. A was disqualified in his check up, the company had to fire him according to the law.
After knowing that the company seemed to hope to fire Mr. A based on the result of his check up, the supervisor immediately called our social worker. After understanding the situation, our social worker first asked Mr. A to get the result of his check up and then decided the next move. However, when they found AIDS test was not included in the check up items, they took a breath and gave the check up report to the company. The whole thing proved to be just a false alarm. 12 The main reason why Mr. A can finally keep his job is a supportive supervisor. But to most of the PWA, it is almost impossible to imagine a supportive boss after their identity is exposed. Because of this, I am very curious why the supervisor is so different from others. I once made an appointment with the supervisor in a café. “How can you be such a strong supporter to Mr. A?” I asked. The supervisor said, “Actually the relationship between a supervisor and a clerk in a convenience store is very close, just like friends. After all, we have worked together for about 8 years, which was quite a long time.” CASE ONE
I was convinced that the friendship between Mr. A and the supervisor must be very strong, but I still hoped to know if the supervisor’s positive attitude toward the whole issue was related to his sufficient knowledge of AIDS. So I further asked, “Your knowledge about AIDS such as how it is infected must be very sufficient, so you are not so afraid of it as other people.” He honestly answered, “It’s so so. For example, we once ate together. When he used his chop to pick up some food in a dish, I would wonder if I might be infected when eating the rest food in the dish. When he shared the same drink or used the same rest room in our store, I would also think the possibility of infection. When I understood nothing dangerous would happen, I learned to ignore his identity as a PWA. From above mentioned speech, I know the supervisor has a correct knowledge of AIDS. However, in Taiwan, due to fear, or lack of knowledge, many people still do not dare to share food, drink, or rest room with PWA. With his correct knowledge of AIDS, the supervisor has learned not to be controlled by fear without unnecessary worries. 13 Toward the end of our interview with Mr. A, I directly asked, CASE ONE
“You have already worked for about ten years, why weren’ t you promoted to the position of a supervisor.” I asked the question because I hope to know more about how Mr. A looked at his career. “I thought I should, really. However, it might be because of my identity as a PWA, I still didn’t get the promotion.” He seemed become very serious and then said, “Once a supervisor from another store came to ask me if I was willing to be promoted, because he would help me if possible. However, it was him that spread the hearsay about me.” As to this promotion issue, Mr. A said, “I have worked for such a long period, so other supervisors who have known me well often ask me why I am still not promoted. I always say I don’t like too much pressure or maybe my ability is not enough.” Mr. A’s failure to get a promotion is after all still a kind of discrimination. However, Mr. A still tried to look at the whole issue optimistically, and said, “Maybe if I move to another area which have more vacancies for supervisors, I will have chances to get the promotion.” Then he began to picture his life after he transferred to a remote area to work. At this moment, our social worker and I did feel very happy for CASE ONE
Mr. A. After all he finally has found his way of living in a big company. We believe he will have a bright future.
Chapter 3 CASE TWO This is a story happening in 2002. When Mr. B tried to apply for the job as a driver of Taipei MRT company, he was forced to give up due to the AIDS test included in the health check up the company forced employees to accept.
1 In a typical hot summer Saturday in August 2005, the social worker of our organization and I were waiting for Mr. B in our office. He was late for about 2 hours, which almost made us think he might have decided not to come. There were many reasons why we thought he might be absent. No very deep relationship established between our organization and Mr. B and no obvious benefits Mr. B might get from this meeting, not to mention he was likely to expose his identity as a PWA in this meeting. However, he finally entered our office, saying sorry to be late for working overtime. When we saw this guy with an easy attitude, suddenly, all our worries after long hours of waiting seemed to have gone away. 2 In 2002, When Mr. B knew he needed to accept a health check up including AIDS test, he first tried to counsel one AIDS related organization he was familiar with. When they found this was a case about the violation of work right, they decided to invite our social worker to provide a joint assistance. At this moment, he only had ten days left to decide if he wanted to accept this job.
To show our respect to his privacy, during the period when he tried to ask our help through his familiar organization, we were very glad to provide this “indirect” help, so we never met him and even never directly accepted his call or called his cell phone to hear his voice. Actually, this “direct” meeting after 3 years was also arranged through his familiar organization. Therefore, before we really met him, we could only speculate what kind person he might be by reading some personal information listed in his document. 3 As a PWA for 8 years, Mr. B did not really look like a patient suffering from the disease. I still remember in 2002, in order to help Mr. B, we arranged a meeting with the Taipei MRT company under the help of a legislator’s assistant, the person in charge simply said, “any limitation is just our request of a higher standard of the MRT driver’s health; it is never a limitation set for PWA.” Three years later, at this moment when I looked at this healthy guy before me, I deeply felt the company’s over concern of the driver’s health seemed totally ridiculous. Mr. B said, “Actually I have never stayed in the hospital in these 8 years, and it is just in the first year I ever took some CASE TWO
medicine. Later I stop taking it because I don’t like it. Anyway, I still accept a regular check up in the hospital, and everything seems just fine with me.” His description simply told me that not all PWA would look like really sick people. Obviously, Mr. B was a more healthy type. 4 In 2002, as a person who would soon be over thirty, Mr. B began to have another plan for his career. As he said, “at that time I just thought I might need a job which could guarantee a longer period and more reliability. Suddenly when I saw the driver wanted announcement posted in the electric bulletin board of MRT station, I thought this might be a good job.” “At least, I never heard the company ever cut down the staff,” he said with a smile. “ I still remember the whole application was somewhat troublesome. I had to surf the company’s website, filled in the specific application form, and then send it back.” After this small complaint, Mr. B then happily said, “When the interviewer asked me a lot of questions, I felt I would get the job. Maybe that’s because all other applicants seemed younger than me. And when the interviewer asked me if I had any pressure, I simply said no. I believe my easy and frank CASE TWO
answer must have made a good impression on him.” Without any surprise, he got the employment notification; however, he suddenly found the AIDS test was included in the company’s regulated health check up for his employees. “What kind of thought came to you first, when you ripped the envelope and found the AIDS test listed in the check up form,” the social worker beside me asked. At that moment, Mr. B seemed to low down his voice and said, “I just felt I was in a mess.” After a short silence, his raised his voice and said, “I once thought I might accept the check up. I felt it’s all right if the company just fired me after knowing the fact.” This thought somewhat surprised me because to expose his identity as a PWA, he will take a great risk of his career in this hostile society. If people face the same situation like him, most of them might just give up to avoid the check up, but Mr. B seems to have a different choice. Under this circumstance, unlike Mr. B. most people won’t make any efforts to fight for it. Maybe at this moment, Mr. B found his strong will asked him not to meet the whole thing with resignation. After all, he had already passed the test and was formally employed. It was really a pity to give up. CASE TWO
In order to clear up my question, I continuously asked, “Why did you want to accept the check up? Didn’t you know it was risky? Was it a kind of self-abandonment?” He answered, “Maybe it was really a risk. I just wanted to know how a company which insisted on testing if its employees had AIDS would deal with the whole issue? If I never tried, I would never know if the company would reject me or feel it’s ok and then accept me.” “Why did you finally give up when others suggested you not to do it?” I asked. “This was a result of deliberation.
I was afraid that the
interviewer might tell me: ‘How dare you are to apply for this job when you know you have AIDS.’ I had an impression that all the interviewers seemed to have a poker face. Yes, they did have a poker face,” as Mr. B said. The final truth is revealed. Those imagined but possible scenes of embarrassment are just the reasons why most PWA will lack courage in similar situation. 5 Then this was the final result of this story in 2002. When Mr. B CASE TWO
decided to give up taking the check up and indirectly informed our organization, we still hoped to provide some help. With the help of a legislator’s assistant, we tried to show our concern of this issue to the MRT company. However, it was till the last day for the accepted employees to report if they were willing to take the job, the company finally notified us that it could not accept a PWA. 6 “Did you feel sad, when you accepted this final notification through our organization?” our social worker asked. “ Not really, because I had already expected it.” Mr. B then easily said, “I had already prepared to accept this kind of notification. I knew I was unlikely to enter the company, as a PWA.” Then he said, “Actually, before I got the notification from your organization, I had already called the head of personnel department. I told him this was a call I did for my friend who wanted to know why a PWA couldn’t work as a MRT driver. The head just answered that in some situations, a driver would have certain body contact with the passengers, so the company couldn’t accept a PWA as it’s driver. My preparation for this CASE TWO
result was just based on this phone call.” When I knew he once made a phone call, I really appreciated his efforts. Though he was unable to change the company’ s regulation on its employees’ check up, at least he tried to recognize it by himself. Maybe it was until this moment that the messy feeling he got after he ripped the envelope could finally disappear; then, he finally could repose himself. Suddenly, I asked, “Didn’t you said you once planned to take a risk and challenge how the company would deal with this issue? When you called the head, why did you say you just did this for your friend instead of telling him you called for yourself?” He answered, “To me, I felt more courageous to ask the question when I said I asked this for my friend.” I suddenly came to understand his situation and said, “Yes, anyone would feel difficult to pose this kind of question.” Originally, I thought to pretend to be someone else was just to avoid the humiliation brought from the stigma of AIDS in the society. But in Mr. B’s case, he seemed to use this way to positively bring himself more courage in this hostile society. 7
At the same year after Mr. B was rejected by the MRT company, he chose to work in a small company without any regulation on the employees’ check up. While appreciating his efforts on his job, till now I have still felt pitiful for his being unable to work in the MRT company to make his life easier. Mr. B’s case tells us an important fact. “Discrimination” often rationalizes itself under customary regulations, which often causes the deprivation of work right. Facing this great and heavy wall made in those systematized regulations/limitations, we know it is almost impossible to totally break it down; however, we still hope to at least drill some holes on it. Then our social worker asked him, “Had you ever considered to sue the MRT company after being rejected?” The reason for this question is because she deeply knows it will be very difficult for PWA to really sue a company when they find negotiation is totally useless, according to her long years of working experiences in helping PWA. With an understanding expression, Mr. B quickly answered, “No, because I knew I would lose the case.” Our social worker then asked him to say more, and he answered, “Actually, I never really considered about that because I knew the company was just following its publicized regulations. I didn’t think I could legally fight againt them even with the help of a lawyer.”
Then I cut in the conversation, “But had you ever thought about those laws set to guarantee the work right of PWA. Did you really think those publicized laws could not help you?” I could not help laughing after giving this speech, because many past memories suddenly occurred to me. From our working experiences, those schools which reject students with AIDS, those hospitals which reject patients with AIDS, and those companies which reject employees with AIDS, are actually never punished under the current AIDS prevention law, which is supposed to guarantee the rights of PWA, but finally just become a hollow announcement of the government. Mr. B then said, “Certainly, the government will never favor PWA.” Our social worker then cut in, “However, the court won’t totally agree with the government, because it is independent.” We found we might make Mr. B feel we were too pushy, so I said, “We don’t try to encourage to sue the company now, because we know it is too late. Maybe its just one of our people’s myth: if possible, we try not to solve our problem by suing someone in the court. In other countries, such as USA, people think it is very natural to sue someone to protect their rights.” Mr. B said, “Maybe I also have this myth. Anyway I am not the CASE TWO
kind of person who likes to fight for everything. Anyway I still can find another job.” I deeply felt sorry for him after hearing him say “anyway” twice. For him, to make some compromise in this hostile situation seems not a bad strategy. However, I decided to challenge him by saying, “It really sounds good to work as a MRT driver.” Then he frankly said, “Certainly.” After a short silence, all three of us began to laugh. The laughing somewhat embarrassed him; then he said, “Yes, certainly, I think maybe I cannot find a better job than that. However, I think that job might have some restrictions. My current job, though somewhat boring and dull, at least can pay enough salary and provide a good working environment. Though it’s much worse than the job as a MRT driver, but is ok to me.” Then he jokingly concluded, “Maybe I just lack ambition.” What kind of mechanism in our society can make a person tease himself by saying, “I just lack ambition.”? Mr. B’s story tells that some unreasonable check up regulations will only force PWA to give up their dream and ambition in their career. Many PWA in Taiwan all suffer from a deep sense of depression, resulting from the obstacles set by some companies or limited choices they set for themselves. To them, AIDS is not CASE TWO
only a physical disease, but also a social disease, a syndrome depriving them of their ambition. 8 In 2002, when we knew Mr. B received the rejected notification, we decided to inquire the MRT company to provide us more details about its decision in the hope that other job applicants like Mr. B could understand better the company’s regulations. Following is our documented chronology of the whole inquiry process between our organization and the MRT company. In June 2002, our social worker sent an official document to the MRT company, which indicated how the AIDS virus was infected, so passengers wouldn’t have any danger concerned about their contact with the driver. The MRT company responded that it was its right to set the regulations on its employees’ check up result. Because AIDS was a legally contagious disease, PWA were not suitable to work in the traffic business. On October 30th, 2002, our board director mentioned Mr. B’ s case in a conference, which arouses the attention of the mass media. The manager of the MRT company declared in the media that, “Law should be the principle to follow. Yet MRT is the mass transportation… Therefore the company cannot hire a CASE TWO
person who will spread diseases.” He also emphasized, “The minority should be protected under the law, but the public benefits should not be damaged because of the law.” On November 1st, 2002, the head of the labour bureau of Taipei city judged the whole thing as a discrimination case, so he held a meeting with the representatives from the labour bureau, the traffic bureau, the health bureau, and the MRT company. The final decision of the meeting was: “It is discrimination to refuse to hire PWA.” On November 2nd, the manager of the MRT company promised to the mass media that it would change its regulations on its employees’ check up result, so a PWA will be able to work in the position which won’t “interfere with” others, including the position as a driver. In December 2002, our association sent the decision of the above-mentioned meeting to the traffic bureau and the MRT company. In the end of December, the company responded that it’s its right to set the regulations on its employees’ check up result. And AIDS was regarded as a legally contagious disease. Because the labour bureau had different opinions on the company’s regulations, it would follow the decision of the CASE TWO
meeting to modify the regulations and reported the result to the city government. In June 2004, our association tried again to ask when the MRT company would finish the modification of the regulations. The MRT company responded that it would soon hold a meeting to discuss the modification. However, so far, the company still hasn’t done it. 9 After I vividly illustrated this dramatic story about our interaction with the MRT company, our social worker took a deep breath and laughingly said, “What a terrible process it is when it began in June 2002!” Mr. B then said, “Yes, this terrible story even continued till 2005.” Then our social worker continued to say, “It’s the first time I tell the later development of the story to you. After understanding the complete development of the story, how do you feel?” Mr. B said, “Actually it is not beyond my expectation. This is jus the way the official departments will do—to keep delaying— in order not face the reality. If the answer is no, they are afraid to be attacked by the media, but if the answer is yes, they think the higher authorities will blame them. CASE TWO
No matter what, the best way is to keep delaying.” I thought Mr. B really understood how an official department would deal with the controversial AIDS issue. Then our social worker asked, “Since you first came to ask us for help, have you ever thought the whole issue will take such a long time?” Mr. B said, “When I hear that there are so many official departments involved in the whole issue, including the labor bureau and the health department, I suddenly feel that I seem to become an important person.” We both laughed. Then he said, “It’s necessary to let many official departments know this kind of thing.” Our social worker said, “The whole thing might just be the starting point of other cases. So we deal with the whole thing not only for you but also for other people who might face a similar situation.” 10 When PWA try to find a job, their first concern is always the company’s regulations on the employees’ check up. If AIDS is one of the items to be testes, most of them might simply give up the application for the job. Because of this I tried to ask CASE TWO
Mr. B about this issue. I said, “Weren’t you worried that the MRT company will require its employees to accept the AIDS test?” “Of course, I knew the check up was necessary, but I never thought the AIDS test would be included. I thought it had nothing to do with a MRT driver,” Mr. B said. When we asked the MRT company about its regulations on the employees’ check up, it responded that, “Our company belongs to the transportation business, all the employees are related to the safety of our passengers. According to the law, all the employees should pass the so called “Skills Test and Health Check UP for Employees in a Train.” Our company only hire employee who pass all the items. Because of this, we feel sorry to declare that PWA cannot meet our requirements.” The above mentioned statement sounds very familiar to us whenever we try to ask the official departments about the work right of PWA. According to the manager of the MRT company, PWA will spread diseases when they work in the transportation business. Is it true? Actually, it is only under certain circumstances that the chance of transmission will happen. For example, when an accident happens, the HIV positive driver CASE TWO
and one passenger both are hurt and their cuts are bleeding. And very coincidentally, their cuts have a direct contact with each other. If the MRT company believes that the MRT driver who rarely makes contact with the passengers might endanger them, how does it treat the fact that there are about 3000 PWA who also take MRT in Taipei City. Will they be forbidden to take MRT? Actually, if the company has a correct understanding about how AIDS virus is transmitted, and the usual interaction of people in the train is harmless, it really should not over emphasize the possibility of transmission in the name of “public health.” This behavior of excluding and alienating some people from some position is pure discrimination. 11 When I tried to arrange the interview with Mr. B, originally I thought this event happening three years ago might have been forgotten and just left a dim impression on him because after all it was not a happy memory. However, I found he still remembered many details.。 How exactly did he feel about this past experience? His words quite impressed me, “If I say I don’t care much about the whole thing, it certainly will be a lie. Actually, I care very much.” CASE TWO
I will never forget about his hard to describe expression when he gave those words.
Chapter 4 CASE THREE This is a story happening in 2002. Mr. C., a hospital employee, was found to infect AIDS in an unauthorized AIDS test. After a series of negotiations and lawsuits, he still hasnâ€™t gone back to his original position so far.
1 After the establishment of a sense of trust within three years, Mr. C, who described himself as the Taiwan version of Tom Hanks in the movie Philadelphia, once told us that, when his lawsuit about the violation of his work right came to an end, he was willing to tell his story through a journalist. Because of this, when our organization decided to work on an analysis of the violation of work right and asked Mr. C if he was going to share his experience, he said yes without any hesitation. The interview was arranged several days after the call. When we arrived at Mr. C’s house, what waited for the social worker of our organization and me were not only the host couple but also some crab and Taiwan beer, which truly add some flavor in our conversation. 2 With his quick speech and a lively attitude in answering questions, obviously Mr. C seemed never thought the stigma circling around AIDS as a problem. As he said, “I really don’ t think AIDS is such a serious disease when it can be controlled just like hepatitis B. Actually the two diseases even have the same way of transmission.” He even naughtily said, “I just feel I am as healthy as any other person.” CASE THREE
“This disease” should not preclude my chance to continue my job as a doctor, so our director’s attitude is irrational. He concluded that, “after receiving some proper therapy, I am recovered and certainly should get my job back as a doctor.” After hearing this, we began to wonder how he could adopt such a positive attitude towards AIDS. Therefore, we further asked and hoped to understand his imagination of AIDS and his attitude toward PWA before his contraction of the disease. He recalled his past experience and said, “When a nurse told me one of my patients was a PWA, I would simply treat him/her as a common patient. I even asked the nurse to hide the name from me because I might feel a little bit fearful when I really heard the name.” He put it directly, “I knew I wouldn’t be easily infected, so if I did not know who was a PWA, it would be easier for me to treat all my patients in the same way.” “I knew the transmission of AIDS needed the contact of blood or sex, which would not happen in my treatment of patients, so there was no reason why I should have a sense of fear.” After this statement, Mr. C and we all laughed. This common sense tells us if a doctor can follow a standard procedure to treat all of his patients, he/she should never have an irrational CASE THREE
fear towards the possibility of contracting AIDS in his/her treatment. Ironically, when Mr. C contracted AIDS, he was forced by the director of the hospital to stop his job as a doctor and then was moved to another position as a manager of patients’ files. 3 In a summer morning of 2002, as usual, Mr. C was preparing his routine work for the treatment of his patients. Suddenly the head of the examination department came to inform him that his AIDS test was positive; as a result, his job should be suspended immediately after his treatment in the morning. At that time, Mr. C’s immunity system had already become weak, so he was arranged to register in another hospital. After one month of treatment, he was able to leave the hospital because the number the AIDS virusw in his body became very few. Then he asked a one month leave to take a complete rest. When he asked the director of the hospital to restore his job, he was rejected. Originally, the director of the hospital tried to counsel CDC in the hope that his rejection of Mr. C would be supported. As CDC responded, “the chance of doctors to transmit AIDS virus to their patients is very small, so they shouldn’t be limited in their CASE THREE
treatment of their patients in order to show respect to their profession.” However, this positive answer still could help Mr. C get his job back. Then another three month had passed. In the end of that year, the director of the hospital told Mr. C that some patients’ families threatened that, “If the hospital agrees to let a HIVpositive doctor to treat the patients, this secret will soon be revealed to the media.” At this time, Mr. C not only was troubled with the stubborn attitude of the director of the hospital, but also began to worry if his privacy was violated, since other people seemed to know his secret. He finally decided to fight for his own right by asking the help of our organization through the Internet. 4 As Mrs. C told us, “My husband just sat in the living room without any words for a whole afternoon when he heard the director’s response.” “I was really panicked, when I found the director of the hospital kept lying to me. First he asked me to take more rest,” Mr. C said. “However, in the end of the year, he simply said, ‘You will never be able to restore your job as long as I am the director of the hospital.’ It was till that time I began to realize CASE THREE
it was impossible for me to get my job back, though I still could not believe the director would treat me this way.” Our social worker then said, “I still remember when you called to our organization, I could strongly feel that you seemed to be emotionally hurt by a sense of betrayal more than by the fact of getting AIDS.” Mr. C immediately responded, “That’s right! I felt I was deeply betrayed. This feeling hurt me more than AIDS.” The brotherly friendship between Mr. C and the director was totally ruined due to the director’s fear of AIDS. At this point, I began to wonder where the director’s fear came from because he supposedly should have sufficient knowledge of AIDS. Then Mr. C explained, AIDS had only appeared in Taiwan for about 20 years. Some old doctors actually never learned this term when they were students. If they did not have further study, their knowledge of AIDS might not be more than others’. The director’s irrational fear of AIDS finally makes him decide to ignore the friendship and then made the wrong decision. 5 In the end of 2002, Mr. C’s wife called us. Then we began to CASE THREE
help the lawsuit. At first, we tried to contact the director of the hospital, but were obviously rejected because there was no response at all to our four phone calls. Then our social worker decided to write an official document to the director with the approval of Mr. and Mrs. C. Before we sent it, we even called the secretary of the director in order to make sure this confidential document would be handed to the director. Then the document was sent out as a double-registered mail. We always hope everything would be solved if the employer and the employee can establish a mutual communication well through our careful help. Three days later, the director finally called us. Then we tried to settle down the date for negotiation, through which, we hope the director and Mr. C both would have a chance to share their feeling and then discuss the possibility of restoring Mr. Câ€™s job. Besides, in a meeting held by CDC, our social worker and director of board took advantage of the chance to inform CDC of Mr. Câ€™s situation. Finally CDC agreed to send a representative to join the negotiation. However the negotiation still failed.
6 Because CDC’s official document responding to the director’ s inquiry obviously supported Mr. C to get his job back, we decided to invite one official from CDC to join the negotiation. However, we were really shocked when the representative of CDC did not totally support us in the negotiation. Actually, he just asked both sides to surrender to some degree. He even said, “the decision (to restore a HIV positive doctor’s job) made by the prevention group under the Health Department is still hard to practice in Taiwan.” Even though some foreign courts would tend to restore an HIV positive doctor’s job, he still believed that, “Some cases applied in foreign countries might not be applied in Taiwan. The concern of the discrimination law should not be considered first. To overemphasize the law and ignore the reality can not help to solve the case.” After hearing this, Mr. C decided to quit from the negotiation. He sti l l remembered th at bef o re h e l ef t, h e to l d th e representative, “Our director said I only had to take a two-year rest. To manage the patients’ files was just a temporary job. When I had enough rest and no one really paid attention to this, I would get my job back.” The representative just gave him an CASE THREE
hard-to-believe answer, “That’s right. You really should give the director more time to handle the issue.” This failed negotiation made our social worker and Mr. C begin to seriously consider if they were going to resort to the law, especially when they recognized the officials in charge actually could not help them. It was just this passive attitude of CDC that acquiesced in the discrimination of PWA and caused the violation of basic rights. What is worse, this ambiguous attitude even foreshadowed our loss of the case. In that year, CDC promoted a slogan “No Stigma, No Discrimination,” which was totally an irony to us. 7 After making so many efforts, our last choice was to resort to the law. We sent two cease-and-desist letters to the director, which stated, “First, please stop spreading the news that Mr. C is a PWA in order to protect his privacy. Second, please guarantee Mr. C’s work right. If Mr. C promises that he won’t do any intrusive treatment, he should restore his job.” These requests were no more than some “basic human rights” under the protection of the constitution.
Wen the cease-and-desist letter was sent out, the head secretary of the hospital came to visit us. He insisted that the director had the right to change Mr. C’s position. If he could not accept it, he would accuse him of being negligent in work. This message told us the director never had the intention to restore Mr. C’s job. Furthermore, once again, another person was informed of Mr. C’s private secret. Without any positive response, Mr. and Mrs. C decided to solve it through the lawsuit after counseling the lawyer. This is the first case in Asia that a PWA decides to fight for his working right through the lawsuit. 8 In May 2003, Mr. C’s lawyer tried to bring in the lawsuit both in the criminal (to accuse the director of violating privacy) and the civil (to ask for the payment for the damage in his privacy and job) courts. In September of the same year, the first trial in the criminal court began. We applied for a secret court. The persecutor did not call Mr. C to the court, but he is allowed to audit in the court as the accuser in the case. One thing really made Mr. C impressive when the persecutor found him in the court and surprisingly said, “I do not ask you CASE THREE
to come to the court. Aren’t you afraid of infecting others? Anyway, you are here so you can stay.” Mr. C said, “I really felt deeply sorry for the persecutor because an intellectual should not have this misconception. He might not understand the disease well, or he wouldn’t act like a common person who only emphasized the possibility of infection. I did feel I was hurt again at that moment.” Anyway, Mr. C was not shocked by this biased language but tried to play the role of an educator. He told us, “At that moment, I tried to teach the persecutor some correct knowledge about AIDS such as how it was transmitted, what did the amount of viruses mean, and what was CD4. Then I told him I could never infect others with the disease under this kind of situation.” From Mr. C, I seem to see how a fighter for his right has transformed into an educator of the public. In the whole process of fighting for his right, it becomes necessary for him to play the role of teaching others what is AIDS with full patience. One side of the story was that Mr. C’s lawyer actually knew very few about AIDS before Mr. C taught him. Through the interaction with Mr. C, the lawyer gradually understood the absurdness of forbidding an HIV-positive doctor to treat patients. This belief made him not only has a more CASE THREE
strong will to fight for Mr. C, but also decide to charge Mr. C less lawsuit fee in order to show his personal support to Mr. C. However, one interlude happened in this first trial had already foretold the difficulty of this case. 9 To PWA, privacy is always their basic concern, because the violation of their work right often comes after the exposure of their secret disease. When a rumor has developed around the unnamable disease, they will usually be forced to quit the job. Therefore, to protect the work right of PWA is to protect their privacy first. When Mr. C was informed of the fact that he was infected, one of his patients (also an employer of the hospital) immediately cancelled the operation appointed with Mr. C. Obviously the head of the examination department, the director, the head secretary, and even many patients’ families seemed all know this fact at the same time. Later, we found this message was revealed from the director, but no only wanted to testify this fact. The director then could conveniently defend himself by emphasizing that “the fear of nurses” and “the protest of people” might cause more trauma on Mr. C. His forbidding Mr. C to treat his patients was CASE THREE
to protect him. Then the patient who cancelled the operation testified that he just simply did not need the operation because he had recovered. When we tried to use the copy of the diagnosis to prove that what the patient said was not the truth at all, the prosecutor still concluded that every patient had his/her right to choose the treatment he/she wanted to accept, so this could not support our argument that Mr. C’s secret must have already revealed to the patient. In his verdict, he even wrote that, “Maybe Mr. C’s over worries of his disease make him believe others have already doubted his secret disease. This might just be his own psychological problem.” Finally we have to admit that since no one can testify if the director has revealed Mr. C’s secret, the case can never be established. The final responsibility might even only be laid on one examiner in the examination department. The privacy of Mr. C is vividly violated, but there is no one he can sue, and no law to protect him. 10
Then we decided to bring in the lawsuit through another way. We hoped to prove that the whole reporting procedure of the disease was a mistake in the hospital. As we know, when a PWA is found in the examination department of a hospital, the first person this examiner should inform is the official health authorities. Or the head of the examination department will report it to the official health authorities after he/she collects the data reported by the examiners of the department. We have never heard in any case that a director of the hospital should be informed of this message. The director is not an official of health organization and the content of his job has nothing to do with AIDS, so his knowing of Mr. C as a PWA will absolutely cause the violation of Mr. Câ€™ s privacy in term of law. In order to clarify this doubt, the court first sent an official document to CDC to make sure how the examination department should report a PWA case. Should it be directly reported to the health authorities, or should it be reported through the director. Then in June 2004, CDC responded the question with a official document in an ambiguous language, which indicated that, â€œThe law does not regulate if the director should report the case, but CASE THREE
all the hospitals can establish their inside reporting procedure. This report should not be delayed for more than 24 hours and should be regulated under the item 6 of AIDS Prevention Law. We really cannot agree with this answer because it contradicts with the original spirit of the item 6 of AIDS Prevention Law. If the original spirit is to emphasize the protection of privacy, the so-called inside reporting procedure will only cause more people to know the secret. When CDC allows the hospitals to set this kind of inside reporting procedure, at the same time it also allows the examination department to send the message to other departments of the hospital. According to this document, the prosecutor then judged that the director, or the vice director did nothing wrong to be informed of Mr. C as a PWA. This verdict actually did nothing to the fact that Mr. Câ€™s privacy and work right were seriously violated. One month after the appearance of the document, a one thin page document on which the inside reporting procedure of the hospital was written, was suddenly presented to the court. The document, approved by Infection Controlling Committee of the hospital, vividly indicated that the director should be reported to.
Because the document had never appeared before, and Mr. C, as a member of this committee, had never heard about this procedure, we really doubted that authenticity of it. Even so, the court finally judged that we needed evidences to prove this was a forged document. If so, we could begin another lawsuit. The final judge was: No matter if Mr. C’s privacy is exposed to the whole hospital employees or not, there is not direct evidence to prove who should be responsible for it; at the same time, because the reporting procedure will cover a lot of departments, it is hard to judge who will reveal the secret. The final result shows that the director and the vice-director have the full right to know Mr. C’s privacy and the court cannot prove they improperly help to spread it. This is really a bad news to PWA’s privacy. 11 What is the work right of PWA in the medical field? Is it appropriate to transfer Mr. C’s job from a doctor to a file manager? According to the official document of Health Department, or the cases in the court outside Taiwan, or some information from the Internet, HIV positive medical workers should still keep their original job. The fear that they might transfer AIDS to their patients not CASE THREE
only cannot be scientifically testified but also lacks real case to support it. Our social worker counseled the famous AIDS professor Dr. David Ho. about this case. He answered: “My position is very clear, the same as CDC. All the medical workers should not be deprived of their original job out of HIV, this is also the policy of CDC in America.” Before the lawsuit, in the negotiation, Mr. C had already promised to follow the regulations of Health Department that he wouldn’t adopt any “intrusive treatment.” That is, in his regular treatment, he wouldn’t have any “operation” and would avoid any intrusive “treatment”. According to one American medical journal issued in June 2005, HIV positive doctors still can give some operations, which included the operations in Mr. C’s department. That is, Mr. C will be allowed to give operations according to this standard, not to mention the face to face diagnosis of patients. However, in the court, the accused only kept repeating some out-of-date information; for example, even saliva would transfer AIDS, so HIV positive doctors needed to wear a special uniform to protect their patients from being infected. This would seriously influence the hospital’s business. The final judgment seemed to also agree with this point and stated that, because Mr. C would have to wear “glove, mouth CASE THREE
mask, eye mask, and protection clothing” in order to “fully protect” the patients, the precision of the operations will be influenced. Therefore, “in order to protect the public benefits, to transfer his job to a position which does not require him to wear any protection clothing is proper to Mr. C.” When the judge thought Mr. C would have to wear “glove, mouth mask, eye mask, and protection clothing” when treating his patients, he obviously misunderstood how AIDS virus was transferred. It was because of this, he judged that if Mr. C continued his job, he would damage the “public benefits,” so this transfer of job was a fair treatment to Mr. C. Social and political pressure finally makes the judgment ignore the “scientific” fact. 12 What could support Mr. C in the whole process of lawsuit? “When we failed for the first time, I really felt like giving up,” as Mr. C remembered. “I thought when the director said no one would dare to ask for my treatment even I opened my own clinic, I really considered to open one to testify if what he said would be true.” “To ask me to manage the patients’ file was just like to ask CASE THREE
me to give up my whole life. It was totally unacceptable. First I thought I just tried to fight for my own right, but when I heard more and more stories from your organization, I thought what I did was also for other PWA who had lost their job like me.” He continuously said, “In comparison with others, I might be relatively more qualified to proceed the lawsuit. If I could not play the role of a pioneer in such a lawsuit, who else could?” Mr. C is right when he says no one else but him can afford the lawsuit. Actually, his lawsuit not only needs support from his family—his wife and children, but also the workers of our association and some experts we counseled. Besides this big internet of human labors, the whole expenditure, many embarrassing experiences in the court, and the timeconsuming process of collecting evidences, all make the lawsuit difficult to face. Mr. C’s wife suddenly shared her experience with our social worker and said, “Once I went to your association and overheard your chat with a kid who was forced to drop out of school because of AIDS.” “Maybe he still could find some comfort in your place, but when he stepped out, he still had the face the cruel fact that both his parents and school did not want to accept him. He really had no other place to go.”
Mr. C nodded and said, “When my wife came back and told me the story at that day, I felt quite sad for two days because I knew that terrible sense of being lonely.” Then Mr. C’s wife continued, “When I went home, I kept thinking about the kid who is at the same age of my child. I didn’t know how he was infected, but how could his parents give him up. When I remembered the scene, I told my husband that his lawsuit was very important. I said, ‘It is PRAA that helps you to stand up. After the lawsuit, you can consider to provide some help such as going there to work to fight for others’ right.’” Then she took a big breath, “I thought the child’s story was a strong encouragement to him to continue the lawsuit.” Besides Mr. C, there are more victims, though they are not so strong as Mr. C and can stand out in the court. However, their stories still can become encouragement to Mr. and Mrs. C. The couple realize that the lawsuit is not only for themselves but also for others, which will explicitly display the injustice in our society. 13 Mr. C said, “My son once told me that ‘I might not be able to win the case now, but a similar case will win after 20 years CASE THREE
because people will have more sufficient knowledge at that time.’ How considerate my son is!.” I just hope it won’t really have to take 20 years to win the battle.
Chapter 5 CONCLUSION
From the three typical cases mentioned above, it can be inferred that, working rights of PWH/PWA can not be adequately guaranteed in Taiwan, mainly because of structural defects and social bias against PWH/PWA. On the whole, there are four key factors abstracted to explain the phenomenon that the working rights of PWH/PWA in Taiwan still have been ignored or discriminated.
Disputes from Regular Physical Examination for Employment From working experiences of PRAA these years, the first impediment against the working rights of PWH/PWA is current regulations over physical examination with HIV test included for employees in many public sectors and private ones. For those with HIV/AIDS, if their HIV-positive status are somewhat revealed, they are liable to be downgraded or dismissed from their positions, or to be pressured into resigning from their jobs out of unfriendly atmosphere in their working places. As a result, protecting privacy of PWH/PWA has absolutely taken the priority in ensuring the working rights of those with HIV/AIDS. Nevertheless, from all the cases above, it is apparent that the results of HIV test can not be entirely kept confidential only CONCLUSION
among the executives concerned. Given that their HIV-positive status is inappropriately disclosed, PWH/PWA are usually faced with direct threats of dismissal from their jobs by their managers. Along with the direct threats rapidly come harmful rumors against the PWH/PWA employees. Apart from anxiety and anger, plus isolated and defensive attitudes from other colleagues, employees with HIV/AIDS are always compelled to resign from their jobs, even though there is no forceful order from the managerial level. In brief, nowadays, it is the inhuman and unethical mechanism of physical examinations that breeds rude disclosure and harmful discrimination in most of the working fields in Taiwan, as threatens and even endangers PWH/PWAâ€™s rights and opportunities in employment. Strictly speaking, there are two main purposes of physical examinations. On the one hand, physical examinations have been serving as a prevention to filter out those applicants disqualified for job requirements, lest the unqualified applicants should take a high risk of getting more badly ill in the working fields. On the other hand, concerning the economic benefits, physical examinations have been acting as an index to help CONCLUSION
the government and the incorporates effectively make their investment in human resource training, for fear that some employees should be disabled from normally keeping on working without any warning in advance. However, PRAA affirms that HIV/AIDS is definitely not a kind of occupational disease. In most situations, as long as people with HIV/AIDS regularly take the medicine and have the checkup, the functions of their immune system are almost no different from those of people uninfected with HIV, and the amount of HIV within obviously lessens even to the low extent that HIV can not be technically scanned. HIV/AIDS has been a controllable chronicle disease, so it is almost impossible for PWH/PWA to get too seriously ill to work any longer, just due to any factors of HIV. Therefore, PRAA hereby maintains that the HIV test not be included in any form of physical examination, whether to new job-hunters or to current employees, let alone any standards on hiring and promotion should be related to any result of the HIV test. Together with the cooperation and collaboration from the other NGOs through the years, PRAA has been firmly urging and concretely requiring all the public sectors and private ones loosen, and furthermore, thoroughly cancel and remove every CONCLUSION
unreasonable settlement and inhuman management on such the discriminatory HIV test in physical examinations1.
Exclusion of the Current Rules and Regulations Faced with HIV-related infringements against their working rights, employees with HIV/AIDS in private companies often choose to abandon their opportunities or even positions in the working field. It is mainly because private companies, unlike public sectors in the government, are not obliged to abide by rules and regulations protecting the working rights of PWH/PWA as official formality to respect human rights. In most private companies, those in the administrative level, with excuses of internal personnel orders, are inclined to command managers in charge to rapidly interview employees whose HIVpositive status has been known. Then, in most of the cases, employees with HIV/AIDS are required to resign ofâ€œtheir own will.â€? From the practical working experiences of PRAA, it can be found that currently larger private companies in the country are relatively cautious to avoid any rude violation against the working rights of employees with HIV/AIDS2.
However, on the contrary, PRAA has assisted several PWH/ PWA working in smaller private companies who got a warning that they either submit a physical examination report including the HIV item or leave away without any salary paid. In other words, generally speaking, employees with HIV/AIDS in smaller private companies are even more frequently afflicted at irrational attitudes and at disrespectful treatments. It can be heartbreaking that, considering it helpless to fight against the whole company, then giving up cooperating with PRAA, many of the PWH/PWA encountering violations against their working rights eventually yielded to the demands employers made or even escaped from the negotiation with employers. Unable to return to the positions they had stood in before, these PWH/PWA, under great pressure, later could not have other options but to seek for jobs with poorer working conditions in wages or in environments. On the other hand, as mentioned before, it is noteworthy that, for many public sectors of the country, it has been nothing more than “obligation” or “formality” to abide by rules and regulations for working rights of PWH/PWA. Namely, obstructions existing in private companies do not get improved in public sectors in Taiwan. Instead, similar situations can be worse in public sector. It is because HIV/AIDS has been CONCLUSION
defined as â€œcommunicable diseaseâ€? in relevant control act, and distorted quotation and malicious explanation from public sectors deteriorate difficulty and hindrance against working opportunities of PWH/PWA. In April, 1987, the HIV/AIDS Prevention Team in Department of Health declared that another act would be enacted to enhance positive effects for HIV/AIDS prevention, for the reason that both clinical syndromes and spreading routes between HIV/ AIDS and other communicable disease are different, so those preventive methods applied to general communicable disease can not be suitable for HIV/AIDS prevention3. Later on, after discussing and broadening the official definition of communicable diseases, Center of Disease Control (CDC), with the aim of surveillance and prevention, placed HIV/AIDS into the fourth type of communicable diseases as another special kind separated from other general ones. Nevertheless, such categorization lacking in correct concerns has caused a lot more panic and misunderstanding among the public that HIV/AIDS absolutely is a kind of communicable disease and that PWH/PWA should be segregated from society. To make matters worse, many employers in public sectors take advantage of this official definition to exclude and expel applicants and employees with HIV/AIDS4.
Based on the rules in Standards for Physical Checkup for Civil Service Examination, only when those with communicable diseases stay medically untreated, quite needing immediate healing in isolation, should they be regarded as not passing physical examination. Although it is not clearly indicated that PWH/PWA should be rejected in many public sectors, yet all those with officially defined communicable diseases, including PWH/PWA, have been labeled as “no-pass” in physical examination. The fact that there is no need for PWH/PWA to take immediate healing in isolation as HIV/AIDS poses no direct threat to people in the working field has been totally ignored. Namely, it has been over-emphasized in most public sectors in Taiwan that HIV/AIDS unarguably is an officially recognized communicable disease, so not until PWH/PWA can be “cured” can they be considered possible options for any position. From the above, obviously, the official recognition of HIV/AIDS as another special different kind communicable disease does not necessarily bring seeable benefits to prevention work, but annoyingly cause violation against working rights of PWH/PWA. That is, the managerial level in public sectors follows laws protecting rights of PWH/PWA just on the surface, but actually distorts official definition of HIV/AIDS into a threshold without CONCLUSION
scientific evidence to block PWH/PWA from working in public sectors. By and large, sad to say, whether in private companies or in public sectors in the country, large part of employers have still lacked basics of HIV/AIDS, let alone fairly treat applicants or employees with HIV/AIDS. Another part of employers even know the range of the disease spread can be quite limited, but they have still unreasonably presumed those with HIV/AIDS in working field are sure to cause great harm to public health and group security, and that PWH/PWA are not suitable for any jobs in much contact with other people. Some employers hold that PWH/PWA should be blocked out from working fields just because of concerns about possible collective anxiety and panic. Consequently, working rights of PWH/PWA has been harshly challenged for many years. In reality, such imaginary prejudices and meaningless worries seldom originate from reliable forensic evidences. It has long been medically proved that PWH/PWA with proper treatment are able to own as good working competence as those without HIV/AIDS. It is needless and immoral to restrict types, modes, and conditions in working opportunities of those with HIV/AIDS.
Inadequateness of HIV/AIDS Prevention Act Moreover, there actually has existed another long-lasting defect in the current law system. In Taiwan, the Constitution is at the top of the hierarchy, laws in the second place, and regulations in the lowest level. Within the level of law, special laws are superior to ordinary laws. On this ground, since Article 6(1) in AIDS Prevention and Control Act5, a special law for HIV/AIDS, reads, “HIV-infected individuals…shall not be treated in the areas of schooling, medical care, employment, etc. in a discriminatory or unjust manner.” Therefore, it is justifiably reasoned that, regarding the disputes of physical examinations including HIV tests, any unreasonable personnel regulations in public sectors or in private companies has contradicted the law, and should be read lawfully ineffective. However, questioned on their infringement against employment of PWH/PWA, the very most of the public sectors and the private companies have replied that PWH/PWA with “a communicable disease” should be forbidden from contact with people in the working fields, as has been regulated into the inner standards for qualified employees in the organizations. Despite the fact that there is a clear law to protect working rights of PHW/PWA, yet in actuality, as a special law though, AIDS Prevention and Control Act has not exerted its original CONCLUSION
protective function for working rights of those with HIV/AIDS. In many of the cases touching violation against working rights of PWH/PWA, quite a few PWH/PWA-friendly lawyers have said, â€œThe narratives in Article 6(1) of AIDS Prevention and Control Act, without further explanations, are too vague and obscure to be adopted as an effective resort in relevant cases.â€? Even worse, since the act was passed and brought into force in 1997, none of the right-violating, thus theoretically law-breaking, private companies or public sectors has ever been substantially punished. It is deplorable that the one and the only law set for protecting working rights of PWH/PWA has been reduced to nothing except a piece of announcement lacking in real authoritativeness.
Negligence of the Main Authorities Concerned It is the responsibility that CDC, as the main authorities concerned in the Taiwan Administration on HIV/AIDS issues, should shoulder to make right and clear judgments over human rights for PWH/PWA. However, it is tricky that CDC has seldom spontaneously dealt CONCLUSION
with any cases over right violation against PWH/PWA, let alone has shielded PWH/PWA whose working rights get encroached. All CDC has done is nothing but â€œorally and literallyâ€? emphasize the significance of Article 6(1) in AIDS Prevention and Control Act6. On the one hand, CDC has continued stating that stigma and discrimination should not exist, and that human rights of PWH/ PWA should be protected. Nevertheless, on the other hand, CDC has always been playing a passive role in the real case of right infringement against PWH/PWA, without taking active measures to guard basic working rights of PWH/PWA. Such negligence represents a rude, careless attitude of CDC towards PWH/PWA. Even if some right-violated PWH/PWA had tried to contact CDC for assistance, reactions from CDC were lukewarm, and its standpoints were ambiguous and swinging7.
SUMMATION Various phases of violation against working rights of PHW/PWA have been depicted in this narrative report. PRAA holds that HIV/AIDS education not only should spread correct information on HIV/AIDS transmission routes, but also should indicate the CONCLUSION
malicious social situations against PWH/PWA. Hence, PRAA expects readers for this report to know more real obstacles and struggles PWH/PWA have had. Such the educative process is imperative, especially when the population of PWH/PWA has been growing these years. Everyone in society must learn to work together with PWH/PWA in their working places. PRAA has also found that the current rules and regulations not only turn into malfunction but also fall into the structure of bias on right violation against PWH/PWA. PRAA still maintains that protecting basic human rights of PWH/PWA neither conflicts any public interests nor curtails the benefits of HIV/AIDS prevention. On the contrary, effective HIV/AIDS prevention ought to include the principles for human rights of PWH/PWA. In fact, in the last two decades the prevention conducted in the blocking and threatening ideology has reinforced public panic to HIV/AIDS and reluctance of PWH/PWA for HIV-test and further treatment. Eventually, even if there are charge-free medical resources, many PWH/PWA are stranded into the obstacle that they cannot find suitable jobs for living. All in all, this Leviâ€™s-sponsored narrative report is aimed CONCLUSION
at assisting all friends with or without HIV/AIDS in more understanding the substances of their basic human rights in working and employment. At any rate, there should be no infringement against PWH/PWA just because of HIV/AIDS status. Here, PRAA has been solidly standing, open to any possible efforts to make a difference, with anyone who shares the same ideals for a more equal, and more humane society.
For instance, in 2004, it was then ruled in the regulations of
physical examination in Civil Aeronautics Administration that those with HBsAg(+) not be permitted to take the entrance exam for the position as fire-control technicians. The applicants with HBsAg(+) made a protest in group against the rule, arousing a big social dispute. Later on, law professionals stated that the worry of Civil Aeronautics Administration, concerning possible collective infection and physical incapacity of those applicants with HBsAg(+), were lacking in supports of scientific evidence. Besides, the law professionals declared the saying that those with HBsAg(+) might cause panic among colleagues was a problem of education for employees in Civil Aeronautics Administration itself, and that the administration should not have guarded its CONCLUSION
inappropriate convenience at the sacrifice of the working rights for applicants with HBsAg(+). The officials of Department of Health in Taipei City Government warned that the rule had violated Article 12 of Communicable Disease Control Act, “Unless for reasons of public control, patients infected by communicable diseases shall not be refused schooling, employment or given any other unfair treatment,” issuing a formal order for correction. Eventually, under pressure of the general public and instructions of Minister of Transportation and Communications, the rule was hence canceled, and the applicants with HBsAg(+) were qualified for the entrance exam. On the other hand, it has been proven long that, with the same route of transmission, HBsAg(+) is much more likely to spread out than HIV. Even so, compared with the rapid cancel on the regulation of physical examinations including HBsAg(+) from Civil Aeronautics Administration, PWH/PWA have not been long provided comparatively fair opportunities to seek for jobs in extremely most similar cases, whether in public sectors or in private ones. 2
For example, as to Case One, when the employee’s HIV-positive
status got exposed, his managers then attempted to persuade him to accept a kind of favorable retirement project in order to make him out of the job. After PRAA offered assistance to the client in dealing with the company, the managerial staffs, for fear that the inner stability and outer reputation might be damaged, agreed to let the client continue with his original job.
In November, 1987, the head of Department of Health stated in
his report to Legislative Yuan, “…all the communicable diseases mentioned in Communicable Disease Control Act are prone to be acute, with short incubation period, spreading mostly via food, air, living mediums…yet HIV/AIDS apparently is a chronicle illness, with quite long incubation period, spreading mainly via sexual intercourses and blood transmission…there apparently is great difference in preventive methods between HIV/AIDS and other so-called general communicable diseases, so it is appropriate to set up another special act on HIV/AIDS alone.” 4
For example, the former manager of Taipei Mass Rapid Transit
(MRT) once responded in the news media to the doubt that PWH/PWA are forbidden to take a job as a driving staff in the company, “...it is inadequate for those with any kind of communicable diseases listed in the current official regulations to serve the position as a driving staff, not only to PWH/PWA…as it is inappropriate for those with pneumonia to be engaged in jobs for cooking in the food business…” It is questionable that there should be merely a small portion of those with communicable diseases, not every one of them, unqualified to be a driving staff. Moreover, it is tricky and absurd to compare HIV/AIDS with pneumonia as these two are essentially different. 5
Article 6(1) in AIDS Prevention and Control Act has been the
only official statute with little mention of ensuring and protection for working rights of PWH/PWA. In 1990, HIV/AIDS prevention CONCLUSION
and control was first discussed in the Legislative Yuan. HIV/ AIDS was then still regarded as an incurable disease, so working seemed to be impossible for those infected with HIV/AIDS. Consequently, only concerns for privacy of PWH/PWA were literally legalized, but working rights of PWH/PWA were totally ignored. Later on, in 1996, while the act needed revising, PRAA was set to actively participate in the process of law revision with lobbying campaigns of PWH/PWA in person, who again stated the importance of working rights for those with HIV/AIDS. After much effort had been made, Article 6(1) was finally enacted in AIDS Prevention and Control Act. 6
In the case two, CDC failed to indicate the fact that Taipei Mass
Rapid Transit (MRT) Co. illegally rejected PWH/PWA, let alone ordered or urged Taipei MRT Co. to correct the unreasonable regulations on the routine physical examinations. It was Taipei Labor Bureau instead that rapidly held a meeting for the case, deciding that the case was due to employment discrimination and Taipei MRT Co. should improve the situation. Nevertheless, for lack of great pressure from public opinions and lasting concerns from the authorities concerned, Taipei MRT Co. has not yet corrected the regulations of the routine physical examination for employees until now. 7
In the case three, it was because the CDC representatives held
an â€œoutsider mentalityâ€? that the client to PRAA was forced to appeal to the lawsuit. Such irresponsible mentality later directly CONCLUSION
influenced the debating result in the court. For instance, CDC wrote down in the written reply to the court that “…CDC does not object to any internal procedure for notification on HIV/ AIDS cases in the hospital…” The statements fell into distorted legitimacy for the law-breaking hospital to expose privacy of the client to PRAA.