ILO Welcomes China Landmark Ruling Banning Discrimination in Employment against People living with HIV

By Mr Tim De Meyer, Director, ILO Country Office for China and Mongolia

Statement | Beijing, China | 03 August 2017
The ILO welcomes the first known ruling in China by a court holding that employers who ban employees from the workplace based on their HIV status discriminate against these employees and therefore act unlawfully, even when pay is maintained during the leave of absence. The ruling is good news for the nearly 700,000 people who are living with HIV in China and who now see their opportunities for access and retention of productive employment protected against discrimination under the law. The ruling is also good news for public health which suffers from employment discrimination. Stigma and discrimination fundamentally undermine progress towards ending the HIV epidemic. Fear of stigma and discrimination discourages people from getting to know their HIV status through voluntary testing and counselling, and so restricts their access to life-saving antiretroviral treatment.

On June 19, the Guangzhou Intermediate People’s Court issued a landmark ruling in holding that it is unlawful for an employer to order an employee to stay at home for “rest” based on the individual’s HIV-positive status. The court held that “it constitutes discrimination if an employer prohibits the worker from working based on his or her HIV status. HIV is not a ‘nightmare’, but it is the ignorance and bias towards the infection, and the discrimination towards people living with HIV that is detrimental to society.”

The court also found that that employer’s failure to offer a labour contract without limit of time following a sequence of fixed-term contracts contravened the Labour Contract Law. Failure to continue the employment relationship based on the employee’s HIV-status would also have amounted to employment discrimination, but it does not appear from the verdict that the employee made that specific legal argument.

This decision also resonates with the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Recommendation concerning HIV and AIDS and the World of Work (Recommendation No.200, 2010). These international standards serve as authoritative global guidance influencing workplace policies on discrimination and HIV. R. 200 recalls that workers should not be subjected to HIV-related stigma and discrimination in any aspect of the employment relationship, including selection and recruitment and terms and conditions of employment. Measures should be in place to ensure the application of the principle of non-discrimination. HIV status alone should not be a ground for termination of employment, denial of access to a job or occupation, or a ground for a medical finding of lack of fitness for work.

Combating workplace discrimination directly supports sustainable development. With the medical treatment currently available, PLHIV are fully productive and guaranteeing equality of opportunity and treatment to qualified workers living with HIV promotes full and productive employment, decent work and inclusive growth (SDG 8) as well as policies and practices that eliminate discrimination (SDG 10.3).

China is committed to making Sustainable Development Goals a reality through its remarkable progress. China ratified the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) in 2006. ILO encourages China to consider further measures asserting the fundamental rights of people in employment and occupation, including reinstatement in cases of discrimination. It also encourages China to ban mandatory testing for HIV prior to recruitment, starting in the public sector, and to actively support voluntary testing and counselling in line with R. 200.