In April 2016, a court in Guizhou province was asked to consider whether an employee had been discriminated against on the grounds of AIDS or HIV positive status. The employee’s employment contract was not renewed as he had allegedly failed to pass his employer’s medical check. The employee later found out that the real reason for the non-renewal was due to his HIV positive status. As a result, he filed a lawsuit requesting reinstatement of employment and compensation for emotional distress.
The trial court initially refused to take the case filed by the employee, but the appellate court ruled that this decision was incorrect and thus ordered the trial court to hear the case. The trial court ruled that the employer must pay severance to the employee for the non-renewal of the employment contract, but dismissed the employee’s request for renewal and reinstatement to the job, and also did not award damages for emotional distress sought by the employee.
Despite the headlines in the media, the court in this case did not specifically find discrimination on the grounds of AIDS or HIV-positive status, nor did it order a payment of damages on the basis of discrimination. However, some scholars have taken the view that the court must have considered the AIDS discrimination element in its ruling, and have thus affirmed this as the first AIDS discrimination case won by an employee.
Key Take-Away Points:
It has been difficult for employees to win employment discrimination claims as China does not have the same well-developed anti-discrimination laws as in some western countries, and in practice it is hard for employees to gather and provide sufficient evidence showing the existence of discrimination. However, public awareness is increasing in relation to employment discrimination issues, especially discrimination against the most vulnerable groups of people such as those who are HIV positive or carry the Hepatitis B virus, and therefore courts are more open to hearing these types of cases and finding in favour of such claimants, as illustrated by this case.