By Yu Fangqiang

On July 27, 2010, a person living with HIV/AIDS in Anhui Province successfully filed China’s first case alleging employment discrimination on the basis of HIV status. Soon afterwards, a second case was filed in Sichuan Province. A year later, both cases were lost, and both plaintiffs filed appeals. Currently, the third plaintiff in an HIV-related employment discrimination case is preparing to file suit. In this article, lawyer Yu Fangqiang tells the personal story behind the historically important Anhui case.

 

A Letter Asking For Help

In July 2010, the Yirenping Center – a nonprofit focusing on health and legal rights, where I worked until founding my own NGO — received an anonymous letter. The letter began, “I don’t know what to do. I don’t know whom to turn to for help. I am helpless and considering suicide.”

During the five years I had worked for this NGO, I’d seen many cases of people with HIV who experienced discrimination. In most cases, though, the case stemmed from accidental leakage of private medical information within the company,
which sent the employee with HIV fleeing. Legally speaking, this was considered their personal choice, and not a clear-cut case of discrimination by the employer.

In addition, as HIV testing is expensive and time-consuming, it isn’t as common as a test for Hepatitis B during the employee hiring process. Therefore, this case [in which an employer required HIV testing of a new employee and then refused to hire him] was the first case in which there was a clear violation of employment rights. After reading the letter, I immediately felt that we had a case.

At the same time, I was also anxious. The litigant, Xiao Wu (or “Little Wu”, a pseudonym), had many concerns about his private information accidentally leaking into the public and destroying his reputation. After all, this was the first case of its kind, and it would take a great deal of courage. Moreover, Xiao Wu was mistakenly under the impression that the “Civil Servant Employment Physical Standards” allowed employment of people with HIV. If I immediately broke the news to him that it did not, there was a chance he would change his mind and back down from the lawsuit.

It seems coincidental now that after having communicated with Xiao Wu a few times, I became ill and was hospitalized,
and for a time lost the use of my eyes. During this time, I had a considerable amount of time to talk with Xiao Wu. During the time I was hospitalized, I spoke with him for an hour every night at 10 pm. I explained to him how we would
maintain his personal privacy while collecting evidence. I also told him about how in the past, the influential Hepatitis B cases we had represented at Yirenping were able to change social policies as well as the health standards
for Civil Service employment. I told him that his case not only involved himself, but was of great importance to an additional 740,000 (perhaps more) people living with HIV in China, and the legal system of 1.3 billon Chinese
citizens.

Now that I think of it, if I hadn’t been hospitalized, I probably wouldn’t have taken the time to talk so much with
Xiao Wu. While I was on medical leave from work, my daily telephone calls with Xiao Wu were among my few work tasks. On one of these calls, I told Xiao Wu that the Civil Service health regulations do not permit them to hire persons living
with HIV/AIDS, but I also told him that this restriction was wrong and that we needed to change it. Although a lawsuit might fail, it is a citizen’s responsibility to fight for his dignity.

Through our discussions, the importance of Xiao Wu’s lawsuit became very clear to us both, and we became determined not to give up. Even after the case verdict was handed down, there was no scene in which the plaintiff broke down in front of the cameras. He was able to calmly face the media and express his feelings and opinions. His strength and rationality were inspiring to me.

Media Strategy

After preparing evidence and finding a good lawyer, we couldn’t help but worry about one major issue：Would the court
accept the case? Based on my limited work experience, the chances of getting a case like this one heard by the court were extremely low. If the case wasn’t heard, even if it was considered influential by legal experts, it would have
little effect on actual policies. Two cases with which we were involved — the “Langfang Door Investigation Case” and the “Xuzhou Marriage after Pregnancy Case” — were rated two of the year’s “Top Ten Constitutional Cases”. They caused more academic discussion than debate in society as a whole, and without the needed social mobilization, all this academic debate didn’t have much effect on policy.

So this time, we contacted the media early on — and not just any media, but the most influential legal journal in China, Legal Daily. This particular newspaper was published by the national Ministry of Justice. The court, procuratorate, Public Security Bureau, and other central government offices all subscribe to it.

Two days later, the judge in our case went to work and saw that the new issue of Legal Daily had a headline reading: Student with HIV Rejected as Teacher Based on [HIV] Test, Sues Bureau of Education for Equal Employment Rights. The judge immediately called our attorney, informed him that the case would be heard, and said that legal fees should be paid that Monday. The indictment was submitted the following Thursday.

When the international media picked up the story, many depicted it as a sign of progress in China’s legal system. After
all, it was an HIV-related case, and a Chinese court had allowed it to go to trial!

What they didn’t know was that when the attorney first handed in the case materials, the courts refused to hear the case, and even after persisting, the lawyer received no reply from court officials. I believe that without the Legal Daily story and
later media attention, the case might never have gone to trial. Of course, in some respects it was a kind of progress, as other HIV-related cases had been denied in the past, despite considerable press attention.

The media attention brought its own challenges. The press came to us in great numbers. Keeping the plaintiff’s privacy was extremely important to all of us, and so we didn’t release Xiao Wu’s telephone number to anyone at first. Any journalists that wished to interview him had to go through us. We also suggested that Xiao Wu get a new cell phone number to use exclusively for media interviews. He didn’t understand the reason for this at first, but later it became clear [that reporters could use his cell phone number to find and publish his real name]. He changed cell phone numbers four times over the course of the case, and as a result we were able to prevent leakage of his private information.

I believe our suggestion that Xiao Wu use an alias, which he did through the entire process, was key to gaining his trust.
Even during our private conversations, I used the pseudonym. On one occasion, he told me gratefully that when he and his classmates discussed the first HIV-related discrimination case which had been causing such a stir, his classmates didn’t suspect he had anything to do with it.

Legal Issues

From a legal perspective, the case was not complicated. To put it simply, a government departmental regulation, the Physical Standards for Civil Service Employees, conflicts with the national Employment Promotion Law, the national Law on Prevention and Treatment of Infectious Diseases, and the HIV Prevention and Treatment Act.

However, many other state-run institutions refer to the civil service standards when setting their own physical requirements for employees. As a result, people living with HIV/AIDS are often unable to obtain any public employment. In addition, this same civil service “standard” resulted in the civil service rejecting a person with Hepatitis B in 2005. After
a lawsuit, these irrational requirements were changed. But because of lingering ignorance around HIV/AIDS, people with HIV are often still rejected when they apply for government jobs.

What’s more, in addition to the Physical Standards, the civil service has a physical examination manual which describes HIV/AIDS as follows: 100% of people with HIV will spread the disease, and without treatment, most people who have HIV will die within two years. Therefore, when an HIV-positive diagnosis is made, the physical examination is immediately declared “unsatisfactory.”

The information in the manual is obviously completely out of step with current medical research. Senior Chinese doctors with expertise on HIV/AIDS now say that given the development of pharmaceutical treatment, HIV can be like other chronic diseases such as diabetes and high blood pressure. With sustained antiretroviral treatment, a 20-year-old
living with HIV can easily live — and work productively — for many decades.

But while the Anhui case seemed clear-cut to us, in this case, we saw a great deal of China’s unfortunately widespread use of regulations and policies (instead of actual laws) as the basis of court decisions. In deciding against us, the judge completely side-stepped the central — and politically controversial — issue of whether the Physical Standards did or did not violate national laws. When we argued that using civil service standards to in evaluating potential teachers is mistaken and irrelevant from a legal perspective, the government’s lawyers argued that China’s Educational Instructor Law didn’t set specific health requirements for teachers, and neither did the List of Teacher Qualifications – so therefore, the Ministry of Education had to use the civil service standards.

Later, the Anhui Provincial government issued a document suggesting that all areas of government try to apply the civil service Physical Standards. Therefore, during our lawsuit, this legally-insignificant document regulated that any government institution could refer to the civil service physical examination standards when setting its own health requirements for employment. The process of losing on the first round was both tragic and absurd.

At Yirenping, we found it difficult to decide whether or not to announce the unsuccessful case verdict. We knew this
loss would have a major impact on the similar case we were arguing in Sichuan, not to mention on the entire HIV anti-discrimination cause.

About two weeks later, one reporter after another came to inquire about the outcome of the case, and so we eventually decided to publicly announce the case verdict to the media. We expressed our personal opinions, while declaring that we intended to continue to litigate similar cases. After such an unreasonable verdict, our only desire was to appeal.

In January 2011, while we waited for the decision, we took part in a seminar on the topic of HIV-related employment discrimination at Yunnan University’s HIV Legal Aid Center. It had already been two months since the initial loss, but the experts and scholars in the seminar continued to have relatively high expectations about the future outcome of the appeals process. Prof. Wang Ruotao, an expert from the Ministry of Health HIV/AIDS Prevention
and Control Committee, brought exciting news to the seminar: the Ministry of Health and the People’s Insurance Department were currently discussing this issue, and one department had agreed to amend the General Standards for Civil Service Recruitment Examinations.

However, unknown to us, two thousand kilometers away from Yunnan, the outcome of the Anhui appeal was already set in stone. On March 10, 2011, I received word that the Anhui case had lost on appeal – and the date on the court decision was the same date in January on which we had met so hopefully in Yunnan.

I was naturally disappointed: since the previous summer, this case, along with a Sichuan HIV employment discrimination case I had also taken up, had occupied most of my time at work. At the same time, I was shocked that the highly influential Anhui case had not even been given a formal hearing in the Appeals Court. The verdict was handed down directly – which was absolutely unheard-of.

Further Setbacks in the Courts

After losing the Anhui case, as we had feared, we lost our second case in Sichuan very quickly, and a later appeal was
also unsuccessful. In a flash, many people’s hopes were dashed, leaving us all devastated.

 

This was especially true of the plaintiff in the Sichuan case, whose identity and private information were shared by government leaders with four or five different government agencies. He couldn’t just comprehend how they could do
such a thing and refuse any legal responsibility. All we received in response to our demands was the single sentence: “There is no evidence to support allegations that the defendant purposely spread the plaintiff’s physical exam
information.”

The unsuccessful litigation in both Anhui and Sichuan were two serious blows to the fight against HIV/AIDS-related
discrimination in China. At this time, we are in the process of filing the third such case, and we hope it will make the wall of discrimination faced by people living with HIV/AIDS that much weaker. But in the future, it won’t be as easy to generate media coverage. Once the stir about the first case passed, we saw a steep decline in media interest in the second case.

It’s a difficult road we travel, but we are still continuing to give it our best effort. Just as Xiao Wu says, “Discrimination is an oppressive wall, and we need everybody’s help to tear it down.”

Yu Fangqiang is the director of Tianxia Gong. He was formerly head coordinator of Yirenping Center.