Man With HIV Wins Discrimination Lawsuit Against Former Employer
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2017-06-21 11:37:27

An intermediate court in southern China on Monday ruled against a company that had suspended an employee for being HIV-positive.

The employee, a 28-year-old man who goes by the nickname Ming to keep his HIV status private, had earlier lost the case twice — first during labor arbitration and then in a lower court. The name of Ming’s former employer, a quasi-governmental food inspection company, has been withheld in official reports on the case.

The Guangzhou Intermediate People’s Court announced its verdict during the second hearing of Ming’s appeal on Monday. It ruled that it was illegal for the company to suspend Ming for being HIV-positive, and that the employer’s refusal to renew his labor contract also violated the law.

“It was very hard to win this case,” Qiu Hengyu, Ming’s lawyer, told Sixth Tone on Wednesday. Qiu said his client’s victory might be the first time that the rights of people with HIV or AIDS have been acknowledged and defended by the legal system. In other similar cases, plaintiffs are awarded compensation without the judge ruling on the case’s legality.

“I was prepared to lose the case,” Ming told Sixth Tone. But when the judge announced the verdict, “I felt so surprised,” he said. “My long preparation and hard work finally paid off.”

Ming’s case can be traced back to December 2015. After three years at his company, he had a chance for promotion but had to pass a physical examination, which he failed because he was HIV-positive. He was suspended, and when his contract ended eight months later, the company did not retain him.

Ming said he had not been aware he had HIV. “My mind was in turmoil,” he said. “I searched through a lot of information online at the time, studying AIDS. I realized that the situation might not be as bad as I had imagined.”

But attempts to negotiate with the company failed. “I told them that I took medicine as scheduled and received treatments regularly. I hoped that they would believe in my ability to do my job and cancel their decision on my indefinite suspension,” Ming said. “But from beginning to end, they just insisted that I should leave and take a rest.”

Ming filed for labor arbitration in April 2016, but lost. He sued in December, but a district court ruled in favor of the company, which defended its decision with a 1991 legal document stating that people with HIV should be isolated. A 2004 revision to the document, however, had removed this provision.

During the numerous court sessions, judges asked Ming whether he would like to accept mediation and compensation, but he refused. “It sounded like my legal rights could be infringed at will as long as I was compensated with some money,” Ming said. “I would never accept mediation. I just want the court to give me a fair ruling and bring me justice.”

Peng Yanhui runs Guangzhou-based nongovernmental organization LGBT Rights Advocacy and offered legal assistance to Ming, who identifies as gay. Peng told Sixth Tone that many people with HIV facing the same discrimination have come to him for help. “But only a few of them file lawsuits — they dare not defend their rights, for fear that it will harm their privacy,” he said. “Also, previous cases have never regarded this kind of discrimination as illegal.”

Both Peng and Qiu, the lawyer, spoke highly of Ming’s courage. “This case is a positive example for the whole country,” Qiu said. “It tells all employees and employers that asking HIV-positive people to leave would not be supported by the courts.”

Qiu said that he and Ming have filed a lawsuit against a local government department to review the legitimacy of its physical examination standards for government employees, as Chinese law says HIV testing should be voluntary. A hearing date has not yet been set.

Ming now works at another company, but he said he has not told them he is HIV-positive. “I’d be afraid that if I told them, I might have to find another job,” he said. “The public’s misunderstanding and stigmatization of HIV/AIDS, as well as the resulting discrimination, is far more horrible than the disease itself.”

Editor: Kevin Schoenmakers.

(Header image: Advocates for ending discrimination against people with HIV hold handmade signs on the subway in Chengdu, Sichuan province, Nov. 30, 2011. Chengdu Business Daily/VCG)