CERD Rules that Korea’s Mandatory HIV/AIDS Testing for Foreign Employees Violates the Convention
On May 1, 2015, in L.G. v. Republic of Korea, the UN Committee on the Elimination of Racial Discrimination (CERD) ruled that mandatory HIV/AIDS and drug testing for foreign English teachers violated articles 2, 5, and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). [UN News Center Press Release]. See Committee on the Elimination of Racial Discrimination, L.G. v. Republic of Korea, No. 51/2012, Judgment of 1 May 2015.
Petitioner, L.G., is a New Zealand national who worked as an English teacher at the Uslan Metropolitan Office of Education (UMOE) in Korea. After she had signed her employment contract, UMOE told L.G. that, for purposes of her visa, she was required to take an HIV/AIDS test and an illegal drugs medical test, neither of which Korean teachers or ethnically Korean foreigners were required to take. L.G. complied, believing the tests screened for HIV/AIDS and amphetamine and opiates. However, she later learned that she had also been tested for cannabinoids and syphilis, tests for which she did not provide consent. See id. at para. 2.5.
After one year of work, UMOE invited L.G. to continue teaching for an additional year, on the condition that she be tested again for HIV/AIDS and illegal drugs. At this point, L.G. refused to be tested, on the basis that the tests were discriminatory and insulted her dignity. She also noted that while she would be willing to undergo medical examinations to which Korean teachers were also subjected, she was not willing to undergo tests that only foreigners were required to take. See id. at paras. 2.6-2.7.
Petitioner claimed that the HIV/AIDS and drug testing policy reflected a targeting of foreign English teachers, who have been “widely stigmatized and negatively stereotyped in Korea” by a wide range of individuals and groups, including public officials, the media, and civil society organizations. See id. at para. 2.3. In particular, L.G. pointed to the “Anti-English Spectrum” internet group, which advocated for mandatory HIV testing for foreign English teachers, and was even invited by the Korean government to contribute as an expert to a consultation that led to the creation of the policy regarding compulsory medical testing policy for foreign teachers. See id. at paras. 2.3-2.4.
L.G. also argued that mandatory HIV/AIDS testing and its impact on potential employment violate international standards, citing the International Labor Organization, which rejects HIV screenings in employment and has stated that HIV/AIDS screening should not be a requirement for job applicants or employees, and that job applicants or employees should not be forced to disclose HIV-related personal information. See International Labor Organization, Code of Practice on HIV/AIDS and the World of Work, June, 2001, at paras. 4.6-4.7.
Given that the State did not object to the admissibility of the communication, and that the petitioner had complied with admissibility requirements, CERD declared the petition admissible. See id. at paras. 6.2-6.3.
Decision on the Merits
CERD explained that the main question at issue was whether the State had fulfilled its obligation to act after the petitioner had reported that UMOE’s employment policy and her loss of employment were racially discriminatory. L.G. had made a complaint to the National Human Rights Commission of Korea (NHRCK) and had also asked the Korean Commercial Arbitration Board (KCAB) to mediate between her and UMOE. However, both institutions had dismissed the case. See id. at paras. 2.13-2.14.
The Committee thus found that the State, through NHRCK and KCAB, failed to assess L.G.’s discrimination claim regarding the mandatory HIV/AIDS and illegal drug testing policy. The State did not take any steps to investigate the complaint, did not assess whether the policy was in compliance with ICERD, and did not determine whether the testing policy was rooted in racial discrimination. On this basis, the Committee found that the State had violated its obligation under Article 2 of the Convention to take steps to eliminate and prohibit racial discrimination, including by changing or revoking laws or by implementing legislation, if necessary. See id. at paras. 7.2-7.3.
The Committee also found that the State had violated its obligation under ICERD Article 6 to protect all individuals within its jurisdiction against racial discrimination and to assure that individuals could seek reparation when they suffered any damage stemming from such discrimination. Additionally, the Committee characterized mandatory HIV/AIDS testing for employment or residence purposes as discriminatory and harmful, stating that these measures contradict international standards. The Committee found no justification, on public health or other grounds, to support the mandatory testing policy for foreign English teachers who are not ethnically Korean. See id. at para. 7.4.
Additionally, the Committee noted that during the arbitration process, UMOE officials had even admitted that these tests were used to measure the values and morality of foreign teachers. The Committee found that the mandatory testing, which L.G. refused to undergo and led to her losing her job, violated her right to work as enumerated in Article 5 of the Convention, which requires States parties to guarantee the right to work free from racial discrimination. See id. at para. 7.4.
Finally, the Committee cited its own General Recommendation on discrimination against non-citizens, which urges States parties to refrain from discriminating against non-citizens with regards to employment practices and work requirements, to support its findings. See Committee on the Elimination of Racial Discrimination, General Recommendation No. 30: Discrimination against non-citizens, 13 August 2004, para. 33.
Recommendations to State
CERD recommended that the Korean government compensate L.G. for moral and material damages caused by the violations of the Convention, including compensation for lost wages when she was unable to work. See L.G. v. Republic of Korea at para. 9.
The Committee further recommended that Korea review and abolish any State and local regulations and policies that create or perpetuate racial discrimination in the field of employment. The Committee encouraged the State to implement measures, for example in the form of public campaigns and official statements, to counter hostility toward foreigners. Finally, the Committee urged the Korean government to extensively publicize the Committee’s opinion. See id. at para. 9.
The Committee concluded by requesting that the State provide it with information about the measures it takes to comply with the opinion within 90 days.See id. at para. 10.
To learn more about the Committee on the Elimination of Racial Discrimination, please visit the IJRC’s Online Resource Hub.