Published: February, 2010
Baxter Laboratories Accused of Discrimination Against PLWA
Ecuadorian Branch of Transnational Fires HIV+ worker
By Richard Stern*
Baxter Laboratories Ecuadorian division has fired a person living with HIV/AIDS (PLWA) and he has alleged that the dismissal is based on discrimination due to his HIV status. The Ecuadorian Coalition of People Living with HIV/AIDS (CEPVVS) denounced this situation in a press statement released on Tuesday February 2nd. Baxter is an international company working in the area of Health Care based near Chicago, Illinois. It has numerous subsidiaries throughout Latin America.
According to CEPVVS, Carlos (not his real name) was fired on October 21st, 2009, after more than six years of working for Baxter. Carlos immediately filed an appeal with the Ecuadorian Labor Ministry. The Labor Ministry ruled quickly that under Ecuadorian law that a person cannot be fired because of their HIV status, and he was temporarily reinstated after an order was signed by a Labor Ministry official.
However, less than a month later he was fired a second time, after Baxter, choosing to ignore the Labor Ministry’s ruling, appealed the previous decision and a district court judge ruled in their favor. Interestingly, on November 20th, Judge Susana Vallejo, of the district Court of Quito, had initially ruled in favor of Carlos and issued a restraining order against Baxter, mandating that he not be dismissed. However, just a week later , on November 27th, she reversed her own decision. The reasons for this change are not clear. Lawyers Jose Luis Nieto and Diego Coronol of the non-governmental organization Kimirina, which has supported people living with HIV/AIDS in Ecuador for the past 10 years, have now filed an appeal in the Ecuadorian Supreme Court.
The Ecuadorian PLWA Coalition issued the following statement about the case: “We reject discriminatory practices against PLWA, which are acts that are completely inhumane. We also feel that such acts are obstacles against progress towards controlling the epidemic in Ecuador, therefore we ask that the judges take into account the Constitution, as well as international precedents, and the laws that are relevant in this case in order to …. acknowledge the violation of the rights of the plaintiff, and we also ask that they hold the company involved (Baxter) responsible for the damage that has been done, in order to establish a precedent that irresponsible acts such as these are not repeated.”
Carlos had, in fact worked for Baxter for six years, , but it was not until two months after his HIV status was discovered by the company, that he was fired. During the previous six years, he had rigorous evaluations every six months. In order to continue with company for such a long time, he would have had to have received at least satisfactory, if not outstanding evaluations. When I confronted Ms Angela Zuluagua, Baxter’s media representative in Latin America, with this fact, she claimed that his performance apparently must have “suddenly deteriorated” which would have resulted in his dismissal.
Carlos Own Story
Carlos was interviewed by this writer on February 7th. He described the following chain of events.
“For the first four years of my employment, beginning in 2004, I worked at a company that was legally owned by Baxter but used another name. For legal reasons, the Ecuadorian government required that the company name be changed to Baxter and my employment continued with a contract from Baxter in October of 2007. My evaluations every six months were always outstanding. I am a specialist in repairing equipment for dialysis. In February of 2009 the company paid for me to go to Mexico to receive additional specialized training in this area. A short time later I was sent to Argentina to train Baxter staff members there.
….Then around August 20th of 2009, I was called in by Baxter’s company physician who was routinely providing Hepatitis B vaccinations to company employees. At this meeting I explained to Baxter’s physician that the Doctor in charge of my AIDS treatment had advised me not to receive this vaccination, for reasons due to my HIV status and low CD4 count. Baxter’s physician accepted this explanation, but asked me to notify the company Director, as well as my immediate supervisor in writing. She told me that nothing could happen to me because Baxter would not discriminate against people with HIV/AIDS. I sent the e-mail letters in late August to my supervisor as well as the company’ Director. I never received any reply at all from either of them.
….A short time later, for some reason, my right to park in the company parking lot was revoked. Then, after nearly 6 years of working without having to punch a time clock, I was suddenly required to punch a time clock. People who had eaten lunch with me at the same table for years, no longer would eat with me. Then the password on my computer was changed. Similar harassment continued.
….On October 21st roughly two months later, I was called in to meet with the company lawyer. Offering no explanation, he told me I was being terminated and asked me to sign a letter resigning from the company, in which case I would receive $8,000 as a “bonus.” I refused to do so, and the lawyer became angry and threw the check on floor, and told me that I was fired anyway. He also said since I would not sign the resignation letter,, that it was just as well, since Baxter could save money by paying the fine to the Ministry of Labor.” (The fine paid by Baxter was for not complying with the Ministry’s reinstatement order, whereas if Carlos had resigned, the company would not have been in violation of the order, and would of course lose his rights to due process.)
Baxter’s Various Contradictory Responses
This writer conducted two separate interviews on February 5th with Baxter’s official media representative Angela Zuluagua, based in Colombia. Her approach was puzzling.
In the first interview had left me with the impression that Carlos could not possibly have been fired because he had AIDS, because Baxter had not known about his HIV status until after he was fired. Later, after I had spoken to Carlos lawyer, I was informed that Carlos himself had notified Baxter of his HIV status on August 20th, 2009 because of the circumstances described above. But when confronted with this fact, Angela backtracked and claimed that she had in fact acknowledged Baxter’s knowledge of Carlos’ condition prior to his termination in the earlier interview. Finally, Ms. Zulugua sent the following statement to me on February 7th
Per our conversation here is Baxter's statement regarding to our ex
Baxter´s decision to terminate his contract was based on legitimately
objective and non discriminatory reasons, in accordance to company
principles and policies.
Baxter rejects any kind of discrimination and the rejection of any type of
discrimination against employees is based on Baxter’s global inclusion
strategy, which is directly linked to one of the company’s Shared Values
articulated in the Baxter Leadership Expectations—respect for individuals
and the diverse contributions of all.
Discrimination in hiring, promotion and all other employment decisions on
the basis of race, color, religion, gender, national origin, age,
disability, sexual orientation, veteran status or any other basis protected
by federal, state or local laws is prohibited in Baxter.
In Baxter Ecuador, the company´s commitment with these principles is
absolute and constant.
Baxter understands the critical circumstances and challenges that the
employee is facing as a result of his condition and loss of employment but
the company stands behind its decision.
In an article published in an Ecuadorian newspaper, El Telegrafo, January 4th, 2010, Hernan Barrios, a lawyer for Baxter is quoted as saying that “Baxter asserts that the dismissal of Carlos was due to motives related to his job performance, while with the company.” Yet in another part of the same article he asserts that “once Baxter became aware that Carlos had HIV, the company had to analyze if his job, which was related to providing technical support to maintain dialysis equipment, would affect the patients who received this treatment.” In other words he has acknowledged in this article that intensive scrutiny of Carlos’s work began only AFTER the company became aware of his HIV status, while making the contradictory statement that the dismissal occurred because of his job performance.
On February 4th Baxter’s press spokesperson, Ms. Zuluagua indicated to this writer that she would facilitate a telephone conversation between myself and Baxter Latin American General Manager Carlos Alonso, who is based in Miami, in order to discuss the case. But I never received a call from Mr. Alonso and he did not call me back, although I left five messages for him during the week of February 15th.
Pertinent Legal Issues
Article 11 of Ecuador’s constitution (c) asserts “that all people are equal and are entitled to the same rights, obligations and opportunities. No one can be discriminated against for their ethnicity, birth place, age, sex, religion, orientation sexual… health status, HIV/AIDS status, physical handicap, physical characteristics…the law will provide consequences for any form of discrimination” In Carlos case, Baxter has acted in violation of the Ecuadorian Constitution.
Additionally according to a legally binding ministerial agreement approved by the Ministry of Labor in 2006 the termination of a legal labor relationship is prohibited if it occurs because of health status, specifically including the condition of Living with HIV/AIDS, since this violates the principle of non discrimination elaborated both in the Ecuadorian Constitution as well as conditions which are stipulated in the regulations of the International Labor Organization (ILO).
El Telegrafo also reported in the article previously cited, that Illmer Coello an ex Baxter employee who had once supervised Carlos, stated that the companies assertions that Carlos was fired for poor performance were totally false. “The company has very rigorous evaluation procedures,” said Coello. “If Carlos’s file were to be made public, it would be clear that he never had any negative reports in his evaluations.”
In the same article, Lawyer Maritza Rodriguez, who handled the complaint in Ecuador’s public office in charge of the defense of human rights, (known as the “Defensor de los Habitantes) stated that “leaving a person with HIV/AIDS without employment increases their difficulty in obtaining adequate medical treatment, and denies them the right to an income and to a productive life.” In fact, in Ecuador, a person who was is fired, also loses their access to the state run medical insurance program just two days after their dismissal. They can still resort to a separate Health Ministry program, but this would entail a strong probability that they would have to change medications
Labor Ministry Inspector Dr. Gabriela Garcia had ordered Carlos reinstatement after investigating the case. She sent a letter to Mario Rojas, Director, of Baxter in Ecuador ordering Carlos’ reinstatement because his rights had been violated, basing her decision on “ Clause 81 of the articles of the ILO, as well as article 398 of the regulations of the Ecuadorian Labor Ministry, and the previously cited Article 11 of the Ecuadorian constitution.”
Baxter initially complied with the Labor Ministry’s order and reinstated Carlos. Then as Carlos indicated, he was fired again, on November 17th. Baxter then sent sworn statements to District Court Judge Susana Vallejo. Curiously Judge Vallejo initially issued the restraining order in favor of Carlos on November 20th, but reversed her own decision and ruled against him in her final decision on November 27th. On December 9th, 2010 Maritza Rodriguez, Defensor del Pueblo (quoted above) sent a legal brief to Judge Vallejo, claiming that information provided by her own office to the Court may have been misinterpreted by Judge Vallejo. This document is part of the legal record of the case.
According to Santiago Jaramillo, Director of CEPVVS, “We know of many other cases where people have been fired from their job because of having HIV or AIDS. There are many companies who routinely have their employees take HIV tests. But nearly all of those who are discriminated against decide not to go to court because of their distrust of the judicial system, and their fear of even further discrimination.. Carlos is really the first case that we have taken through the system.”
Discussions and Conclusions
In drawing conclusions about this case it is important to note that Carlos and his lawyers were very willing to speak openly and provide details of the case. However, Baxter officials most directly related to the case refused to return phone calls, and Baxter’s media spokesperson issued the very general statement quoted in full above which does not refer to the evidence or to specific facts, but instead focuses only on Baxter’s general policies against discrimination, as if those policies are “proof” that discrimination could never occur.
Does spokesperson Angela Aguazulu really think that the realities of life for People with HIV/AIDS in Baxter Ecuador are the same as in Chicago, Illinois , where the Baxter anti-discrimination policies are written? It is axiomatic that one would find a greater degree of discriminatory attitudes and practices in developing countries than in the United States and that Baxter’s employees would not be exempt from these prejudices just because they work for Baxter. When I asked Ms. Aguazulu this question on February 4th , she insisted that Baxter Ecuador was no different than Baxter in the U.S., seemingly oblivious to fact that Ecuador did not even provide anti-retroviral treatment until 2001 when it was ordered to do so by the Interamerican Human Rights Commission.. In fact, Ecuador was one of the last countries on the Latin American Continent to provide anti-retroviral treatment to its citizens living with HIV/AIDS.
The silence of the Ecuadorian Director Mario Rojas, who actually fired Carlos, and Carlos Alonso, Baxter’s Latin American Director, is unfortunate and leads to the possible conclusion that they are simply manipulating facts to cover up the truth, which is that Carlos was indeed fired because of his HIV status. Their own lawyer Hernan Barrios contradicted all of Baxter’s previous assertions by stating in the January 4th newspaper article that Carlos’ HIV status was in fact related to the decision to fire him. Why would an excellent employee for six years, suddenly deteriorate so severely in his ability to do his job that he would deserve a dismissal? In fact the dismissal occurred just two months after he voluntarily revealed his HIV status to three Baxter officials including the Company’s Director in Ecuador. Why would he not, after six years on the job, at least have been given a probationary period?
A possible scenario to explain the company’s decision is that, after being made aware of Carlos HIV status in writing, that company officials and Baxter’s lawyers were worried about possible lawsuits, if any dialysis patients became HIV positive and decided to blame the company for this. Because of a shortage of nurses at Baxter, Carlos had been occasionally asked to administer the dialysis treatment although his official job description was related only to the repair and maintenance of the equipment, which would pose no risk at all to patients. An argument could have been by made a dialysis patient that Baxter knowingly allowed an HIV positive person to participate in the dialysis process. Of course Baxter could have easily remedied the situation by having an adequate number of nurses, instead of cutting corners as they were apparently doing. There is no proof of the above possibility, other than the cryptic statement by Baxter lawyer Hernan Barrios in the article in El Telegrafo which it is a possible explanation of Baxter’s decision, but is not a justification for Carlos dismissal.
It is also unclear but doubtful if administering dialysis even implies a risk for either patient or caregiver, as long as universal precautions are taken, as in the case of other medical personnel performing any medical activities. It is important to note that Baxter does not require its dialysis nurses to be tested for HIV. Apparently there has been no opportunity in the Ecuadorian judicial system to cross examine Baxter employees under oath, such as Company Director Mario Rojas, or to present witnesses, such as Carlos former supervisor Illmer Coello.
In cases such as this it is always difficult to prove discrimination when the Companies justify their position, as Baxter has done, by suddenly claiming that the dismissal was due to factors related to the poor quality of the employee’s work, and not to Carlos HIV status. However, Carlos has an unusually strong case since he worked for the company for six years, apparently without documented problems related to his job performance, and then was fired just two months after deciding to reveal his HIV status to company officials. Baxter has claimed in its legal summary sent to Judge Vallejo that it has some documents from July of 2009 (prior to their awareness of his HIV status) indicating that his performance was deteriorating, but Carlos was never told about or shown these documents. Why would he not have been told something, if his performance was really deteriorating?
Ultimately, it is the Ecuadorian Constitutional Court that will have to make the final decision as to whether or not Baxter is telling the truth.
Information and Sources
Contact Information for Baxter management for those who would like to call or write to protest this decision:
1) Bob Parkinson, CEO, Baxter Laboratories, Deerfield Illinois
e-mail Bob_Parkinson@Baxter.com Tel: 847-948-2000
2) Carlos Alonso, Director, Baxter Latin America, Miami, Florida, e-mail Carlos_Alonso@baxter.com
Miami, Florida; Tel 954-476-3700
3) Mario Rojas, Director, Baxter, Ecuador, e-maill Mario_Rojas@baxter.com Tel: +593-2254-0357
4) Angela Zuluagua: Baxter, Media Department, Tel: +57317-4034072
El Telegrafo Article: http://www.telegrafo.com.ec/temadeldia/noticia/archive/temadeldia/2010/01/02/Personas-con-VIH-callan-el-discrimen-laboral.aspx
Ecuadorian Constituion: http://www.jubileo2000.ec/documentos/constitucion_2008/Tit_I_Elementos_constitutivos.pdf
Kimirina: http://www.kimirina.org/inicio Lawyer for Carlos: Jose Luis Nieto: email@example.com Tel: +593-98230470
CEPVVS press release: http://www.kimirina.org/component/content/article/20-noticias-recientes/44-denunciacoalicion
Santiago Jaramillo, CEPVVS: firstname.lastname@example.org Tel: +593-97108188
*The author, Richard Stern is an independent consultant and Director of the Agua Buena Human Rights Association in San Jose, Costa Rica. He can be reached at +506-2280-3548 or by e-mail at email@example.com or firstname.lastname@example.org