Anti-discrimination Law in the Workplace

Xie, Zengyi

doi:10.1007/978-3-662-46929-3_3

Zengyi Xie⁴

Part of the book series: Research Series on the Chinese Dream and China’s Development Path ((RSCDCDP))

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Abstract

Equality in the workplace is an important element of the right to equality protected by China’s constitution, and one of the important human rights protected by international human rights covenants and legal documents. In recent years, a trend has emerged in many countries’ labor policies and laws: the increasing importance attached to the protection of the right to equality. For example, the European Union (EU) has adopted a series of directives concerning equal treatment in the workplace and greatly enhanced legislation and enforcement in its Member States. China is not an exception to this global trend. In recent years, China has made much effort in promoting equality by ratifying the related United Nations (UN) and International Labor Organization (ILO) conventions and enacting domestic legislation. Ratifying the two fundamental labor international conventions on equal treatment, namely the ILO Equal Remuneration Convention, 1951 (No. 100) and the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) would impact greatly on Chinese domestic legislation and enforcement. This chapter examines new developments in Chinese anti-discrimination law in recent years with a focus on progress and challenges in legislating and enforcing the law.

This chapter was first published with the title of “New Developments in Anti-discrimination in the workplace in China: Law and Practice” in Ulla Liukkunen and Chen Yifeng (eds.): “China and ILO Fundamental Principles and Rights at Work” (Bulletin of Comparative Labour Relations), Kluwer Law International, 2014, pp. 143–162. Few changes have been made to the original chapter when it was included in this book.

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Notes

1.
Constitution of The People’s Republic of China, Art. 33 (1982).
2.
Such covenants and documents include the Universal Declaration of Human Rights, GA Res. 217(III), UNGAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) and the International Covenant on Economic, Social and Cultural Rights, GA Res. 2200A(XXI), UNGAOR, Supp. No. 16 at 49, UN Doc. A/6316 (1966) (hereinafter International Covenant on Economic, Social and Cultural Rights).
3.
Directives concerning equal treatment in the workplace include Council Directive No. 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (29 Jun. 2000), OJ L 180, 19/07/2000 pp. 22–26; Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (27 Nov. 2000), OJ L 303, 02/12/2000 pp. 16–22; and Directive 2006/54/EC of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (5 Jul. 2006), OJ L 204, 26/07/2006 pp. 23–36.
4.
China ratified the International Covenant on Economic, Social and Cultural Rights on 27 Mar. 2001, the ILO Convention on Equal Remuneration, 1951 (No. 100) on 2 Nov. 1990 and the ILO Convention on Discrimination (Employment and Occupation), 1958 (No. 111) on 12 Jan. 2006.
5.
Adopted 29 Jun. 1951, entry into force 23 May 1953.
6.
Adopted 25 Jun. 1958, entry into force 15 Jun. 1960.
7.
A remarkable achievement in this respect is adoption of the Employment Promotion Law, adopted 30 Aug. 2007, entry into force 1 Jan. 2008.
8.
Dingjian Cai, Employment Discrimination in China: Current Conditions and Anti-discrimination Strategies, China Social Science Press, 2007, p. 520. Directed by Prof. Cai, the Institution of Constitutionalism Study at the China University of Political Science and Law carried out a survey in May 2006 and October 2006, in ten cities in China. Of the 3,500 questionnaires issued, 3,454 valid answers were received. For the total survey result, see 505–547.
9.
Ibid. at 512–519.
10.
Mark A. Rothstein et al., Employment Law Hornbook, 3d ed., West, 2005, p. 123.
11.
Deborah J. Lockton, Employment Law, 5th ed., Palgrave Macmillan, 2006, p. 131.
12.
According to official statistics for 2007–2011, the recorded unemployment rate was 4.0–4.3 %: Ministry of Human Resources and Social Security of the People’s Republic of China, Bulletin of Statistics for the Development of Human Resources and Social Security in China (Beijing 2011). As the unemployment rate in the Bulletin is only based on job losses registered in urban areas, the actual rate for the whole population should be higher.
13.
Jiefeng Lu, Employment Discrimination in China: The Current Situation and Principle Challenges, 32 Hamline L. Rev. 133, 172 (2009).
14.
Dingjian Cai, Employment Discrimination in China: Current Conditions and Anti-discrimination Strategies, China Social Science Press, 2007, p. 543.
15.
Ibid. at 518.
16.
The Labor Law, adopted 5 Jul. 1994, entry in force 1 Jan. 1995, only contains general principles of equality. The law containing more specific rules on anti-discrimination, namely the Employment Promotion Law, was adopted in 2007.
17.
Ministry of Human Resources and Social Security of the People’s Republic of China, Bulletin of Statistics for the Development of Human Resources and Social Security in China of 2013.
18.
Na Lan, Is There New Hope in Labor Rights Protection for Chinese Migrant Workers?, 10 Asian-Pac. L. & Pol’y J. 482, 483 (2009), quoted in Crystal Roberts, Student Author, Far from a Harmonious Society: Employment Discrimination in China, 52 Santa Clara L. Rev. 1531, 1556 (2012).
19.
Na Lan, ibid. at 493, quoted in Roberts, ibid. at 1555–1556.
20.
A survey by the Institute of Constitutionalism in the China University of Political Science and Law in 2006 says the most serious discrimination in people’s concept is health discrimination: Dingjian Cai, Employment Discrimination in China: Current Conditions and Anti-discrimination Strategies, China Social Sciences Press, 2007, p. 535.
21.
The number of agency workers is usually not counted in the total number of employees of enterprises.
22.
National People’s Congress of the People’s Republic of China, Explanations on Draft Amendment to the Labor Contract Law of the PRC, in Chinese (available at http://www.npc.gov.cn/npc/xinwen/lfgz/flca/2012-07/06/content_1729107.htm) (accessed 5 Feb. 2013).
23.
Adopted 3 Apr. 1992, entry into force 1 Oct. 1992, amended 28 Aug. 2005; see Chapter IV.
24.
Adopted 28 Dec. 1990, entry into force 15 May 1991, amended 28 Aug. 2008; see Chapter IV.
25.
Law on Protection of Rights and Interests of Women, Art. 52 (1992); Law on Protection of Persons with Disabilities, Art. 64 (1990).
26.
Employment Promotion Law, Art. 3 (2007).
27.
Employment Promotion Law, Art. 31 (2007).
28.
Labor Law, Art. 12 (1994); Law on Protection of Persons with Disabilities, Art. 3 (1990); Employment Promotion Law, Art. 30, 31 (2007).
29.
Employment Promotion Law, Art. 62 (2007).
30.
Employment Promotion Law, Art. 68 (2007).
31.
Crystal Roberts, Student Author, Far from a Harmonious Society: Employment Discrimination in China, 52 Santa Clara L. Rev. 1531 (2012), at 1552.
32.
Ministry of Labor and Social Security of the People’s Republic of China, Provisions on Employment Services and Employment Management, Order No. 28, Arts 4, 5, 9, 16, 18, 19 and 20 (2007).
33.
Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643, 680 (2011).
34.
Constitution of The People’s Republic of China, Art. 5 (1982).
35.
Ibid. at Art. 33.
36.
For e.g., in 2006, an important policy document was adopted by the Central Committee of CPC in China. The document was CPC Central Committee on the Decision on Certain Key Issues Concerning Building a Harmonious Socialist Society. For more information on the policy document in Chinese, see Xinhua News Agency, http://cpc.people.com.cn/GB/64093/64094/4932424.html.
37.
In 2007, the Labor Contract Law (adopted 29 Jun. 2007, entry into force 1 Jan. 2008) and the Labor Dispute Mediation and Arbitration Law (adopted 29 Dec. 2007, entry into force 1 May 2008) were also passed by the National People’s Congress.
38.
As anti-discrimination law is a relatively new area in China, many victims of discrimination, and supporting agencies, publicize cases to raise public awareness.
39.
State Council of The People’s Republic of China, Regulation on Labor and Social Security Inspection Regulations, No. 423, Art. 11 (2004).
40.
Ronald C. Brown, China’s Employment Discrimination Law During Economic Transition, 19 Colum. J. Asian L. 361, 415 (2006). See also State Council of The People’s Republic of China, ibid. at Art. 11 (2004).
41.
See Ministry of Human Resources and Social Security of the People’s Republic of China, Bulletin of Statistics for the Development of Human Resources and Social Security in China of 2011.
42.
Ibid.
43.
In China, according to the Labor Law and Labor Dispute Mediation and Arbitration Law, all labor cases should be brought to arbitration commissions first and if the parties are dissatisfied with the arbitration, they can appeal the cases to courts.
44.
Labor Dispute Mediation and Arbitration Law, Art. 5 (2007).
45.
Ibid. at Art. 2 (2007).
46.
Employment Promotion Law, Art. 68 (2007).
47.
An Interpretation of the Employment Promotion Law in the PRC 179 (Chunying Xin ed., Law Press 2007).
48.
In China, debate is lively and ongoing on the labor dispute resolution system. Some argue that the compulsory arbitration procedure and the court procedure are long and time-consuming and that mandatory arbitration should be abolished. In the view of the author, the arbitration system has its historical background and this procedure will greatly reduce the cases brought to courts. The difference in the dispute resolution system between discrimination cases and other labor cases is another issue and needs to be discussed further.
49.
Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643 (2011), at 692.
50.
See Lu Lin, Sex Discrimination in Employment Rights’ Cases Takes a Big Step, People’s Daily Online, 9 Aug. 2012 (available in Chinese at http://edu.people.com.cn/n/2012/0809/c1053-18704935.html) (accessed 1 Aug. 2013).
51.
Dingjian Cai, Employment Discrimination in China: Current Conditions and Anti-discrimination Strategies, China Social Science Press, 2007, p. 513.
52.
2005, Labor Dispute Arbitration Committee of Pingdingshan City, No. 86; 2006 Zhan, Civil, First, No. 31.
53.
For more information about the retirement age, see State Council of the PRC, Interim Provisions on Retirement and Resignation of Workers Rectified by the Standing Committee of the National People’s Congress (3 Jun. 1978).
54.
2011, Chaoyang District, Civil, First, No. 04594.
55.
Labor Law, Art. 29 (1994); Labor Contract Law, Art. 42 (2007).
56.
2009, Hangjiang, Civil, First, No. 1981.
57.
In May 2007, the Ministry of Labor and Social Security issued its Opinion on Safeguarding the Employment Rights of Hepatitis B Virus Carriers. In February 2010, the Ministry of Human Resources and Social Security, the Ministry of Education and the Ministry of Health jointly issued the Notice on Further Regulating Health Examination Items for Education Enrolment and Employment, Protecting the Rights of Hepatitis B Virus Carriers in Education Enrolment and Employment.
58.
Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643 (2011), at 681.
59.
Ministry of Human Resource and Social Security, the Ministry of Education and the Ministry of Health of the PRC, Notice on Further Regulating Health Examination Items for Education Enrolment and Employment, Protecting the Rights of Hepatitis B Virus Carriers in Education Enrolment and Employment (2010).
60.
2011, Yi, Administrative, Final, No. 0022.
61.
State Council of the PRC, Regulation on HIV Prevention and Treatment, No. 457, Art. 3 (29 Jan. 2006).
62.
2010, Foshan, Intermediate, Administrative, Final, No. 381.
63.
See Xinhuanet.com, The Trial of the First Case of Disability Discrimination in Civil Servant Exam Begins and Application of Law Becomes the Focus, 7 Jun. 2012 (available in Chinese at http://news.xinhuanet.com/legal/2012-06/07/c_123246340.htm) (accessed 2 Aug. 2013).
64.
Law on the Protection of Persons with Disabilities, Art. 38 (1990).
65.
Ibid. at Art. 38.
66.
2002 Wuhouhang, First, No. 3.
67.
As the defendant in this case was a branch of the People’s Bank of China, which is the central bank, the Administrative Litigation Law (1989) was applied in the case.
68.
2005, Second Intermediate, Administrative, First, No. 578.
69.
Jiefeng Lu, Curb Your Enthusiasm: A Note on Employment Discrimination Lawsuits in China, 10 Rich. J. Global L. & Bus. 211, 214 (2010–2011).
70.
Ibid. at 220–221.
71.
Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643 (2011), at 697.
72.
See Supreme People’s Court of the PRC, The Provisions on the Causes of Action of Civil Cases (issued in 2007 and revised in 2011).
73.
Crystal Roberts, Student Author, Far from a Harmonious Society: Employment Discrimination in China, 52 Santa Clara L. Rev. 1531 (2012), at 1555.
74.
Shijian Yang, The Ways and Reasons of Courts in Handling Employment Discrimination Cases, in “Theory and Practice of Antidiscrimination in the Workplace” 100–101 (Xiaonan Liu ed., Law Press 2012).
75.
So far, there are no accurate numbers of caseloads handled by the courts.
76.
Wei Zhou, From Height to Gene: The Legal Development of Chinese Antidiscrimination in “Theory and Practice of Antidiscrimination in the Workplace” (Xiaonan Liu ed., Law Press 2012), p. 18.
77.
Ibid. at 19–20.
78.
In a health discrimination case in 2008 handled by the Chaoyang District Court in Beijing, the court ordered the defendant to make an apology to the plaintiff and pay compensation of CNY 17,000 for economic loss, and CNY 2000 for mental suffering: Wei Zhou, From Height to Gene: The Legal Development of Chinese Antidiscrimination in “Theory and Practice of Antidiscrimination in the Workplace” (Xiaonan Liu ed., Law Press 2012), p. 23.
79.
Under the Labor Law of 1994, labor agencies have broad power to inspect and correct employers’ misconduct concerning workplace rules, working time, wages, work safety, child labor, unfair dismissal, etc. As mentioned at section §9.04[A] above, under the Employment Promotion Law (2007), labor agencies also have jurisdiction over employment discrimination.
80.
Xiaonan Liu, Liwan Wang, Survey Analysis on the Reports on Antidiscrimination in the Workplace Conducted by the Chinese Key Print Media in 2008–2011 in “Theory and Practice of Antidiscrimination in the Workplace” (Xiaonan Liu ed., Law Press 2012), pp. 67–73.
81.
Wei Zhou, From Height to Gene: The Legal Development of Chinese Antidiscrimination in “Theory and Practice of Antidiscrimination in the Workplace” (Xiaonan Liu ed., Law Press 2012), p. 25.
82.
NGOs active in policy advocacy, for example the Institute of Constitutionalism in the Chinese University of Policy Science and Law, published The Suggested Version of an Anti-employment-discrimination Law in 2010: see The Suggested Version of an Anti-employment-discrimination Law and Overseas Experience (Dingjian Cai & Xiaonan Liu eds., Social Sciences Academic Press China 2010).
83.
In recent years, some NGOs have been actively involved in anti-discrimination by providing legal aid to victims, researching and advising the government. These NGOs include, for example, the Institute of Constitutionalism at the China University of Political Science and Law, the Centre of Human Rights of Sichuan University, and the Yirenping Organization in Beijing.
84.
Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643 (2011), at 705.
85.
See Wei Zhou, On the Age Discrimination in Employment of Our Country: An Empirical Study of 300,000 Advertisements for Employees in Shanghai and Chengdu from 1995 to 2005, 3 J. Pol. Sci. & L. Forum 13, 13–21 (2007) referenced in Jiefeng Lu, Employment Discrimination in China: The Current Situation and Principle Challenges, 32 Hamline L. Rev. 133 (2009), at 154.
86.
Sichuan University School of Law, Chinese Courts and Arbitration Bodies Prohibiting Employment Discrimination Case Selection (International Labor Organization Beijing 2011) (in Chinese).
87.
Na Lan, Is There New Hope in Labor Rights Protection for Chinese Migrant Workers?, 10 Asian-Pac. L. & Pol’y J. 482, 483 (2009) referenced in Crystal Roberts, Student Author, Far from a Harmonious Society: Employment Discrimination in China, 52 Santa Clara L. Rev. 1531 (2012), at 1552.
88.
Crystal Roberts, Student Author, Far from a Harmonious Society: Employment Discrimination in China, 52 Santa Clara L. Rev. 1531 (2012), at 1558.
89.
Ronald C. Brown, China’s Employment Discrimination Law During Economic Transition, 19 Colum. J. Asian L. 361 (2006), at 419.
90.
Ronald C. Brown, China’s Employment Discrimination Law During Economic Transition, 19 Colum. J. Asian L. 361 (2006), at 420.
91.
In the transition period to a market economy, due to the short history of anti-discrimination, many employers including some government officials often believe that employers enjoy complete freedom in employment matters without limitation.
92.
Particularly in China, many migrant workers come from rural areas, and once disputes occur it is difficult for them to go through all the judicial procedures and live in the cities where living is much more expensive than rural areas.
93.
Civil Rights Act of 1964, Pub. L. 88–352, Title VII, section 705.
94.
Directive 2000/43/EC, at Art. 13; and Directive 2002/73/EC of the European Parliament and of the Council amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (23 Sep. 2002), OJ L 269, 05/10/2002 pp. 15–20, Art. 8a.
95.
Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643 (2011), at 663–664.
96.
In China, establishing a new independent body at the central level is very difficult in the context of streamlining government organs in the new century.
97.
For e.g., in 2011 courts at different levels in China accepted 6,614,049 first instance civil cases. This number does not include second instance civil cases and criminal and administrative cases. See Supreme People’s Court of the PRC, http://www.court.gov.cn/qwfb/sfsj/index_1.html (accessed 7 Feb. 2013).
98.
Since adoption of the Labor Law in 1994, the Supreme Court has issued four specific opinions on the interpretation of certain rules applicable to labor cases (2001, 2006, 2010 and 2013). None of these covers the issue of discrimination. Actually, such interpretations play in important role in handling cases. Accordingly, it would be very helpful if the Supreme Court could issue a document interpreting the related rules concerning discrimination.

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Institute of Law, Chinese Academy of Social Sciences, Beijing, China
Zengyi Xie

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Xie, Z. (2015). Anti-discrimination Law in the Workplace. In: Labor Law in China. Research Series on the Chinese Dream and China’s Development Path. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46929-3_3

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