Discrimination or absenteeism?

Dangdang.com, one of the largest e-commerce companies in China, lost a lawsuit when a court and an arbitral institution ruled that the enterprise should continue honoring its contract with a former employee, surnamed Gao, who sued the company after being fired for absenteeism.

The case became a hot topic of discussion on social networking sites because the plaintiff’s “absenteeism”, lasting two months, began after he underwent male-to-female gender reassignment surgery.

The court judgment said, “only when we tolerate the diversified ways of living can we have richer cultural concepts”, prompting many to praise the “symbolic” trial while slamming the company’s “discrimination” against Gao, a representative of “the minority”.

However, the crux of the case is not that Gao underwent a rare surgery, but whether Gao’s two-month absence from work constitutes absenteeism. Gao had not applied for sick leave until the day of surgery; he contacted his boss through an online communication tool. Although he received permission for the same, the company had urged Gao to complete the due procedure for seeking leave thereafter, which Gao never did.

After the gender reassignment surgery, Gao exceeded the upper limit of absence from work prescribed in her contract. The company mailed her a return-to-post-soon ultimatum, but Gao claims she never received it as she was not at home.

The court’s ruling shows the judges gave full consideration to the special nature of the surgery Gao underwent to justify her “absenteeism”.

However, the court verdict also said that “Gao should cherish society’s respects and protection of her choice, and should not abuse her rights while defending her own interests”.

If Gao thinks transsexuals should be treated as equal members of society, she should not use her “identity” as an excuse to exempt herself from absenteeism. The court’s judgment should serve as a reminder that all are equal before the law.