Working Conditions

Plight of hepatitis B virus carriers in China

"In the hepatitis B camp" (www.hbvhbv.com), an online campaign group combating discrimination against hepatitis B virus (HBV) carriers in China, staged a public protest in Hong Kong in July 2007, against VTech Holdings Ltd., a technology company based in the territory. Though it was not the first such action mounted by the HBV carriers’ support group, the Hong Kong protest led by Lu Jun, a prominent activist of "In the hepatitis B camp" was one of the most high profile manifestations of the anti-discrimination campaign.

Insitutionalised Discrimination

Hepatitis B virus carriers are among a huge number of people in China who face discrimination, often of an institutionalized nature. People with HIV/AIDS are another major group encountering discrimination. [NOTE 1] Others who face neglect and worse include the massive armies of migrant workers spread out across China and numbering in their tens of millions, those with mental and physical disabilities, women and girls as well as ethnic minorities. [NOTE 2] People are also known to suffer on account of height and age: Many entities, including the Chinese foreign ministry, are said to prefer taller people while others would rather have younger workers who can be paid less. Religious belief can be another cause of discrimination in employment in China. The Communist Party has itself acknowledged the prevalence of some, though not all, of these discriminatory practices. [NOTE 3]

The hepatitis B virus can attack the liver and cause lifelong infection, cirrhosis or liver cancer but it does not spread through casual contact. Some Chinese medical companies are known to have exaggerated the dangers of the hepatitis B virus in order to boost the sales of their cures or of their testing services and discrimination is rising. The official Chinese media has at last been waking up to the problem and has pronounced itself against “a ridiculous discrimination against 120 million people”. Legal cases have been launched, seeking to protect the rights of HBV carriers and thousands of people have dared to register their protests.[NOTE 4]

According to the Chinese Ministry of Health, HBV carriers comprise 9.75 percent of the nation's 1.3 billion population. A third of the world’s population is believed to be affected by HBV but most people can, in fact, get treatment and recover.[NOTE 5] However, there are some 400 million who cannot shake off the virus and are regarded as HBV carriers. About 75 percent of them are in Asia. One of the misunderstandings surrounding hepatitis B is that it is thought to be “genetic”, and therefore “incurable” and impossible to forestall. In actual fact, the World Health Organization says: “It is preventable with safe and effective vaccines that have been available since 1982.” [NOTE 6] The most common route of transmission is during childbirth, from mother to child. Others include unprotected sex, blood transfusions, shared use of needles and syringes.

In China, hepatitis B carriers encounter discrimination in schools, at the workplace and in social contact. In October 2006, reports came to light of 19 students who tested positive for hepatitis B being dismissed from school in the Xinjiang Uighur Autonomous Province. The 19 dismissed students were issued a certificate saying that they had infectious disease and should go back to their hometown to study. And the local NGO which broke the story saw several of its staff members detained. Even medical schools, which ought to know the virus cannot spread through routine daily contact, bar HBV carriers from studying on their premises. It was only in May 2007 that the Ministry of Labour and Social Security issued a guideline on “defending the HBV carriers' right to work”. It called on employers, other than those dealing in blood banks, food processing and childcare, not to shun job applicants who happen to be HBV carriers and not to fire them for that reason. The ministry also said employers cannot make medical testing for HBV a precondition for employment. However, a guideline is not the same as legislation and lacks teeth, especially when it comes to labour disputes.

The case of Vtech and other MNCs

One glaring instance of discrimination is that of Li Fei (not his real name), who sought help from “In the Hepatitis Camp” after VTech rejected his application for an electronic engineer’s post when it learned of his HBV status. VTech, which is listed on the Hong Kong Stock Exchange, makes electronic learning devices and employs 30,000 people worldwide. On 18 July 2006, Li had a job interview in its Dongguan plant. He filled out his personal records and negotiated the salary with the manager, who told Li he would be employed once his medical examination results came through. The next day, Li was told he would not get the job as he had the hepatitis B virus. Li tried to convince the factory that HBV carriers are not considered as patients, that his liver was functioning normally and that it would not affect his work. But his efforts were in vain.

In January 2007, with the help of “In the Hepatitis Camp”, he launched a civil lawsuit against VTech, for its violation of constitutional provisions on equal employment rights (Article 33 and 42) and the “Prevention and cure law for infectious diseases” (first passed in 1989 and revised in 2004) whose article 16 prohibits discrimination against people in such circumstances. The law says people should not be discriminated against for being carriers of infectious diseases. However, it also says such people cannot be employed in sectors in which the government has barred their recruitment, thus running counter to the cause of fighting institutionalized discrimination. At any rate, in Li’s case, as an employer-employee relation had not yet been formed between the two parties, it was not considered a labour dispute and was therefore rejected by the “Labour Disputes Arbitration Committee”, which would have been a cheap and efficient forum for resolving the issue. Li was thus forced to go to court where it is harder for indigent workers to prove through costly and time-consuming lawsuits that they have been harmed by an act of discrimination.

Li's case is not an isolated one nor is the practice of discrimination limited to a few firms in China. Even globally renowned companies have been found to practice discrimination. In June 2007, the China Hepatitis Prevention Fund released a survey that showed close to 80 percent of the multi-national corporations (MNCs) operating in the country would bar HBV carriers from their workforce and that 96 percent of them require job applicants to undergo tests for hepatitis B. A number of well-known MNCs are named in the survey, including Sony, Siemens, Philips, Samsung, Foxconn and Motorola. [NOTE 7]

Legal Remedies?

In Hong Kong, hepatitis B virus carriers can use the Disability Discrimination Ordinance or seek help from the Equal Opportunities Commission (EOC), in conditions somewhat similar to those obtaining in European countries. Thus, VTech or other companies dare not turn away job-seekers in Hong Kong who happen to be HBV carriers. However, in China, there is no specific organization similar to Hong Kong’s EOC to protect the rights of people in such circumstances.[NOTE 8]

When China’s new Labour Contract Law was being drafted in 2006, one clause (Article 8) sought to make the following provision: “Employers shall have the right to know any background information with regard to the age, health… of employees as are directly related to the conclusion and performance of the labour contracts”. This brazen move sparked a furor among HBV carriers, who felt such a clause would allow employers to justify discriminating against them, in total disregard, moreover, of their privacy. After a year-long debate, the proposed clause was left out of the Labour Contract Law.

However, non-inclusion of the discriminatory provision in the Labour Contract Law does not seem to restrain employers from forcing people to take the HBV test. Moreover, the Chinese government itself has been the biggest perpetrator of discriminatory acts against HBV carriers. In fact, it can also be said that government-run hospitals were behind the spread of the virus: Most of the HBV cases occurred in the 1970s and 1980s when hospitals did not sterilize the shared-use needles properly, according to Lu Jun of "In the hepatitis B camp". In 1994, the government began discriminating against HBV carriers in civil service recruitment. According to the Food Hygiene Law and Public Services Law, HBV carriers are excluded from the government’s catering services as well as from the nursery and kindergarten education posts. Schools run by China’s vast military establishment too refused to recruit HBV applicants. All these actions sent out the message to the public and specifically to employers that HBV carriers were somehow unfit for work. In other words, the government practiced institutionalized discrimination over a number of years, also harming HBV carriers’ social life, making it difficult for them to enroll in schools, find spouses and lead normal lives. [NOTE 9]

Small steps and personal tragedies

It was only in 2003 that a small dent began to be made at the governmental level when two cases forced attention to the plight of HBV carriers. In the first, Zhou Yichao, a graduate of Zhejiang University, passed two interviews for a civil service recruitment test, but failed in the medical examination. In a fit of rage, he killed a personnel department official and wounded another. Zhou was sentenced to death. An opinion survey carried out by the Jiaxing University law department, which interviewed people in different professions, showed that 83 percent believed his death penalty was undeserved. However, following the penalty, the provincial government in Zhejiang excised from its recruitment manual the clause excluding HBV carriers from the civil service.

In the second case, Zhang Xianzhun in Anhui province also met with frustration when he filed a complaint of “hostile discrimination and violation of HBV carriers’ right to employment” against the Wuhu city personnel department. He received extensive backing from other HBV carriers. University teachers offered him free legal assistance. He won the case but the government nevertheless refused to give him a job as the recruitment period had lapsed. [NOTE 10]

Gaining more attention through such actions does not mean HBV carriers will have a smoother path in claiming their rights. They have won only a few cases. Moreover many of them cannot afford recourse to courts of law.  

IHLO

September 2007

________________

More relevant information, cases and campaigning

China Labour Bulletin

Five thousand petitioners demand Hewlett-Packard take action against Hepatitis B discrimination

Hepatitis B rights campaigners delivered a 5,000 signature petition to the head office of Hewlett-Packard (China) in Beijing on 29 August demanding that HP condemn the actions of its supplier Cal-Comp in sacking 22 employees carrying the Hepatitis B virus...

Responding to Hepatitis B discrimination in the workplace

More than 120 million Chinese, about ten per cent of the population, carry the Hepatitis B virus....

 Coca Cola plant accused of Hepatitis B discrimination
A major Coca Cola bottling plant in China stands accused of discrimination after a prospective employee was allegedly refused a clerical position after testing positive for Hepatitis B...

Human Rights in China

Hepatitis B: A catalyst for anti-discrimination reforms?

China Development Brief [Now shut down]

Hepatitis B stigma provokes outcry in Xinjiang

Despite central directives to discourage discrimination against the tens of millions of people infected with Hepatitis B, old habits die hard in Xinjiang where parents are taking legal action against education authorities for barring their children from a coveted educational opportunity, and where a local NGO that broke the news to media has met with a stern response...

NOTES