Job seeker successfully sues hospital for violation of right to privacy

A 25 year-old university graduate with Hepatitis B has, for the first time in China, successfully sued a hospital for violating his right to privacy after it gave the results of his blood test to a prospective employer.

It is common practice in China for companies to demand that job applicants undergo a health check so as to eliminate candidates with the Hepatitis B virus (HBV). Moreover, hospitals routinely hand over the results of such tests to the company rather than the prospective employee.

However, the court’s decision last month to award the plaintiff Guo Lin (pseudonym) with 5,000 yuan in compensation may give other medical facilities conducting such tests pause for thought.

“What I’m most pleased about,” Guo, told China Youth Daily, “is that the hospital eventually accepted it was in the wrong.” Guo stressed that the case was partly about getting justice for himself, but also about ensuring that other people with HBV did not have to suffer the same kind of oppression he did when applying for a job.

The court decision coincided with an announcement by Health Ministry spokesman Deng Haihua that the screening of prospective employees and students for HBV should be abolished because they did not pose a public health risk. No firm date for the abolition of the HBV test has yet been set by the ministry, but the extensive press coverage of Guo’s case has raised public awareness of the problem and could help push the authorities towards finally eliminating this widespread and discriminatory practice.

Guo Lin’s lawsuit was significant, firstly because it targeted the hospital that conducted the test rather than the company that ordered it, and secondly, because it focused on the right to privacy (a relatively new concept in China) and not employment discrimination per se, as has been the case with most HBV lawsuits in the past.

The case began two years ago when Guo applied for a position and was granted an interview at a Hangzhou subsidiary of Taiwanese electronics giant, Foxconn, in May 2007. After the interview, he was told to visit the local Xiasha Hospital for a medical checkup, which he did on 1 June. On the same day, around Foxconn informed Guo that he would not be employed at the company because he was HBV positive.

The news came as shock to Guo, who had hitherto been unaware of his condition. He later discovered that the virus in his blood was inactive but the company still refused to change its position.

Guo decided to sue based on the provisions of the Opinions on Protecting the Employment Rights of those with the Hepatitis B Surface Antigen (关于维护乙肝表面抗原携带者就业权利的意见) issued by the Health Ministry just two weeks before his blood test, which state that “When carrying out employee health checks, every medical institution should seek to protect the right to privacy of those with the Hepatitis B surface antigen .”

The Honggan District Court in Hangzhou accepted the case and, after extensive legal wrangling, on 9 October 2009, awarded Guo 5,000 yuan compensation in a mediated settlement.
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