After being admitted to the company, it was rejected because of hepatitis B. Procuratorate: It constitutes employment discrimination.
After the case was settled, Songjiang District Procuratorate organized a special seminar on safeguarding workers’ equal employment rights.
In 2010, Ministry of Human Resources and Social Security, the Ministry of Education and the Ministry of Health jointly issued a notice to cancel the hepatitis B testing program in the physical examination for admission and employment, and to safeguard the rights of hepatitis B virus carriers in admission and employment according to law. However, in real life, discrimination against HBV carriers still exists.
A few days ago, in the face of a hepatitis B virus carrier’s request for help after employment discrimination, Shanghai Songjiang District Procuratorate not only decided to support the applicant to sue the company concerned and safeguard the applicant’s equal employment rights, but also issued procuratorial suggestions to the company concerned, urging the company to improve the recruitment system, and promoting Songjiang District Court and District People’s Social Security Bureau to form a joint force to eliminate employment discrimination and create a fair and just recruitment environment.
The company illegally takes HBV DNA testing as a physical examination item.
In June 2022, after several rounds of interviews, Mr. Zhu was hired by Company A as an industrial quality inspector. After being hired, Mr. Zhu agreed on the signing time of the labor contract with the personnel administrative personnel of Company A, and went through the resignation formalities from the original company. Before signing the labor contract, Mr. Zhu truthfully told Company A that he had hepatitis B virus. The company then asked Mr. Zhu to have a routine physical examination with hepatitis B virus DNA testing on the grounds that employees bought insurance.
A week later, Mr. Zhu sent the results of routine physical examination and HBV DNA test to the personnel and administrative personnel of Company A. However, a few days later, Mr. Zhu received a reply from the company that "you are not suitable for the position". Mr. Zhu has doubts about this statement, and suspects that the reason for the other party’s refusal is that he is different from ordinary people in the test report.
In July 2022, Mr. Zhu reflected this situation to the Shanghai Municipal Bureau of Human Resources and Social Security. The Municipal Bureau of Human Resources and Social Security transferred the clue to the Songjiang District Bureau of Human Resources and Social Security for verification and handling in accordance with the principle of territoriality. Songjiang District Bureau of Human Resources and Social Security found out after receiving the clue that the post of industrial quality inspector of Company A did not belong to the post that needed to take hepatitis B virus serological indicators as the physical examination standard. The company’s request for Mr. Zhu to do hepatitis B testing violated the provisions of the Employment Service and Employment Management Regulations: employers should not use hepatitis B virus serological indicators as the physical examination standard except for the work prohibited by national laws, administrative regulations and the State Council health administrative department.
Accordingly, Songjiang District People’s Social Security Bureau issued a notice of rectification to Company A and imposed administrative penalties on it.
Support prosecution according to law, solve the difficulty of workers’ rights protection
Obviously, he has successfully passed several rounds of interviews, and all his abilities meet the job requirements, but he was rejected because of hepatitis B, which made Mr. Zhu feel discriminated against in employment. In December 2022, Mr. Zhu filed a civil lawsuit with the court, demanding that Company A pay for his spiritual comfort.
In February this year, Mr. Zhu applied to Songjiang District Procuratorate to support the prosecution because he was worried about his insufficient ability to defend his rights. After receiving the application, the prosecutor in charge learned more about the case from Mr. Zhu, Company A and the District People’s Social Security Bureau, and read the administrative punishment decision from the District People’s Social Security Bureau to understand the basic facts of the case and clarify the basis for punishment.
In order to prove that there is a direct relationship between the illegal behavior of company A and its refusal to recruit Mr. Zhu, the prosecutor was sent to company A to conduct an investigation. Upon inquiry, the relevant staff of Company A admitted that it was indeed because of Mr. Zhu’s high HBsAg value that the management of the company made the decision not to hire. Combined with the evidence of the original and defendant’s words and the evidence provided by Mr. Zhu, such as chat records, physical examination reports, withdrawal of work orders, and administrative punishment decisions, the prosecutor believes that the existing evidence is sufficient to prove that Company A refused to hire Mr. Zhu because his hepatitis B index exceeded the standard, which constitutes employment discrimination.
"China’s labor law stipulates that workers have the right to equal employment, and the Employment Promotion Law also clarifies that if employment discrimination is implemented, workers can bring a lawsuit to the court. I wish Mr. Zhu a lawsuit on the grounds that the right to equal employment has been violated. " The prosecutor in charge said that the case occurred in the process of concluding a labor contract between the laborer and the company and belonged to the labor field. Workers are in a relatively weak position, and from the existing cases and the actual situation of social life, when workers are infringed on their equal employment rights because of carrying hepatitis B virus, they are often limited by their own litigation ability, unable to provide strong evidence to prove employment discrimination, and may encounter unfavorable litigation. Therefore, the procuratorate believes that the case is indeed necessary to support the prosecution.
On March 15th this year, Songjiang District Procuratorate issued a supporting prosecution opinion to the court according to law.
Extending the tentacles of supervision to help eliminate employment discrimination
After the decision to support the prosecution is made, the prosecutor in charge will assist the court to carry out mediation work on the basis of clarifying the facts of the case and determining the responsibility, so as to calm the mood of the parties, avoid the parties and the company concerned from delaying their normal life and business due to litigation, promote the resolution of contradictions, and truly settle the case.
On March 16th, the court heard the case, and the prosecutor appeared in court to support the prosecution. In the witness of the judge and the prosecutor, the two sides reached a mediation agreement in court, and the court issued a civil mediation book. Company A quickly fulfilled the payment obligation determined in the mediation document and compensated Mr. Zhu for his spiritual comfort and rights protection expenses.
"There may still be many ‘ Mr. Zhu ’ We must extend the legal supervision tentacles, promote enterprises to improve the recruitment system, and provide equal employment opportunities for every job seeker. " After the case was settled, Songjiang District Procuratorate organized a special seminar to protect workers’ equal employment rights, and invited the district courts, the District People’s Social Security Bureau and the people’s supervisors to participate in it to discuss how to control the social problem of employment discrimination. The District People’s Social Security Bureau said that whether the enterprise recruitment system is perfect and whether there is employment discrimination will be included in the inspection items in various special activities in the future.
"Compliance with employment according to law is also an important part of enterprise compliance management. The employer’s employment autonomy cannot break through the legal red line and cannot infringe on the employee’s employment autonomy." In order to help the company concerned to further improve the recruitment system and enhance the legal awareness, on March 22nd, the prosecutor in charge announced that he had delivered the procuratorial suggestions to Company A, and educated it in law popularization.
After receiving the procuratorial suggestions, Company A reflected on the existing recruitment system and the problems existing in the recruitment process, and gave a written reply to the Songjiang District Procuratorate on the implementation of the rectification, introducing the current streamlined and standardized recruitment system and the legal training plan for personnel administration personnel, indicating that the relevant rectification will be extended to all positions in the company to prevent the recurrence of employment discrimination.