Last month, a young teacher in Anhui Province lost an AIDS discrimination case stemming from being rejected for a teaching position after testing HIV-positive. Though this case drew wide condemnation from human rights groups, as lawyer, I have been taking more of a wait-and-see attitude.
Stan Abrams of China Hearsay, in a post entitled, “About that HIV Discrimination Case, Let’s Be Patient,” beautifully explains why patience is in order on this case:
A lot of folks, including me, are very disappointed by this ruling. However, let’s keep a couple things in mind.
First, the case involved a conflict between two different laws. One is a set of health standards for public servants. The other is a national law that addresses discrimination of individuals with certain diseases.
So we had a disagreement between two different laws. The judge in this action went with the public service standard instead of the discrimination rules.
This is going to be bumped up to the next level. The court of first instance was a district court (the lowest level in China’s judicial system), so getting some clarification from higher up is probably just as well anyway.
Second, remember that just getting this case heard was a huge step. This was the point I made earlier this year:
This is positive news in most respects. The standard operating procedure for Chinese courts up until now is to dismiss these discrimination cases, including HIV. We’ve seen some very positive trends with sexual harassment over the past few years, and now perhaps HIV cases will begin to be accepted by judges. The Central Government has, via legal reform in 2006, made their intentions clear that such cases should be taken seriously.
By hearing the case, the issue was indeed taken seriously. Now we’ll see what we get out of an appellate hearing. The law in question only dates back to 2006, and this has been touted as the first case of its kind. Even if the appellate court affirms the district court’s ruling, progress is being made here.
I am going to add a third reason for patience: Anhui Province is not Shanghai or Beijing, or even Qingdao or Tianjin.
China Real Time Report, in a post out today entitled, “Report Bolsters China Action on HIV/AIDS,” noting a just released report from the “Chinese Center for Disease Control and Prevention on the need for China to tackle HIV/AIDS-related job discrimination.” The report calls for ending mandatory HIV employment related testing:
According to a summary from Xinhua (the full report has yet to be released), the CCDC collected multiple examples of institutionalized discrimination against people living with HIV/AIDS in places ranging from government offices to bars and beauty parlor, ultimately concluding that mandatory HIV testing of workers in the country should stop.
The Chinese government has taken steps to improve treatment and prevention of HIV/AIDS patients in recent years, including offering free antiretroviral drugs for those who are HIV positive, but the stigma of HIV/AIDS remains a deeply entrenched problem.
The post goes on to note how the teacher’s case is on appeal and how just his bringing it constitutes progress:
If the appeal court rules against Xiao Wu, HIV-positive individuals in China run the risk of seeing more employment discrimination in the future, Mr. Li said, but the case also “proves that people are conscious of their rights and know how to use legal weapons to protect them.”
“A few years ago they (HIV-positive individuals) might think they didn’t have a right to a job,” Mr. Li said. “Now they think they have a right. This is a change in China.
I predict we will see China’s courts/government making clear fairly soon that AIDS discrimination in employment is prohibited.
The earlier (way earlier) posts in this series are as follows:
