Shanghai HBV discrimination case reaches “satisfactory” conclusion

A long running and highly publicized Hepatitis B discrimination case concluded on 2 April 2008 after a court ordered mediation awarded the plaintiff “satisfactory” compensation for loss of potential earnings and emotional damages after his offer of employment was withdrawn because of his HBV status. 

CLB cannot reveal the exact amount of compensation because the Shanghai Intermediate Court, in its civil ruling No.4302, placed a gagging order on the plaintiff, Chen Long (pseudonym), and his legal representative.

In his initial suit, on 27 February 2007, Chen Long sued Changshuo Technology, the Shanghai-based subsidiary of Taiwanese computer manufacturer Asus for 12,800 yuan in economic losses, and 50,000 yuan for the “mental anguish” caused by the company’s withdrawal of his job offer.

On 24 October 2007, Nanhui District Court awarded Chen Long just 5,000 yuan in compensation. Chen rejected the award and lodged an appeal with the Shanghai Intermediate Court, which heard the case on 12 December. However, it was another four months before a mediated settlement could be reached.

Although the details of the mediated settlement remain confidential, the publicity generated by the case over the last 14 months has assured that the Shanghai government, employers and public are much more aware of the problem of HBV employment discrimination.

On the same day as the verdict, the local media reported that the Shanghai Public Health Bureau had stipulated that HBV testing would no longer be routine for prospective employees and that the city’s medical examination forms were being modified accordingly. The bureau added that prospective employees can only be tested for HBV if the examinee requests it or if the employer can prove that the job advertised is legally off-limits to people with HBV.

Earlier on 18 May 2007, the Ministry for Labour and Social Security and the Ministry for Public Health issued a joint circular, Regarding Views on the Protection of Hepatitis B carriers’ Right to Employment, clearly stipulating that apart from industries where national laws, administrative regulations and Ministry of Health regulations have identified a higher risk of transmission of the Hepatitis B virus, employers cannot refuse to hire, or to dismiss employees on the basis of their being tested positive for the Hepatitis B virus”.  

On 13 July 2007, the deputy chief of the training and employment office within the Ministry of Labour, Liu Danhua, stated that if a company refuses to hire, or dismisses a worker due to their HBV status, it will be considered an act of employment discrimination, and the victim will be entitled to assert their rights against the company.

The Employment Promotion Law, which went into effect on 1 January 2008, clearly stipulates that employers “cannot reject applicants on the basis of them carrying an infectious disease”.

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