Transgender employee compensated for unlawful dismissal

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In two separate trials, the Yunyan District People’s Court in Guiyang City, Guizhou province awarded a transgender employee statutory damages for unlawful termination and emotional damages for infringement of personality rights.

In April 2015, the employee was terminated after just one week at a new job with a health check company. The employer instructed a co-worker to inform the employee of the termination. While informing the employee of her termination, the co-worker also told the employee that the company’s HR manager thought the employee’s wardrobe choices were “incompatible” with the company’s image. The employee felt this statement demonstrated discrimination against her transgender identity and was the real reason for the termination. The employee filed a labour dispute case with the local court claiming unlawful termination.

In the labour dispute case, the employer denied responsibility for the discriminatory comments and insisted the reason for the termination was that the employee failed to meet the conditions of employment during the probationary period. The court found that the employer lacked evidence to prove dismissal on these grounds, ruled the termination unlawful and ordered statutory damages. However, in its ruling, the court rejected the employee’s allegation that the termination constituted transgender discrimination because the co-worker’s comments were insufficient to prove the discrimination.

In December 2016, the employee filed a tort claim with the same court claiming the health check company infringed her personality rights by violating her equal employment opportunity rights. During the case, the court shifted the burden of proof to the employer by reasoning that only the employer could know the genuine reason for the termination. The court considered its previous ruling of unlawful termination when ruling that the employer failed to prove reasonable termination grounds in the current tort claim. Therefore, the court ruled that the company had infringed the employee’s personality rights by violating her equal employment opportunity rights and awarded RMB2,000 to the employee for emotional damages.

Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Danian Zhang (Shanghai) at: danian.zhang@bakermckenzie.com

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