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Taking Stock of China's Anti-Discrimination Legislation Backgrounder September, 2020 Taking Stock of China’s Anti-Discrimination Legislation • China’s transition to a socialist market economy in 1978 – resulting in increased competition, especially in the labor market – introduced greater opportunities for discrimination. • Since the 1990s, China has enacted laws and regulations aiming at promoting equality in such fields as employment and health, but also providing greater protection against discrimination towards certain groups. • However, relevant laws and regulations relating to discrimination remain scattered throughout different pieces of legislation. The absence of a comprehensive anti-discrimination law coupled with a lack of sufficient enforcement mechanisms for the regulations in place means the fight against prejudice remains somewhat unqualified. Introduction Equality has been a central principle since the establishment of the People’s Republic of China. Since the end of the 1970s, China has experienced It has featured in all versions of the Chinese a surge in legal acts, as part of a legalization policy Constitution and the state-planned economy aimed at strengthening its legal system and building guaranteed unprecedented access to employment, a modern society. In this vein, codification of its education and health services, though the offset of first civil code, which will become effective in 2021, this has been an extremely controlling and repressive has taken the Chinese legal system a step further in regime. protecting the rights of individuals in various areas such as marriage and property. While equality before In 1978, economic reforms generated considerable the law is reiterated, the absence of the principle growth and alleviated hundreds of millions of of non-discrimination seems rather paradoxical, people out of poverty. However, as the transition to especially in a context of international pressure on a socialist market economy introduced competition, China to address inequalities and discrimination especially on the labor market, opportunities for domestically. Yet, China’s legislation has not been discrimination also increased. In a context of labor completely silent on the issue. oversupply, recruiters in both the public and the 1 Backgrounder September, 2020 recently formed private sectors have explicitly barred The Labor Law (1994), which was certain groups such as women or migrant workers adopted to respond to the recent from hiring processes, especially for high-paying economic and social changes, positions.1 Although the new Constitution in 1982 forbids discrimination on the basis had reiterated the principle of equality, lawmakers of race, ethnicity, religious belief came to the realization that China’s legal and and gender. It refers to the institutional apparatus was not prepared to handle observation of special rules for persons with such practical social consequences.2 disabilities and ethnic minorities and provides further rights for women such as maternity leave, In an attempt to rectify the situation, China has though it also prevents them from engaging in labor- enacted a handful of laws and regulations aimed intensive work.5 at preventing discrimination since the 1990s. This backgrounder takes stock of China’s anti- The Employment Promotion Law discrimination legislation and attempts to answer (2007) extends the coverage of the following questions: What constitutes China’s protected groups to include migrant anti-discrimination regime? Has it been effective workers and carriers of infectious in fighting discrimination? What are its main legal diseases, although some restrictions shortcomings? What social and political challenges are also stated for the latter. Moreover, lie ahead of a more egalitarian and inclusive society? the law provides for workers with the right to engage legal proceedings for employment discrimination Initiating an Anti-Discrimination before the People’s Court and workers whose rights Regime in China have been infringed are eligible for compensation.6 The 1982 Constitution The Employment Service and Employment Management Various sources form China’s Regulations (2008) was issued by anti-discrimination legislation. the Ministry of Labor and Social The 1982 Constitution has Security to complement the newly enshrined the principle of enacted Employment Promotion equality of all citizens before Law. It gives more precision s concerning forbidden the law (Article 33).3 Articles 4, practices such as conditioning women’s employment 36, 48, and 89 also guarantee the rights of ethnic to their marital status and to their pledge to not have minorities, religious freedom and gender equality children within a certain period or using a hepatitis and prohibits discrimination on those grounds.4 B status to screen candidates. It also introduces a 1,000 RMB fine for companies and organizations This principle has been complemented with that are found in violation of the law.7 further pieces of legislation. While there exists no comprehensive non-discrimination law in China, Non-discrimination provisions can be found in the issue has been addressed by specific laws and other areas such as the Compulsory Education State Council regulations concerning various policy Law (2006) and the Advertising Law (1994). fields or disadvantaged groups. Article 29 of the Compulsory Education Law contends that teachers should not discriminate The most developed area is employment law, where among their students. And Article 19 encourages the prohibition of discrimination is explicit and legal integration of persons living with disabilities in the remedies and penalties are provided. general school system.8 Article 7 of the Advertising Law provides that “an advertisement should not 2 Backgrounder September, 2020 feature contents that are discriminative against against women in their equal access to promotion, nationalities, races, religions and sex;” and Article benefits, property and succession.10 The law also 8 specifies that “advertisements should not feature outlaws abandonment and infanticide against female content that is injurious to the physical and mental children, and sex selective abortion is banned under: health of persons living with disabilities”.9 However, relevant laws and regulations have yet to define the The Law on Maternal and Infant behaviors or content that can be discriminatory. Health Care (1994) and the Law on Population and Family In addition, numerous laws and regulations have Planning (2001).11 Moreover, the provided varying degrees of protection against 1992 law provides for legal remedies discrimination towards certain groups, namely in case of violation of those rights, women, persons with disabilities, migrant workers with women’s organizations playing and persons living with infectious diseases. The next a central role in providing legal aid. The law was section provides an overview of the legislation for amended in 2005 when it introduced the prohibition each group. Though Chinese law does not foresee of sexual harassment for the first time. Nonetheless, their protection, the situation of sexual and gender women have continuously been excluded by law minorities has made a few breakthroughs that will from engaging in physically demanding jobs such as therefore be discussed. Finally, the developments mining.12 experienced by ethnic minorities, which have received much attention, will be addressed in this Despite existing legislation to redress inequalities, paper. gender-based discrimination remains commonplace as these laws are hardly enforced. Indeed, discrimination starts early on as numerous cases Breaking Down the Main Prohibited of selective abortions and abandonment of female Grounds of Discrimination children are still ongoing in a country that used to apply a one-child policy and traditionally values sons over daughters.13 When applying for higher Groups that Receive a Certain Level of education, universities often require women to score Protection (Albeit Imperfect) better than men at the entrance examination14 and many still apply gender ratios favoring men.15 Gender-Based Discrimination The economic reforms have also had a lasting negative impact on gender equality in recruitment processes. The Law on the With an increased competition on the labor market, Protection of Rights and Interests women are subject to discriminatory practices such of Women (1992) is the main as conditioning their employment to marriage and piece of legislation that guarantees maternity factors.16 Female employees are also paid women’s equal rights with men in 17 percent less than their male colleagues17 and only the political, cultural, educational, 21 percent of the top manager positions in Chinese employment, property, individual and family companies in 2018 were occupied by women.18 spheres. More particularly, many discriminatory With such unfavorable conditions, women often go practices are explicitly prohibited, including raising through longer periods of unemployment.19 school enrolment or employment standards for women, refusing to hire women or forcing them to Many have brought cases to the People’s Court. sign work contracts that restrict their right to marry For example, in 2013, a young Beijing graduate and to bear children, as well as discriminating filed a suit against Juren Academy for advertising 3 Backgrounder September, 2020 Figure 1. 2018 Gender Pay Gap (by number of work years) Figure 2. Percentage of Unemployed People in Urban Areas by Gender (2017) Currently enrolled as a student Unable to find employment
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