Legal experts enter, on the issue of employment discrimination for hepatitis B carriers

It’s not okay if they refuse employment because of your hepatitis B, but it’s hard to say if it’s for other reasons.

I will give you a reference to the judgment of a relatively famous case:

Zhang Xianzhu v. Wuhu Municipal Personnel Bureau Civil Servant Recruitment Administrative Employment Decision

Wuhu City, Anhui Province Administrative Judgment of the People’s Court of Xinwu District

(2003) Xinxingchuzi No. 11

Plaintiff Zhang Xianzhu, male, born on June 14, 1978, Han nationality, lives in Qingshui, Wuhu County No. 430, Qinglian Road, Zhenzhou.

Authorized agent Zhou Wei, male, born on April 18, 1956, Han nationality, professor at Sichuan University Law School.

Authorized agent Lu Jiefeng, male, born on November 22, 1981, Han nationality, a 2001 student of Sichuan University Law School.

The defendant is Wuhu City Personnel Bureau, domiciled in Fanluoshan, Wuhu City.

Legal representative Bao Huaming, Director.

Authorized agent: Fang Ming, lawyer at Anhui Jingcheng Law Firm.

The plaintiff Zhang Xian sued the defendant Wuhu City Personnel Bureau over the administrative recruitment decision of civil servants. The plaintiff filed an administrative lawsuit with this court on November 10, 2003. After accepting the case, this court formed a collegial panel in accordance with the law and held a public hearing on the case on December 19, 2003. Plaintiff Zhang Xianzhu and his authorized agents Zhou Wei and Lu Jiefeng, and defendant Wuhu Municipal Personnel Bureau’s authorized agent Fang Ming attended the court to participate in the lawsuit. This case has been approved by the Anhui Provincial Higher People's Court to extend the trial period for three months, and the trial has now concluded.

In June 2003, the plaintiff Zhang Xianzhu applied for the Anhui Provincial National Civil Service Examination at the Wuhu Municipal Personnel Bureau. The position he applied for was the economic management major of the Wuhu County Party Committee Office. After the written examination and interview, the candidate ranked first among the thirty candidates who applied for the position in terms of comprehensive scores, and entered the physical examination process as required. On September 17, 2003, Zhang Xianzhu underwent a physical examination at the Tongling People's Hospital designated by the Wuhu Municipal Personnel Bureau. The physical examination report showed that HbsAg, HbeAB, and HBcAb in both halves of his hepatitis B were positive. "Provincial and National Civil Servant Recruitment Physical Examination Implementation Rules (Trial)" determined that he failed the physical examination. On September 25 of the same year, the Wuhu Municipal Personnel Bureau organized 11 candidates, including Zhang Xianzhu, to go to the 86th Hospital of the People's Liberation Army for reexamination. The re-examination results showed that HBsAg and anti-HBc (fluid) in both halves of Zhang's hepatitis B infection were positive, while anti-HBs, HbeAg and anti-Hbe were negative, and the physical examination was concluded to be unqualified. According to the results of the physical examination, the Wuhu Municipal Personnel Bureau announced verbally to Zhang Xianzhu that Zhang Xianzhu would not be admitted because he failed to pass the physical examination.

Plaintiff Zhang Xianzhu claimed that the defendant Wuhu Municipal Personnel Bureau, as the personnel management agency for civil servant recruitment, only based on the fact that the plaintiff was positive for HBsAg and anti-HBc (fluid) in the two-and-a-half hepatitis B examination, It was determined that the plaintiff did not meet the physical health standards for civil servants and that the plaintiff was deprived of his qualifications and labor rights to serve as a national civil servant. He requested the people's court to revoke the defendant's specific administrative actions in accordance with the law and order the defendant to bear corresponding legal responsibilities.

The evidence materials cited by the plaintiff to the court when suing include:

1. Two copies of the "Wuhu Second People's Hospital Inspection Report", "Yijishan Hospital of Wannan Medical College" "Test Report" to prove that the plaintiff's two and a half hepatitis B tests were only "one and five positive".

2. The Ministry of Health's "Viral Hepatitis Prevention and Treatment Plan" was used to prove that the plaintiff's physical condition met the professional requirements of civil servants, and the normative documents relied on by the defendant were illegal.

On November 18, 2003, the defendant Wuhu Municipal Personnel Bureau submitted a statement of defense to this court, and argued during the trial that the respondent strictly implemented the policy of recruiting civil servants, and the entire recruitment process reflected Fair, open, impartial and fully compliant with legal provisions. Plaintiff Zhang Xianzhu's failure in the physical examination was the only reason why he was not allowed to enter the assessment process and was therefore unable to be admitted. The defendant's specific administrative actions were legal. The plaintiff's request to the court to allow the plaintiff to be hired as a civil servant has no legal basis, and he requests the People's Court to reject his claim in accordance with the law.

The factual evidence and legal basis submitted by the defendant on November 19, 2003 are:

1. Tongling Municipal People’s Hospital’s inspection report on candidate No. 35, namely Zhang Xianzhu Single, adopt a physical examination form to prove that the plaintiff’s physical examination at Tongling People’s Hospital was unsatisfactory and the reasons for the re-examination.

2. The 86th Hospital of the People's Liberation Army's examination report sheet, the admission physical examination form, and the certificate of failure in the physical examination for candidate No. 11, Zhang Xianzhu, to prove that the plaintiff was admitted to the 86th Hospital of the People's Liberation Army The re-inspection conclusion was unqualified.

3. "Interim Regulations on National Civil Servants" and "Interim Regulations on the Recruitment of National Civil Servants" to prove the defendant's legal basis for recruiting national civil servants.

4. Anhui Provincial Department of Personnel’s “Notice on Issuing Several Supporting Implementation Rules (Trial) for the Implementation Measures for the Recruitment of National Civil Servants in Anhui Province”, including the “Implementation Rules for Physical Examination for the Recruitment of National Civil Servants in Anhui Province (Trial) )" to prove the defendant's standards for recruiting national civil servants.

5. (1) Notice of the Organization Department of the CPC Anhui Provincial Committee and the Department of Personnel of Anhui Province on the Issuance of the "Issue Implementation Plan for the 2003 Examination and Recruitment of National Civil Servants (Agency Staff) in Anhui Province" and "Implementation Plan for Anhui Province's 2003 Examination and Recruitment of National Civil Servants (Government Staff)",

(2) "Implementation Opinions on Wuhu City's 2003 Examination and Recruitment of National Civil Servants (Government Staff)",

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(3) Anhui Provincial Examination and Admissions Office's "Notice on Specific Issues Concerning the Physical Examination, Assessment, Publicity and Approval of National Civil Servants (Agency Staff) Recruited for the 2003 Examination",

< p> (4) "Announcement on the Recruitment of National Civil Servants (Agency Staff) for the 2003 Examination" (No. 1) issued by the Organization Department of the CPC Wuhu Municipal Committee and the Wuhu Municipal Personnel Bureau.

This proves that the procedures followed by the defendant to recruit national civil servants are legal.

The case was determined during the trial and cross-examination:

1. The plaintiff did not object to the authenticity of the first set of evidence submitted by the defendant Wuhu Municipal Personnel Bureau, but questioned its legality , held that: There are differences between the physical examination report and the physical examination conclusion of the 86th Hospital of the People's Liberation Army during the re-examination, and should not be accepted. The defendant refuted the plaintiff's question and held that: the physical examination report and the re-examination report were both made by the entrusted medical examination hospital, and the defendant had no right to change the medical examination conclusion of the medical examination hospital. After the initial examination, the plaintiff requested a re-examination, and the defendant reported it to his superior Requesting instructions, the plaintiff Zhang Xianzhu was allowed to participate in the re-examination, which reflected his humanistic care for the candidates and had never maliciously discriminated against the plaintiff. The collegial panel held that: The plaintiff had two physical examinations, the initial examination was at Tongling People's Hospital, and the reexamination was at the 86th Hospital of the People's Liberation Army. Article 8 of the reexamination physical examination instructions clearly stipulates that this examination is the final examination. The defendant agreed that the plaintiff participated in the re-examination together with other personnel, and the re-examination was jointly organized by the Wuhu Municipal Personnel Bureau and the Disciplinary Inspection and Supervision Department. Therefore, the physical examination process was true and legal, and the re-examination results should be confirmed as valid evidence. The defendant did not use this evidence in the administrative proceedings. In accordance with Article 54 of the Supreme People's Court's "Provisions on Certain Issues Concerning Evidence in Administrative Litigation", the plaintiff's objection was established and should be accepted.

2. The plaintiff does not object to the authenticity of the second set of evidence submitted by the defendant Wuhu Municipal Personnel Bureau, but questions its legality, arguing that: as a medical examination hospital, the hospital has no right to make improper decisions. A qualified legal judgment, which went beyond the scope of duties; the plaintiff’s re-examination of the two-and-a-half hepatitis B test results were “one and five positives”. This situation does not fall under the unqualified two-and-a-half hepatitis B test specified in the physical examination standards, and According to the provisions of the "Infectious Diseases Prevention and Control Law", the occupations prohibited by hepatitis B virus carriers have nothing to do with the position the plaintiff applied for. It is illegal for the hospital to conclude that the plaintiff failed the physical examination. The defendant refuted the plaintiff's challenge and held that: According to the reexamination conclusion of the 86th Hospital of the People's Liberation Army, the plaintiff Zhang Xianzhu was disqualified from employment due to physical unqualification. The Wuhu City Personnel Bureau made a normal decision based on the normative documents related to the recruitment of civil servants. Administrative actions do not involve malicious discrimination as claimed by the plaintiff.

The collegial panel held that: Judging from the test report form of the 86th Hospital of the People's Liberation Army provided by the defendant, the two-and-a-half test results for hepatitis B were "one and five positives", and compared with the physical examination in the "Implementation Rules for the Physical Examination for the Recruitment of National Civil Servants in Anhui Province (Trial)" The standard does not stipulate that "one or five positives" are unqualified when two and a half tests of hepatitis B fail, and the medical examination standards stipulate that if the liver function test is confirmed to be a patient with chronic active hepatitis, the physical examination will be unqualified. This situation was not confirmed in the physical examination report and subsequent certificates. The 86th Hospital of the People's Liberation Army judged Zhang Xianzhu to have failed the physical examination based on the situation of "one and five positives" that was not confirmed in the physical examination standards, which violated Anhui regulations. Provincial medical examination standards stipulate that this conclusion should be an invalid conclusion. The No. 86 Hospital of the People's Liberation Army made an error in proving that "one and five positives" in the two-and-a-half hepatitis B examination should be considered a failure in the physical examination, and it was an ultra vires act because the "Implementation Rules for the Physical Examination for the Recruitment of National Civil Servants in Anhui Province (Trial)" did not It is stipulated that "one and five positives" in the two-and-a-half hepatitis B examination are unqualified in the physical examination, and the medical examination hospital has not been granted the right to interpret. This conclusion of the hospital has been proved to be an invalid explanation. According to the provisions of the Supreme People's Court on Several Issues Concerning Administrative Litigation Evidence 》Article 57, Paragraph 9, the plaintiff’s objection is established and should be accepted.

3. The defendant questioned the legality, authenticity, and relevance of the first set of evidence submitted by the plaintiff, arguing that these physical examinations were not conducted during the recruitment process for national civil servants. , has nothing to do with the specific administrative act accused, so this set of evidence is not recognized. The plaintiff refuted the defendant's challenge and held that: this set of evidence proved that "one and five" of the plaintiff's two-and-a-half hepatitis B tests were positive. Compared with Tongling People's Hospital, the test results of the No. 86 Hospital of the People's Liberation Army had smaller errors. The collegial panel held that: this set of evidence was not provided and used in the recruitment process of national civil servants, and its authenticity cannot be verified. In accordance with the provisions of Article 60, Item 3 of the Supreme People's Court's "Regulations on Several Issues Concerning Evidence in Administrative Litigation" , the defendant’s objection is established and should be accepted.

4. The defendant does not object to the legality and authenticity of the second set of evidence raised by the plaintiff, but questions its relevance, arguing that: the plan’s regulations on the management of hepatitis B virus carriers are inconsistent with There is no conflict in the "Anhui Province National Civil Servant Recruitment Physical Examination Implementation Rules (Trial)" because the scope of application of the two is different. The plaintiff refuted the defendant's challenge and held that: the Ministry of Health's "Viral Hepatitis Prevention and Treatment Plan" is a special provision of the law, which is more effective than local regulations and should be applied with priority. The collegial panel held that: The regulations on the management of hepatitis B virus carriers in the "Viral Hepatitis Prevention and Control Plan" of the Ministry of Health and the regulations on the health standards of civil servants in the "Implementation Rules for Physical Examination for Civil Servants Recruitment in Anhui Province (Trial)" are based on different management purposes by the competent state agencies. However, the two provisions are consistent with each other. The defendant's objections are valid and should be accepted.

5. The plaintiff does not object to the authenticity of the fourth set of legal basis proposed by the defendant Wuhu Municipal Personnel Bureau, but questions its legality. It is believed that the implementation details violate citizens' rights to equality stipulated in the Constitution, the political rights of national civil servants to participate in public affairs, and citizens' rights to privacy and labor rights. The defendant refuted the plaintiff's challenge, arguing that the formulation of the implementation rules was authorized by clear administrative regulations. The civil servant recruitment process did not infringe upon the plaintiff's rights granted by the Constitution during the implementation of the rules. The plaintiff was not hired because of his physical condition. Not enough and eliminated. The collegial panel held that: The "Implementation Rules for Physical Examination for Civil Servant Recruitment in Anhui Province (Trial)" comes from the explicit authorization of the Ministry of Personnel's "Interim Provisions for the Recruitment of National Civil Servants" and is a legal and effective normative document. This legal basis provided by the defendant can be used as a reference. The plaintiff's objection is untenable and shall not be accepted.

6. The plaintiff does not object to the authenticity and relevance of the fifth set of legal basis proposed by the defendant Wuhu City Personnel Bureau, but questions its legality and purpose of proof, arguing that: in Wuhu City The recruitment of civil servants within the scope is a specific administrative act carried out by the defendant. The physical examination was completed by the hospital designated by the defendant, and the nature of the act should be an administrative entrustment relationship. The defendant refuted the plaintiff's challenge and held that: in accordance with relevant regulations, the defendant designated a hospital to conduct a physical examination, which was an appraisal entrustment relationship, not an administrative entrustment relationship, and the physical conclusion made by the hospital was an appraisal conclusion.

The collegial panel held that: The defendant entrusted the No. 86 Hospital of the People's Liberation Army to conduct physical examinations on candidates in accordance with the provisions of the "Anhui Province National Civil Servant Recruitment Physical Examination Implementation Rules (Trial)", which should be an administrative entrustment relationship. The plaintiff's objections were established and should be accepted.

Based on the evidence admitted, this court confirmed the following facts of the case: In June 2003, the plaintiff Zhang Xianzhu applied for the Anhui Provincial Civil Service Examination at the Wuhu Municipal Personnel Bureau, and applied for a position in the economic management major of the Wuhu County Party Committee Office. After the written examination and interview, the candidate ranked first among the thirty candidates who applied for the position in terms of comprehensive scores, and entered the physical examination process as required. On September 17, 2003, Zhang Xianzhu’s physical examination report at the Tongling People’s Hospital designated by the Wuhu Municipal Personnel Bureau showed that he was positive for HBsAg, HBeAb, and HBcAb in both halves of his hepatitis B. The "Recruitment Physical Examination Implementation Rules (Trial)" determines that the applicant has failed the physical examination. Zhang Xianzhu then submitted a re-inspection request to the Wuhu Municipal Personnel Bureau and submitted a written report. On September 25 of the same year, the Wuhu Municipal Personnel Bureau, upon request from the Anhui Provincial Personnel Department, organized 11 candidates, including Zhang Xianzhu, to go to the 86th Hospital of the People's Liberation Army for reexamination. The re-examination results showed that Zhang's hepatitis B virus was positive for HBsAg and anti-HBc (fluid) in both halves of his hepatitis B virus, while anti-HBs, HbeAg and anti-Hbe were negative, and the physical examination concluded that he was unqualified. According to the results of the physical examination, the Wuhu Municipal Personnel Bureau changed the second candidate for the position to enter the physical examination process according to the order of performance. He also announced verbally to Zhang Xianzhu that Zhang Xianzhu would not be admitted due to unsatisfactory medical examination results. On October 18, 2003, after receiving the notice of denial of admission, Zhang Xianzhu expressed his dissatisfaction and submitted an administrative review application to the Anhui Provincial Department of Personnel. On October 28, 2003, the Anhui Provincial Department of Personnel issued the Wanren Fuzi (2003) No. 1 "Decision on Non-acceptance". On November 10, 2003, the plaintiff Zhang Xianzhu filed an administrative lawsuit with this court on the grounds that the actions of the defendant Wuhu Municipal Personnel Bureau deprived him of the qualification to serve as a national civil servant and violated his legal rights. Requesting the court to order the defendant to determine that the plaintiff's "one and five positive" physical examinations (HBsAg, HBcAb positive) did not meet the national civil servant's physical health standards, and illegally deprived the plaintiff of the qualification to enter the assessment process and was not hired for the position of a national civil servant. The specific administrative act is illegal. ; The court ordered to revoke the defendant’s specific administrative action of not allowing the plaintiff to enter the assessment process, and to allow the plaintiff to enter the assessment process and be hired into the corresponding position in accordance with the law.

During the court debate, the parties focused on the focus of the dispute in this case: the legality of the specific administrative act of the defendant Wuhu City Personnel Bureau not allowing the plaintiff Zhang Xianzhu to enter the assessment process because he failed the physical examination. The plaintiff believed that the physical examination standards of the "Anhui Province National Civil Servant Recruitment Physical Examination Implementation Rules (Trial)" violated the citizens' right to equality stipulated in the Constitution, the political rights of national civil servants to participate in public affairs, citizens' privacy rights, and labor rights. As a medical examination hospital, Baoliu Hospital has no right to make legal judgments and went beyond the scope of its duties. The plaintiff Zhang Xian’s re-examination test report showed “one or five positives”. This situation did not meet the physical examination standards and the two-and-a-half test for hepatitis B was not allowed. According to the provisions of the "Law on the Prevention and Control of Infectious Diseases", the occupations that hepatitis B virus carriers are prohibited from engaging in have nothing to do with the position that the plaintiff applied for. The hospital's conclusion that the plaintiff failed the physical examination is illegal. The hospital's physical examination is an integral part of the specific administrative actions of the Personnel Bureau and is based on the administrative entrustment of the administrative agency. The specific administrative actions of the defendant should be revoked. The defendant Wuhu Municipal Personnel Bureau believed that the physical examination standards were formulated based on the explicit authorization of the "Interim Provisions on the Recruitment of National Civil Servants", and the Wuhu Municipal Personnel Bureau had no right to review normative documents formulated by superior authorities. Moreover, the specific administrative actions of the Wuhu Municipal Personnel Bureau did not infringe on any of Zhang Xianzhu's rights, but he was eliminated because of his unqualified physical condition. The plaintiff, Zhang Xianzhu, was disqualified from employment due to physical disqualification. This was a normal administrative act taken by the Wuhu Municipal Personnel Bureau in accordance with the normative documents on the recruitment of civil servants. The decision to determine that the plaintiff was physically unqualified was made by qualified hospital medical staff, not the defendant. The defendant had no right to change the hospital's medical examination conclusion. The plaintiff's request has no legal basis and requests the court to uphold the defendant's specific administrative actions in accordance with the law.

This court believes that when national administrative agencies recruit civil servants, it is necessary for the personnel department to formulate certain standards. As the comprehensive management department of national civil servants, the Ministry of National Personnel formulates these standards in accordance with the "Interim Regulations on National Civil Servants" of the State Council. The departmental regulations "Interim Regulations on the Recruitment of National Civil Servants" were promulgated. The Anhui Provincial Department of Personnel and the Department of Health jointly exercised their powers in accordance with the authorized purpose and scope of the regulations to formulate the "Anhui Provincial Implementation Rules for the Physical Examination for the Recruitment of National Civil Servants (Trial)". This specification The sexual document does not conflict with higher-level laws, that is, it does not break through the scope set by higher-level laws, nor does it break through the prohibitive provisions of higher-level laws. In accordance with the "About the Implementation of the Administrative Procedure Law of the People's Republic of China" Paragraph 2 of Article 62 of "Explanation of Issues" stipulates that the "Implementation Rules for Physical Examination for National Civil Servants Recruitment in Anhui Province (Trial)" is a legal and effective normative document and can be referred to and applied. The defendant Wuhu Municipal Personnel Bureau entrusted the No. 86 Hospital of the People's Liberation Army to conduct physical examinations on candidates in accordance with the "Anhui Province National Civil Servant Recruitment Physical Examination Implementation Rules (Trial)", which should be an administrative entrustment relationship, and the consequences of the acts committed by the entrusted person should be determined by the entrusted party. People bear it. Because the unqualified conclusion of the physical examination of the 86th Hospital of the People's Liberation Army violated the provisions of the "Implementation Rules for Physical Examination for the Recruitment of National Civil Servants in Anhui Province (Trial)", the Wuhu Municipal Personnel Bureau, as the administrative agency in charge of recruiting national civil servants, only relied on the physical examination of the 86th Hospital of the People's Liberation Army. In conclusion, it was determined that the plaintiff Zhang Xianzhu failed the physical examination and the specific administrative action of not allowing the plaintiff Zhang Xianzhu to enter the assessment process lacked factual evidence. According to Article 54, 2 of the Administrative Litigation Law of the People's Republic of China, The provisions of items 1 and 2 of item 1 should be revoked. However, given that the recruitment of national civil servants in Anhui Province in 2003 has ended, and the position that Zhang Xianzhu applied for has been entered by the candidate who ranked second in the professional examination, the The specific administrative act being sued does not have revocable content. According to the provisions of Article 56, Item 4 of the Supreme People's Court's "Interpretations on Several Issues Concerning the Implementation of the Administrative Litigation Law of the People's Republic of China", the plaintiff's other lawsuits The request should not be supported. In summary, based on the provisions of Article 57, Paragraph 2, Item 2 of the Supreme People's Court's "Interpretations on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China", the judgment is as follows:

There is insufficient main evidence to confirm that the defendant Wuhu Municipal Personnel Bureau made specific administrative actions to disqualify the plaintiff Zhang Xianzhu from entering the assessment process during the recruitment process of national civil servants in Anhui Province in 2003.

The litigation fee of this case is 100 yuan, which shall be borne by the defendant Wuhu Municipal Personnel Bureau.

If you are dissatisfied with this judgment, you can submit an appeal to this court within 15 days from the date of delivery of the judgment, and submit copies according to the number of opposing parties, and appeal to the Wuhu Intermediate People's Court of Anhui Province.

Presiding Judge Zheng Wenbin

Judge Shen Shiling

Acting Judge Xuan Zhengguo

April 2, 2004

Secretary Wang Yafei