CERD rules that HIV tests for foreign teachers in Korea are discriminatory

In late 2009 I posted here about a foreign teacher who was refusing to take a second HIV test in order to renew her teaching contract at an elementary school in Ulsan. As a result she lost her job and left Korea, and with Benjamin Wagner representing her, she filed complaints with the National Human Rights Commission of Korea (which rejected it) and Korean Commercial Arbitration Board (which ruled against her). Then in July 2012 it was announced that the United Nations Committee on the Elimination of Racial Discrimination had agreed to hear the case, though not a single Korean media outlet chose to report on this despite receiving a press release from a PR firm. Given 90 days to reply, the ROK instead took 9 months to reply. In its reply, the ROK stated that "since 2010, its guidelines on the employment of foreign teachers do not specify that [foreign teachers] have to submit results of HIV/AIDS and drugs tests to have their contracts renewed," an assertion which I knew personally was not true (and which the Korea Herald looked at here). In 2010 the ROK had in fact officially removed all HIV tests for those registering for residency except for the E-2 visa tests.

In a journal article coauthored by Benjamin Wagner and myself, we asked in the title whether HIV tests were a proxy for racial discrimination, and this week the CERD answered that question: Yes.

As Benjamin Wagner wrote this week,

On May 18, 2015, the United Nations Committee on the Elimination of Racial Discrimination decided the case of a former native English teacher from New Zealand. Ms. “L.G” lost her job and work visa in 2009 after she refused to take a second round of in-country drug and HIV tests demanded by the Education Ministry just months after submitting to identical tests for the purposes of immigration. Korean citizen teachers and even ethnic Korean noncitizen teachers are able to avoid such tests. Ms. L.G. correctly regarded the government’s demands as based on unfounded stereotypes of foreigners as drug users and sexual deviants. While immigration has required a single negative test result for HIV and drugs for prospective foreign teachers since 2007, the Education Ministry began demanding their own tests, meaning that many teachers are tested multiple times during their time in the country.

In 2012, the Committee accepted L.G’s petition after she had exhausted all possible solutions in Korea (a prerequisite for bringing complaints under the CERD) including filing unsuccessful complaints with the National Human Rights Commission of Korea and Korean Commercial Arbitration Board.

An official summary of the decision is here, while the full decision can be downloaded as a .doc here. As can be seen here, of four cases considered this session by CERD, only this case was considered to be in violation of the Convention for Eradication of Racial Discrmination; the summary points out which articles of the convention the ROK was found to be violating in this case.

The summary makes public the justification the UMOE offered for the tests - something that many people taking these tests have known for years, but never admitted by the government:

[D]uring arbitration proceedings, L.G.’s employers, the Ulsan Metropolitan Office of Education (UMOE), said that HIV/AIDS tests were viewed as a means to check the values and morality of foreign English teachers.

One of the Committee's recommendations isn't very surprising:

The Committee recommends that the State party grant the petitioner adequate compensation for the moral and material damages caused by the above-mentioned violations of the Convention, including compensation for the lost wages during the one year she was prevented from working.

It continues with much more sweeping recommendations, however:

It also recommends that the State Party takes the appropriate means to review regulations and policies enacted at the State or local level related to employment of foreigners and abolish, both in law and practice, any piece of legislation, regulation, policy or measure which has the effect of creating or perpetuating racial discrimination. The Committee recommends the State party to counter any manifestations of xenophobia, through stereotyping or stigmatizing, of foreigners by public officials, the media and the public at large, including, as appropriate, public campaigns, official statements and codes of conduct for politicians and the media. The State party is also requested to give wide publicity to the Committee’s Opinion, including among prosecutors and judicial bodies, and to translate it into the official language of the State party.

This doesn't just refer to English teachers, but to regulations for all foreign workers. And as I've covered here, the references to the conduct of the media and politicians is very pertinent, considering the 'Citizens Group for Upright English Education' (also known as Anti English Spectrum) worked closely with the media and had access to politicians when pushing for the creation of the HIV testing policy (among others) in the first place.

As well, national assembly representatives have said a number of negative things about foreign teachers over the year. In June of 2009 Rep Choi Young-hee submitted 3 bills regarding native English teachers to the national assembly which called for drug tests for foreign teachers, with the bills stating that "the crime rate among native-speaking English teachers is getting higher" without offering any proof of such an increase. She also stated that immigration had lost 22,000 E-2 visa holders, but as it turns out, she used the wrong statistics. A few months later, Rep. Lee Gun-hyeon stated that foreign teacher crime was 'serious,' but released statistics showing it to be 5 times less than the Korean crime rate. Rep. Park Min-sik would chime in a month later on the "flood of unqualified native speaking teachers", while National Assembly Rep Lee Ju-yeong stated that "Of foreigners, native speaking teachers are especially potential child molesters" who may have many 'undisclosed crimes' and who may fake their backgrounds. None of this quite compares to the racially charged statements made by Kim Han-gil, who was recently the leader of the opposition party, back in 1997 about the "white good-for-nothings" flocking to Korea to teach English, and despairing that the "low culture of English speaking countries is penetrating into living rooms." He also proved to be ten years ahead of the curve by complaining that foreign teachers "they don't even have to take drug or AIDS tests."

As for the media, this decision is being widely reported. For example:

Source - UN
Republic of Korea’s foreigners-only HIV tests violated New Zealand teacher’s rights — UN experts (Office of the High Commissioner for Human Rights, Geneva; 20 May 2015)
Republic of Korea’s foreigners-only HIV test violated New Zealand teacher’s rights — UN experts (UN News Center; 20 May 2015)
Korea’s foreigner-only HIV tests violate NZ teacher’s rights (Scoop, New Zealand; 21 May 2015)
HIV tests for E-2 visas discrimination, U.N. Finds (Korea Herald, 20 May 2015)
UN Experts Urge S Korea To Compensate New Zealander Who Lost Job Over HIV Test (RTT News; 20 May 2015)
Korea’s foreigners-only HIV test violated New Zealand teacher’s rights: UN experts (NewKerala.com, Kerala, India; 21 May 2015)
Korea’s foreigners-only HIV test violated New Zealand teacher’s rights: UN experts (IndiaBlooms.com, India; 21 May 2015)

I really like the headlines of the first two articles here, and am glad the CERD chose to make UMOE's justification for the tests public:

Source - AFP
South Korea criticised for demanding expat teacher take AIDS test to check ‘values and morality’ (Radio Australia, ABC; 20 May 2015)
South Korea criticised for demanding expat teacher take AIDS test to check ‘values and morality’ (ABC News, Australia; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Yahoo! News, Australia; 20 May 2015)
UN experts rap S Korea over AIDS test for expat teachers (Economic Times, India; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Business Standard; 20 May 2015)
UN experts rap South Korea over AIDS test for expat teachers (Zee News, India; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (NGR News, Nigeria; 20 May 2015)
SK demanded Aids test for expat teacher (IOL News, South Africa; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Global Post; 20 May 2015)
UN experts rap S.Korea over AIDS test for expat teachers (Bangkok Post; 20 May 2015)
UN experts rap S. Korea over AIDS test for expat teachers (The Straits Times, Asia; 20 May 2015)
UN experts rap S.Korea over AIDS test for teachers (Press Trust of India; 20 May 2015)

Source - NZN
UN says Kiwi kicked out of South Korea for refusing AIDS test should be compensated (TVNZ; 21 May 2015)
UN backs Kiwi teacher kicked out of Korea (NZCity, New Zealand; 20 May 2015)
Kiwi teacher asked to take AIDS test (3 News, New Zealand; 20 May 2015)

As well, unlike how the Korean media was able to ignore the case when it was accepted, it is being reported here in a limited manner (ten articles), with the Korea Herald first breaking the story, followed by Yonhap:

UN CERD "Korea should abolish HIV tests for foreign instructors" (Yonhap; 20 May 2015)
UN CERD: "Korea, testing only foreign instructors for HIV is a violation of human rights" (KBS; 20 May 2015)
U.N. urges S. Korea to abolish HIV testing of foreign teachers (Yonhap English; 20 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test" (Money Today; 20 May 2015)
UN: "Korea’s testing of foreign instructors for HIV is a violation of human rights" (; 21 May 2015)
UN CERD "Korea, abolish HIV testing of foreign teachers" (SBS; 21 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test" (News1; 20 May 2015)
UN: "Foreign instructor HIV tests are character defamation" (MBN; 21 May 2015)
UN CERD: "Korea, compensate foreigner who refused HIV test for human rights violations" (Le Monde Diplomatic; 21 May 2015)
UN racism ruling piques government (Korea Times; 22 May 2015)

Since Yonhap English news articles tend to be truncated after a few days, here's their English translation of the story:

U.N. urges S. Korea to abolish HIV testing of foreign teachers (Yonhap; 20 May 2015)

GENEVA, May 20 (Yonhap) -- A United Nations committee on Wednesday reprimanded South Korea's mandatory HIV testing of native English teachers as discrimination against foreigners, urging the country to abolish the policy.

Foreigners who come to South Korea to teach English are required to have a criminal background check and tests for illegal drugs and the HIV virus, while Korean nationals in equivalent jobs are not required to go through such scrutiny.

The U.N. Committee on the Elimination of Racial Discrimination (CERD) has deliberated the policy after Lisa Griffin, a former English teacher from New Zealand, filed a complaint when her contract with a local education office was not renewed in 2009 over HIV testing.

Griffin, who had received a negative result on the first test, refused to undergo a second, arguing it could stigmatize foreigners as people who have a higher risk of AIDS and could spread a negative sentiment against them.

The Geneva-based committee said the foreigner-only HIV test was "discriminatory and an affront to her dignity," urging the South Korean government to compensate for "moral and material damages" she suffered.

The mandatory testing "does not appear to be justified on public health grounds or any other ground, and is a breach of the right to work without distinction to race, color, national or ethnic origin," the committee said in a release.

The U.N. committee urged Korean authorities to take steps to revise the policies that stereotype or stigmatize foreigners, giving them 90 days to report back on the process.

As someone who contributed research to the CERD petition, I'm really happy with the results. What happens next is up to the Korean government.

Update:

More about the Korea Times' report can be read here.