Responding to Hepatitis B discrimination in the workplace

More than 120 million Chinese, about ten per cent of the population, carry the Hepatitis B virus. The vast majority of carriers were infected at birth, while many were infected by re-used needles during mass vaccination programmes for tuberculosis, tetanus and encephalitis from the 1970s to the 1990s. Many carriers suffered from discrimination at school and college, being ostracized and forced to use separate facilities, and now after graduating they are faced with institutionalized and widely accepted discrimination in the work place.

Many medical and pharmaceutical companies in China are cashing in on Hepatitis B by offering "cures" and blood test services. In their advertising campaigns, these companies exaggerate the risks of infection and the dangers posed by the disease, blurring the lines between those carrying and those actively infected by the disease, and this together with sensationalist press coverage has helped create an almost hysterical reaction among employers. Employers erroneously fear that hiring a Hepatitis B carrier will lead to the rapid spread of the disease throughout the workforce, whereas in reality it can only be spread through the direct exchange of bodily fluids. It is common practice for employers to demand a blood test before hiring new employees and to dismiss existing employees after they have tested positive for the virus. A survey by the China Hepatitis Prevention Fund in June 2007 revealed that 77 per cent of multinationals in China will reject job applicants carrying the Hepatitis B virus. The survey was based on interviews with the local representatives of 98 multinationals based in 11 major cities across China.

The Ministry of Labour and Social Security issued a notice in June warning employers they should not discriminate against job-seekers on the grounds of Hepatitis, unless the nature of the job might help spread the virus, a sufficiently vague ruling that allows employers a lot of leeway. The draft Employment Law specifically outlaws discrimination on the grounds of physical disability but until the law is finally approved by the National People's Congress, it will be difficult to assess how beneficial the new legislation will be to Hepatitis B carriers.

Fear and loathing in the workplace

Currently, employees are often forced to accept the decision of their employer, either because they do not want their health status made public, they feel they have no legal recourse, or because the employer had coerced them into signing a voluntary redundancy agreement. At least two people are known to have committed suicide after being rejected by employers because of their Hepatitis B status and others have violently attacked employers who have rejected them. One man in Zhongshan, Guangdong Province hanged himself after being rejected by Chinese appliance maker Galanz. The man allegedly told friends he was too ashamed to return home after not earning any money.

Since 2003, however, increasing numbers of workers are using the law in response to discrimination in the workplace, suing employers for discrimination during the job application process and wrongful dismissal. The first case against Hepatitis discrimination was filed in November 2003, when a 25 year old college graduate, Zhang Xianzhu filed an administrative suit alleging his constitutional rights of equality and political participation had been violated when his application for a civil service post was rejected after testing positive for Hepatitis B, this despite scoring the highest mark in the municipal civil service exams.

The court in Wuhu, Anhui Province, eventually ruled that the municipal civil service did not follow provincial guidelines correctly in denying Zhang a job. Following that case, and the far more sensational case of a university graduate who murdered two government officials after he was refused a post on the grounds of his Hepatitis B status, China lifted a ban on Hepatitis B carriers becoming civil servants but carriers are still routinely barred from jobs in commercial and industrial sectors where the perceived risk of infection is high, such as the food industry, beauty parlors and hotels.

Getting organized

However, thanks to the active engagement of anti-discrimination lawyers in China, the work of the Beijing-based Hepatitis B support group Yirenping, and the establishment of an extensive online support network of carriers and activists, more cases are now being brought against employers for Hepatitis B discrimination in a wide range of businesses. China Labour Bulletin, through our Labour Rights Litigation program is currently involved in nearly 40 Hepatitis B discrimination cases, arranging legal representation by mainland lawyers for the plaintiffs. Most of our cases involve college graduates who applied for management or research jobs at foreign invested electronics firms and whose application was rejected after their blood tests showed them to be infected with Hepatitis B. Five of early cases are outlined below.

CLB's best known case involves five plaintiffs who are suing Taiwanese computer giant Foxconn for a total of one million yuan after two Foxconn subsidiaries rescinded job offers because of the plaintiffs' Hepatitis B status. Shenzhen's Baoan District People's Court agreed to hear the case in March 2007. A Foxconn spokesman sought to defend its policy of Hepatitis B discrimination on health grounds, claiming that employees lived and worked together in confined spaces, but said the company would abide by the court's eventual decision.

Global Citizenship?

Secondly, in Jiangsu Province, on 31 January 2007, three plaintiffs filed a petition with the Wujiang Municipal Labour Bureau asking for arbitration and a total of 300,000 yuan in compensation from the Taiwanese owned electronics company Cal-Comp. The plaintiffs were among 22 employees at the Cal-Comp in factory Suzhou sacked late 2006 after they tested positive for Hepatitis B. Cal-Comp is a supplier for Hewlett Packard, a multinational that claims to be a leader in "global citizenship." The global citizenship page on HP website states that HP is "proud of our efforts as global stewards, helping to reduce environmental impacts, raise standards in HP's global supply chain and investing in communities to help people learn, work and thrive. We conduct our business with uncompromising integrity and.. believe that with global reach comes global responsibility."  The case concluded in early 2008 with a confidential agreement signed by the plaintiffs and the company.

In a third case in March 2007, a 24 year old graduate from Henan filed an anti-discrimination suit against a Dongguan based subsidiary of telecoms giant Nokia after he was refused employment on the grounds of his Hepatitis B status.

In reporting the case, the Guangzhou-based Yangcheng Evening News quoted a Nokia China spokesperson as saying Nokia would never discriminate against Hepatitis B carries and had employees diagnosed with Hepatitis B at the factory. "We are investigating the Dongguan case and will rectify it if some of our staff made mistakes," he said.

In another Dongguan-based case handled by CLB, in January 2006, a man from Hubei sued Hong Kong technology company VTech Holdings after he claimed he was rejected for a vacancy as a result of being a Hepatitis B carrier. On 3 January 2008, the Dongguan court awarded the plaintiff 24,000 yuan in compensation.

In our fifth case so far, on 27 February 2007, a plaintiff sued the Shanghai based subsidiary of Taiwanese computer manufacturer Asus for discrimination. The plaintiff had been offered a job in December 2005 at Changshuo Technology whilst he was still at university but the offer was rescinded after the company received a health report revealing the plaintiff's Hepatitis B status. The plaintiff was quoted by the China Daily newspaper as saying: "On December 28, the company issued me a notice for breach of contract, which stated clearly that the breach was based on the fact that I am a hepatitis-B carrier."

In his suit filed with the Nanhui District Court in Shanghai, the plaintiff is demanding 12,800 yuan compensation for his economic loses and a further 50,000 yuan for the "mental anguish" caused by the company's rejection. He told reporters outside the court, "This was not the first time I was refused a job for that reason, and I believe I might face more rejections in the future. I hope this case will remind the government about the problem and warn employers of the possible risks (of rejecting someone with hepatitis-B)." He added that many of his friends and classmates who were also carriers faced similar experiences on a daily basis.