Balkinization

Anti-discrimination law in China

The past few days I've been attending a fascinating conference on antidiscrimination law held in Chengdu sponsored by Sichuan University School of Law and the Yale China Law Center.

Despite the abstract ideology of equality in Communist China, antidiscrimination law in China is still at its earliest stages. Moreover, the key categories of concern in public discussion are quite different than we are used to in the American context.

As in America, sex equality has been a major focus, but the other two most often mentioned forms of discrimination were discrimination against people with Hepatitis B (roughly 100 million people) and discrimination against rural Chinese who have migrated to the large cities.

The hukou system of citizen registration, used to control China's vast populations, requires that Chinese register in their place of origin; when they move from rural areas to the cities, they must register at regular intervals as temporary workers. Because registration requirements are expensive and cumbersome, many rural Chinese in the big cities do not have proper documentation, leading to multiple varieties of discrimination and abuse by employers and state officials alike. One is tempted to make analogies to the situation of illegal immigrants in the United States, except that in this case, all of the rural Chinese are citizens.

The key sex equality issues in China are also very different than those in the United States. Although there are general guarantees of equality dating back to the Maoist period, the law is full of protective legislation and limitations on work deemed unsuitable for women.

In addition, people have expressed concerns about height discrimination, and, interestingly, discrimination based on appearance. Occasional government rules and employer practices make (to an American at least) highly arbitrary distinctions about physiognomy that in turn, are used to deny people access to jobs and benefits. One general theme of the conference was how often problems of discrimination in China arise from a panoply of state regulations that are difficult to work around.

Although Chinese law officially pronounces all citizens as equal, and contains many general guarantees of equality, procedural obstacles and lack of judicial and administrative remedies mean there is often no way to enforce these guarantees in practice. It is worth noting that antidiscrimination law as we know it today in the United States is also a comparatively recent invention; prior to the 1964 Civil Rights Act there were also very limited effective remedies for discrimination, at least at the national level, despite the presence of abstract guarantees of equality.

It is no accident that calls for antidiscrimination law in China arise as the country is making a transition to free markets. Although we in the United States tend to see tensions between individualism and equality, and between free markets and antidiscrimination law, a contrast with the Chinese experience shows how strongly these ideas are connected. American concepts for antidiscrimination law often feature notions of protecting individual dignity and individual opportunity, breaking down traditional barriers to advancement, and counteracting the effects of customary practices and prejudices. It is not surprising that a country like the United States has such a strongly individualist conception of antidiscrimination law. An important question for the future is how those concepts will translate in China and apply to the Chinese experience.

Posted 4:34 PM by JB [link]

Comments:

As someone who lived in China for five years, I always find these abstract discussions of law in China, well, hilarious. China does not have a system based on the rule of law. Period.

I also find it hilarious when American scholars who are up in arms over the Bush administration's encroachments upon the rule of law in the US (as they should be), suddenly turn their eyes to a place like China and find all sorts of "encouraging signs." Most Chinese are not fooled so easily; they know the "law" in China is a joke. Just as in the other major systems in China (academe, the health system, product safety, etc.), you either know the right people or you lose. The rest is window dressing, mostly for an audience of clueless Westerners. I've seen it a thousand times.

The real question China is grappling with now is how it can look like it has a system based on law while maintaining the party's supremacy behind the scenes. In China, the law exists in order to serve the party, not the other way around.

So the fine distinctions they come up with in anti-discrimination law are really moot. Who is going to enforce these laws? And in the one in a million cases in which the law is actually enforced it is usually only done so for political reasons ("political" in the sense of eliminating the competition).

Of course, all bets are off when one of the parties is a foreign entity of some sort, because then you are dealing with keeping up appearances. This explains why there actually have been advances in the area of contract law, but in terms of enforcement, you always need to look at the parties involved. Justice is far from blind in China; in fact, it is wearing super-powered bionic infrared night-vision goggles.

# posted by

me : 9:07 PM

"me" makes a good point. My point is that how unfair it is that US companies have to compete against Chinese companies, when the Chinese companies do not have to obey the myriad employment rules that American companies do. I agree with FMLA, title VII, ADEA, OWBFA, work comp laws, laws against public policy retaliation, wage and hour rules, OSHA regs, etc., but I am not so naive as to think that those laws are free. They are costly to employers. Even good employers have to spend money to comply, and yes sometimes there are non-meritorious cases filed by employees.
But we have a 'free trade' orthodoxy in Washington so I guess it's too much to hope for fair trade, as in tariffs against countries that do not have similar (or even remotely close) worker protection laws as exist in the US.

# posted by

abu hamza : 11:34 AM

I'm a Chinese HBV carrier, below is my blog written in English.
Your concern is our hope.

HBVers in China
Focus on HBV Discrimination in China

http://hbversinchina.blogspot.com/

An article I wrote 3 days ago.

Good News

On August 30, 2007, the Chinese government passed a new employment law called the China Employment Promotion Law. The main objectives of the new legislation include advancing employment, establishing fair employment conditions, and banning employment discrimination. The law took effect on January 1, 2008.

Job applicants will be entitled to sue employers for discrimination under the new national Employment Promotion Law.

Bad News

Before the law took effect, I wondered how effectively the new law will be implemented and enforced. Now, nearly one month after the law took effect, the outcome is pessimistic. HBV discrimination remains the same.

Why the law turned out to be less effective than expected?

Some sly HR managers began to reject HBV carriers for other excuses instead of hepatitis B. Finding an excuse to reject someone is so easy and you can get as many reason as you can if you want to. When it comes to accusation, it's very difficult for HBVer job-seekers to get any proof to sue the employers. Note that plaintiff is required to provide proof in China. Therefore, the law can't be implemented effectively.

How to solve the problem?

Pre-employment blood test of employees for hepatitis B should not be carried out unless relevant for assessment of medical fitness for work.

As far as I know, in China, only in China, pre-employment blood test of employees for hepatitis B are forced, no matter what kind of job you apply even if you apply a position as a software developer or mechanic.

# posted by

HBVers in China : 6:53 AM