China: Landmark Ruling on HIV Employment Discrimination

by Morgan Lewis
Contact

Morgan Lewis

A court in China finds that it is unlawful for an employer to banish an employee from the workplace due to his or her status as an infectious disease carrier.

On June 19, the Guangzhou Intermediate People’s Court issued a landmark ruling in holding that it is illegal for an employer to require an employee to leave his post in the office to stay at home for “rest” based on the individual’s HIV-positive status.[1] This is the first ruling in the People’s Republic of China (PRC) where the court has deemed that an employer’s banishment of an employee from the workplace because of his or her status as an infectious disease carrier is unlawful.

Infectious disease carriers in the PRC have experienced considerable recruitment and retention discrimination based on this medical status. The main targets of this discrimination have been carriers of Hepatitis B, who are estimated by some sources to compose approximately 10% of the country’s population. To combat this form of discrimination, among other national and local regulations, government agencies such as the Ministry of Human Resources and Social Security, Ministry of Education, and Ministry of Health in 2010 prohibited the inquiry and testing by employers into whether a candidate is a Hepatitis B carrier.[2] Notably, the local and national regulations generally do not expressly extend to HIV-positive status, but that status is covered under the umbrella category of “infectious disease carriers.” Accordingly, the recent case carries significance because the plaintiff is HIV-positive, and therefore the court’s ruling can be seen as endorsing a broader and more open extension of the protection of law against employment discrimination to include HIV-positive individuals.

Current PRC Anti-discrimination Laws

China’s anti-discrimination laws are not unified in one code. Rather, they are scattered throughout the Labor Law,[3] Employment Promotion Law,[4] and—with respect to infectious diseases in particular—the Law on Prevention and Treatment of Infectious Diseases[5] and Law on the Protection of Persons with Disabilities.[6] To supplement the national laws, a number of provinces and municipalities have implemented their own regulations providing protections against discrimination based on infectious disease carrier status. Despite these protections, many people in China who test positive for HIV are barred from advancing in the workplace or face discrimination in recruitment—in both the public and private sectors.

Case Overview

The plaintiff, who goes by the pseudonym Ah Ming, joined Guangzhou’s Food Inspection Institution (FII) in September 2012. He signed four one-year fixed-term employment contracts with FII, and the last contract expired in August 2016. In 2015, Ming was eligible to take an exam and apply for a public institution position within the company. As a part of the application process, Ming underwent a physical examination that revealed his HIV-positive status.

Upon learning of his HIV-positive status, FII asked Ming to remain on an indefinite paid leave (exclusive of overtime pay). In April 2016, Ming petitioned for arbitration. He argued that despite receiving full pay during this period of mandatory leave, it was not lawful for FII to demand that he stay home and not report to the office for work. The arbitration commission rejected his claim for the right to return to work, and he remained on paid leave.

After this ruling, Ming filed a case in the People’s Court asking for an open-ended employment contract (given that his last employment contract had expired during the course of the trial) and the right to return to work. In a ruling dated June 19, 2016, the People’s Court rejected his claims.

Ming subsequently appealed the decision to the Guangzhou Intermediate People’s Court. On June 19, 2017—exactly one year after the lower court issued its judgment—the appellate court overruled the lower court’s decision and awarded Ming the right to return to work.

Legal Reasoning     

The Guangzhou Intermediate People’s Court provided three reasons for overruling the lower court’s decision:

  1. FII did not provide sufficient evidence showing that Ming consented to going on paid leave.
  2. By requiring Ming to take paid leave, FII unilaterally changed the terms of Ming’s employment contract, constituting a violation of PRC law.
  3. Under PRC law, there is no basis to prohibit HIV-positive employees from working.

Despite the fact that Ming had received a salary throughout the period of his employer-mandated leave, the appellate court maintained that continuous payment is not sufficient to prove that the original terms of the employment contract were upheld. The court held that in changing the location of Ming’s work by requiring him to stay home, the company altered the terms of the employment contract without the employee’s consent, thus violating the Employment Contract Law.[7] Moreover (and importantly), Ming’s claims never focused on financial compensation—rather, they focused on the right to return to the workplace.

Implications

There have been other legal rulings regarding discrimination based on HIV status—a socially and politically sensitive topic in the PRC—but most of those cases have resulted in financial compensation for the plaintiff. In 2016, a teacher in Guizhou province was awarded ¥9,800 ($1,440) when his school, upon learning that he was HIV positive, abruptly terminated his contract.[8] In addition, in 2014, an HIV-positive teacher in Jiangxi province was awarded compensation in the amount of ¥45,000 ($6,620) for being denied a job due to his HIV status.[9]

This recent ruling marks the first time that a high-level court has ruled against a state-run institution for employment discrimination based on HIV status. While many provincial-level regulations and social stigmas still may hinder the employment rights of HIV-positive citizens, the case creates important precedent for future anti-discrimination cases. However, it should be noted that while this is a landmark case in promoting anti-discrimination, the ruling in Ming’s favor largely was due to procedural errors in his employment contract. In that sense, it is as much a lesson in employment contract law as it is in anti-discrimination law.


[1]Guangdong's First HIV Employment Discrimination Case in the Court of Final Appeal” (Chinese language only and official report from the People’s Court) (June 21, 2017) (last visited June 26, 2017); "HIV carrier in Guangdong sues State-run employer for job discrimination," People's Daily Online (June 12, 2017) (last visited June 27, 2017).

[2] Notice on Further Regulating School Admission and Employment Physical Examination Items to Maintain Employment Rights of Hepatitis B Carriers, issued by Ministry of Human Resources and Social Security, Ministry of Education, Ministry of Health, Feb. 10, 2010.

[3] Labor Law of the People's Republic of China, effective Jan. 1, 1995, arts. 12-14.

[4] Employment Promotion Law of the People’s Republic of China, effective Jan. 1, 2008, art. 3.

[5] Law on Prevention and Treatment of Infectious Diseases of the People's Republic of China, effective Dec. 1, 2004, art. 16.

[6] Law on the Protection of Persons with Disabilities of the People's Republic of China, effective July 1, 2008, art. 30.

[7] Employment Contract Law of the People's Republic of China, effective Jan. 1, 2008 and as amended, art. 15.

[8] "Chinese Teacher with HIV Wins Compensation in Landmark Labour Law Case," South China Morning Post, May 12, 2016.

[9] “Jiangxi's first HIV employment discrimination plaintiff successfully awarded 45,000 Yuan” (Chinese language only), China National Radio, Jan. 29, 2013.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis
Contact
more
less

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.