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Employment discrimination in China
The Constitution of the People’s Republic of China stresses that all citizens are equal and that ethnic minorities, people with religious beliefs, and women are not to be discriminated against in any aspect of civil life, including employment. China has, in addition, numerous laws and government policies designed to promote employment equality. Yet, employment discrimination is pervasive and still widely tolerated, practiced by both private employers and government institutions. Laws and regulations aimed at eliminating employment discrimination are hampered by technical shortcomings, ineffective enforcement and conflicting legislations and government policies that appear to promote, rather than discourage, the continuation of discriminatory practices.
This introduction will provide an overview of the main forms of employment discrimination in China (those based on gender, age, social origin, health status and disability, religion and ethnicity), an analysis of the current legal protections available to workers and an assessment of the legal and policy reforms that are still needed to adequately protect workers from employment discrimination.
Discrimination against women is commonplace in China and often starts before they even enter the workforce. The practice of gender-based quotas and enrolment policies is widespread, often resulting in women having to score much higher than men in entrance examinations for certain majors, especially at institutions concerned with the military or police training. While China’s Education Ministry defends the practice on the basis of “national interests,” the practice often extends to majors with little relation to gender, such as languages and sciences. Explanations given by university administrators often amount to nothing more than paternalistic judgments about the roles women are best suited to.
After graduation, women usually have a more difficult time than men in finding jobs, especially in fields related to science and technology. However gender discrimination is even more prolific in lower-skilled positions. In a study of more than one million Internet job postings, researchers found that overall more than ten percent of ads expressed a gender preference; but for jobs that did not require a college education, 23 percent of ads expressed a gender preference. These gender preferences tend to reflect and reinforce socially constructed norms, as clearly exemplified by the photographic slideshow of the “beautiful scenery” at 18th Communist Party Congress in Beijing in November 2012. In general, men are preferred for white-collar managerial jobs while women are preferred in sales and clerical positions. Moreover, positions that require interaction with the public, such as hostesses, usually have maximum age and physical appearance requirements as well.
Even when job advertisements do not specify gender requirements, employers often make their hiring preference clear in other ways, such as in oft-stated beliefs that female factory workers are easier to control and discipline.
Women workers at a kitchen utensil factory in Guangdong.
Employers often ask prospective female workers about their family plans, out of concern that female workers will leave their jobs after marriage, for maternity leave, or to raise their families. Employers often require female workers to agree to illegal contract conditions, requiring them to undergo pregnancy tests or adhere to stringent conditions regarding plans for marriage and pregnancy.
Certain Chinese laws and regulations, designed to “protect” women workers can actually have the effect of institutionalizing gender discrimination. The Labour Law and the Regulations on the Scope of Prohibited Labour for Female Workers both explicitly bar women from many physically demanding jobs, such as logging, underground mining, setting up power lines or scaffolding. The Regulations establish further prohibitions for jobs that may not be done by menstruating, pregnant or lactating women. Rather than imposing physical ability tests, such blanket prohibitions simply enforce beliefs that women are weak and unsuitable for certain jobs.
Many studies have revealed that sexual harassment is a common problem within the workplace although formal complaints and lawsuits are still rare. The first successful sexual harassment lawsuit in Guangzhou, for example, was in 2009 when a 28-year-old office worker, Ms. A, was fired after complaining about blatant sexual harassment by her Japanese boss, which was even caught on camera during an office party. The court ordered the defendant to make a formal apology and pay Ms. A 3,000 yuan in compensation for the mental anguish caused by the incident.
Discrimination based on age
Age discrimination often goes hand in hand with gender discrimination, especially in hiring practices. Age requirements in employment advertising are extremely prevalent. (See photo below). In low-level manufacturing jobs, employers often restrict hiring to workers under the age of 30 or even younger, refusing to re-hire them as they become older, out of a belief that younger workers are cheaper and more productive.
Recruitment ad for an electronics factory in Dongguan specifying 20- to 30-years-old age limit.
The campaign group, the Equity and Justice Initiative, filed a complaint against the Shenzhen Securities Exchange in October 2011 after it posted an advertisement for management, legal, accounting and computing professionals that stipulated applicants should be under 28 years old.
Although the Exchange later rescinded its policy, age discrimination is still rampant in many white collar professions including the civil service: one study of 9,762 employment postings for civil service jobs found every single one mentioned age restrictions. And another study of 29,639 job advertisements found that 85.6 percent of the positions had age restrictions.
China’s uneven retirement ages may also contribute to the prevalence of age discrimination in employment. For government employees, including employees at state-owned enterprises, mandatory retirement policies require men to retire at age 60, and women at either 55 (if classified as a “cadre”) or 50 (if “worker”). These differentials perpetuate perceptions that women are physically unable to work for as long as men and discourage employers from hiring women for long-term positions. And since pensions are tied to wages earned and years worked, a female retiree will almost certainly have a smaller pension than a male retiree in the same position. And while retirement is not mandatory in private employment, the same dynamics are likely to come into play.
Discrimination based on the household registration system
Migrant workers in China face employment discrimination largely stemming from the government’s household registration system, also known as the hukou (户口) system. Set up over half a century ago to control internal migration, the hukou system institutionalizes discrimination against workers from rural areas. Outside their home province, migrant workers face numerous institutional hurdles compared to local residents, such as tougher standards for entrance into universities, requirements for residential permits, limited access to health and social services, including schools for their children and, in some cases, restrictions on purchase of homes and vehicles.
Migrant workers often receive less pay for the same work as urban residents, and are more likely to be denied their due benefits and end up in labour disputes over unpaid wages or unpaid overtime. Many of the issues faced by migrant workers stem from the fact that they are often relegated to low-skilled positions in which exploitation of the vulnerable is rife. Studies indicate that many of the labour issues faced by migrant workers stem from unequal urban and rural development, especially in education: Rural residents have fewer education opportunities than urban residents and therefore can often only find poorly paid and often dangerous jobs where they are more likely to be subject to exploitation. And even when rural residents are able to obtain higher education, they still face discrimination when seeking jobs after graduation. A 2010 survey of employers of college graduates found that nearly 60 percent of them set specific hukou requirements for prospective employees.
For a larger overview of the discrimination faced by migrant workers China, see the migrant workers and rural and urban disparity sections of the Resource Centre, as well as CLB’s special report on the children of migrant workers.
As in many other countries, men and women with mental disabilities routinely face often insurmountable obstacles in the workplace. However, a particularly serious problem in China is the kidnapping and trafficking of vulnerable individuals into forced labour in remote locations, often for years on end.
Probably the most notorious example of this kind of forced labour was the “black kilns” scandal of 2007 in which hundreds of children and adults were forced to work in brick kilns in the central provinces of Shanxi and Henan. But similar cases have been reported in Chinese media on a regular basis since. Indeed many such cases only come to light after they have been exposed by investigative journalists. In one such case in 2011, a reporter posed as a mentally disabled person at a train station for just two days before being kidnapped and sold to a factory for 500 yuan. In another case, a reporter revealed that around a dozen workers have been held in a state of indentured servitude in a building materials factory in Xinjiang for around three years, working long hours in appalling conditions for no pay. They were beaten if they tried to escape and given the same food as the dogs the boss had. The workers, eight of whom reportedly had mental disabilities, had been sold to the factory by an organization called the “Beggars Adoption Agency” of Qu county in Sichuan. The agreement specified that the factory should pay the agency a one-off fee of 9,000 yuan, plus 300 yuan per month per worker and compensate the agency 1,000 yuan for each worker “lost”. The workers themselves did not receive any money.
For workers with physical disabilities, including limited sight, hearing and mobility, finding any form of employment can be difficult. A 2007 survey of 3,454 university graduate job seekers found that 22 percent of respondents were rejected for positions due to physical disabilities. A 2010 report by the China Disabled Persons' Federation found that only 34 percent of urban and 49 percent of rural disabled individuals with the ability to care for themselves were actually employed.
The unemployment situation of the disabled in China was so serious in 2007 that the government Regulations of Employment for People with Disabilities mandated that all enterprises reserve at least 1.5 percent of their workforce positions for disabled workers, or otherwise pay into an employment guarantee fund for the disabled.
However, it seems this regulation is widely ignored, even by local government departments. A survey of government departments in 30 Chinese cities by the anti-discrimination pressure group Yirenping found that the highest percentage of disabled employees in any government department was just 0.39 percent, with some departments having as low a percentage as 0.02 percent. Nor is it certain that money going into employment guarantee funds is being used for the primary purpose of providing employment services to the unemployed and disabled. Reports indicate that corruption and misuse of funds are rampant. An audit of the funds used in Zhejiang found that only 13.7 percent of the funds were actually used for professional training and employment services for the disabled; in one Hubei county, 80 percent of funds were used to pay staff benefits and administrative expenditures.
Discrimination against workers with HBV and HIV
With a population in excess of 120 million, those living with the virus that causes Hepatitis B (HBV) constitute a considerable proportion of China’s population. Yet they still face day-to-day discrimination in employment. Although HBV and HIV (the virus that causes AIDS) can only be spread through the direct exchange of bodily fluids, HBV is widely believed in China to be a contagious disease that can spread through daily contact at school or in the workplace. As such, HBV and HIV carriers are often subject to overly broad regulations and policies that prohibit individuals with “infectious diseases” from industries, jobs or schools, even though their health status would pose no risk to others. Employers routinely screen prospective employees with HBV tests as a condition of employment. According to a 2011 survey of 180 state-owned enterprises, 61 percent of enterprises conduct screening for HBV and 35 percent of the enterprises stated that they would reject job candidates with HBV.
The discrimination against people with HBV probably stems from a fear of Hepatitis A, which can be fatal and is spread much more easily than Hepatitis B, and a lack of public knowledge regarding the distinction between the two Hepatitis viruses. This lack of knowledge is made worse by the flood of scaremongering advertisements for “cures” for and products providing protection from HBV. A similar lack of public education exists regarding HIV: even a Peking University professor has argued that HIV positive individuals should not be teachers since “the immunity of students under 18 may not be strong enough to resist the virus.” A 2007 study showed that 48.8 percent of the Chinese population and 65 percent of employers surveyed believed that people with HIV do not deserve equal employment rights.
Ethnic and religious discrimination
Ethnic tensions have persisted since the founding of the Peoples Republic (PRC) in 1949 and have been exacerbated in the last three decades by the steady migration of ethnic Han Chinese into Uighur and Tibetan regions of China in particular. In an attempt to ease ethnic tensions, the Chinese government has introduced a range of “positive discrimination” measures for ethnic minorities including the allocation of development funds to minority areas, the relaxation of family planning rules and easier university entrance exams for minorities. These measures have however engendered resentment among the Han majority and have done little to ease employment discrimination against minorities. In a 2011 study of 10,796 advertised job positions, researchers found significant discrimination against job applicants with ethnically distinct names. Only about half of the companies contacted had treated applicants equally regardless of ethnicity. Even in government departments, discrimination continues to be tolerated. Local governments sometimes specify ethnic requirements for departmental positions. There are also restrictions on religious practices amongst civil servants and employees, one of the more egregious being forbidding civil servants from fasting and observing Ramadan.
Ethnic and religious minorities routinely face discrimination in the service sector, especially in low-level retail and restaurant positions where employers prefer to hire staff who appear more “familiar” and less “threatening” to Han customers. Very often minorities are effectively restricted to working within their own communities or in ethnically- themed restaurants.
In manufacturing, factories sometimes hire groups of ethnic minority workers en masse in order to make up for labour shortages in their local area. However, ethnic tensions between these workers and local Hans, who often believe the minority workers are getting a better deal, can lead to violent outbursts. Perhaps the best known example of such violence occurred in June 2009 in a toy factory in Shaoguan, northern Guangdong. After rumours started to circulate that a Uyghur worker had raped a Han woman, a mass brawl erupted among thousands of workers, leaving two dead. In response, the employer removed all Uyghur workers to another factory in a small industrial park, 15 kilometres outside the city.
After the riot, a banner outside the Xuri electronics plant in Shaoguan proclaims "hand in hand bring about peace together, hearts beating as one realize harmony."
Other major forms of employment discrimination exist in China, many that are not covered by specific laws and regulations. In the one-Party state, discrimination against individuals based on political belief is widespread and institutionalized, particularly in civil service and in state-owned enterprises: Party membership is often a requirement.
Discrimination based on physical appearance and height is also fairly common. One study showed that roughly eight percent of job advertisements listed height requirements and or other discriminatory standards for physical appearance. Even without advertised appearance requirements, the common practice of requiring photographs in job applications allows employers to easily discriminate against individuals based on appearance.
Homosexuality was officially still a crime up to 1997 and was only removed from China’s official list of mental disorders in 2001. Although there is still a stigma and considerable misunderstanding associated with homosexuality in China, most employers operate what could best be described as a “don’t ask don’t tell” policy. If their sexuality is made public however, homosexual employees can face reprisals. One survey found that about a quarter of the respondents whose sexuality had been revealed at their workplace had been fired or forced to resign as a result. It is important to note that there are no specific laws or regulations that protect against employment discrimination on the basis of sexual orientation.
Laws and regulations related to employment discrimination
Prior to 2008, the anti-discrimination legal landscape in China could best be described as aspirational and inadequate. The Chinese Constitution and several statutes stressed equality of employment but provided little of use in substantively combating discrimination. The 1990 Law to Protect Disabled Persons extended employment discrimination protection to the disabled, and the 1992 Law on the Protection of Rights and Interests of Women provided further details on the rights women were entitled to in the workplace. But the landmark 1994 Labour Law essentially reiterated constitutional articles that employment discrimination based on race, ethnicity, gender, or religious belief is not allowed.
The vagueness of the laws and a lack of implementing regulations meant that many courts and arbitration committees refused to hear employment discrimination cases, especially if the discrimination occurred prior to the establishment of a labour relationship between the plaintiff and the employer.
Growing public concern and citizen activism over employment discrimination in the mid-2000s however led to the adoption of a number of regulations and policies designed to address particular issues of concern:
- A 2005 amendment to the Law on the Protection of Rights and Interests of Women added a prohibition of sexual harassment.
- 2005 regulations by the Ministry of Personnel established that people with HBV should not be prohibited from civil service positions if tests can show they are not contagious.
- The 2006 ratification of the International Labour Organization’s Convention on Discrimination in Employment and Occupation committed the government to adopt broad policies against employment discrimination.
- The 2007 Regulation of Employment for People with Disabilities required all enterprises to set aside at least 1.5 percent of their workforce for disabled workers.
- In addition to multiple measures to relax hukou restrictions, the State Council issued directives in 2003 and 2006 urging local governments to eliminate discriminatory restrictions on migrant workers.
- A 2007 Opinion by the Ministry of Labour and Social Security declared that it was illegal to discriminate against people with HBV in employment, except for jobs where laws specifically excluded them.
Then in 2008, the government implemented the Employment Promotion Law, which was both an attempt to solve some of the deficiencies in existing anti-discrimination legislation and establish a broad statement of principle on employment equality. The key advantage of the new law, however, was that it provided victims of discrimination with the means to seek legal redress. The law clearly states that employment discrimination is within the purview of courts, and that workers are entitled to initiate civil lawsuits when faced with discrimination. The law adopts a general anti-discrimination policy, calling on all levels of government to work to eliminate discriminatory employment practices. It expands coverage of the groups specifically mentioned as protected from employment discrimination to include those with infectious disease and migrant workers.
At the same time, the Ministry of Labour and Social Security issued implementing regulations which largely complemented the new law. The regulations prohibited employers from using marriage and maternity conditions in employment contracts, using HBV status as a condition for employment, and discriminating against migrant workers in employment. Unlike previous laws and regulations, which declared prohibitions without penalty for violations, the new regulations established that a 1,000 yuan fine may be imposed on employers for violations of the regulations.
The establishment of a mechanism for legal redress has primarily been a boon for people with HBV. Studies indicate that over 70 percent of HBV discrimination cases are now accepted in the courts, with more than 200 reported cases by 2011. Prior to the law’s implementation, the anti-discrimination group Yirenping brought less than 20 cases per year; that number immediately rose to 70-80 cases per year after implementation. In addition to bringing more cases before the courts, the stronger laws and greater willingness of courts to accept these cases has also given workers greater leverage and bargaining power in out-of-court settlements.
Thus far however, it seems that the implementation of the Employment Promotion Law has done little for the other groups it is supposed to protect. HIV discrimination cases, for example, are still routinely rejected by the courts, and the two reported HIV cases that have been accepted both resulted in the plaintiff losing, despite their cases bearing several similarities to HBV cases.
As of the time of writing this report, there do not appear to have been any anti-discrimination lawsuits filed in regard to ethnicity or rural migrant status, and it was not until July 2012, four years after the enactment of the Employment Promotion Law, that a lawsuit was filed over gender discrimination. One scholar has argued that despite high profile cases and enactment of new laws, employment discrimination cases are still rare, unpopular, and politically sensitive.
- The law relies on already under-staffed and over-worked local labour bureaus to oversee and implement anti-discriminatory policies and regulations.
- Since prospective employees are not actually employees under the law, cases of employment discrimination in hiring are not subject to the labour dispute arbitration system and victims must use the formal court process, which can cost a lot more and can take much longer to complete proceedings.
- Fines for violations of the Employment Promotion Law are hopelessly inadequate. A 1,000 yuan fine for conducting HBV screening does not deter employers from conducting such tests. Moreover, employers can simply require individuals to sign documents indicating that they took the test “voluntarily.”
A "voluntary agreement" to undertake a HBV test. Courtesy Yirenping.
- The law states that those who have been discriminated against are entitled to initiate legal proceedings, but it offers no explanation to the courts on what standards are to be followed, what types of compensation should be paid to victims and what punishments should be meted out violators. Chinese courts are known to be unwilling to hear cases without regulations or laws that adequately explain how cases should be tried.
- The law remains limited to protecting against five types employment discrimination: gender, ethnicity, disability, individuals with infectious diseases, and rural migrants. The lack of coverage for other types of discrimination, such as age, religion, height and sexuality, all of which remain commonplace in China, also limits the law’s effectiveness.
The Employment Promotion Law was heralded as a significant development in the fight against employment discrimination in China, but its effects on the ground have been much more muted. Employment discrimination is clearly still widespread and the enforcement of anti-discrimination policies remains wanting, despite some progress.
However, the enactment of such laws in recent years, together with civil society activism by organizations such as Yirenping and the Equity and Justice Initiative in Shenzhen, have provided a platform for greater public awareness of discriminatory employment practices and the need for further reform. The importance of civil society groups in pushing for greater tolerance and equality of opportunity in Chinese society cannot be ignored, particularly in their use of new laws to sue and publicly shame discriminating employers. The higher exposure of employers to lawsuits and the negative publicity generated by them has led many to adopt less discriminatory practices and has encouraged local governments to take discrimination more seriously.
Despite the improvements outlined above, additional reforms are still needed if the fight against discrimination is to be taken to the next level. China Labour Bulletin recommends the following:
- Expand the coverage of anti-discrimination to include widespread forms of employment discrimination such as those based on age, height and physical appearance, personal beliefs and sexuality.
- Authorize labour dispute arbitration committees to take on and adjudicate in employment discrimination cases, thereby reducing the time and costs currently borne by litigants in the civil courts.
- Increase the fines levied on employers from the current level of 1,000 yuan per instance to at least 10,000 yuan per instance.
- Clarify the court procedures to be followed in anti-discrimination cases and specify the forms of compensation available to victims and the punishments required for violators.
- Establish a comprehensive government body tasked specifically with tackling employment discrimination, similar to the Equal Employment Opportunity Commission in the United States. Such a bureau would be charged with implementing anti-discrimination laws, and have a formal system to investigate and mediate complaints of employment discrimination, and offer to sue employers on behalf of victims.
The implementation of the above measures would demonstrate to employers and civil society that the Chinese government is serious about equality in the workplace and is willing to provide the necessary resources to local government departments, the courts and labour arbitration committees to combat employment discrimination.