《中国宪法学 Chinese Constitutional Law》课程教学资源（学术文献）DEALING WITH DISCRIMINATION IN MAINLAND CHINA（AN OVERVIEW OF DISCRIMINATION IN EMPLOYMENT AND THE LEGAL FRAMEWORK ADDRESSING IT）

DEALING WITH DISCRIMINATION IN MAINLAND CHINA AN OVERVIEW OF DISCRIMINATION IN EMPLOYMENT AND THE LEGAL FRAMEWORK ADDRESSING IT By Jean-Francois Seguin, LL.M Candidate New York University School of Law May 2009 1.INTRODUCTION...... 42 2.DISCRIMINATION IN THE WORKPLACE. 2.1.Possible grounds of discrimination........ 4 i)Gender. .5 ii)Health status… 7 i词Physical trai讴… 10 iv)Migrants and minorities..... …12 v)Religious beliefs.… .13 3.THE ANTI-DISCRIMINATION LEGAL FRAMEWORK.........................14 3.1.The Chinese Constitution,equality and unity........... 14 3.2.Specific laws addressing discrimination in employment........... 17 4.ENFORCEMENT OF NON-DISCRIMINATION PROVISIONS.............. 24 5.CONCLUSION. .30

DEALING WITH DISCRIMINATION IN MAINLAND CHINA AN OVERVIEW OF DISCRIMINATION IN EMPLOYMENT AND THE LEGAL FRAMEWORK ADDRESSING IT By Jean-François Séguin, LL.M Candidate New York University School of Law May 2009 1. INTRODUCTION................................................................................................................ 2 2. DISCRIMINATION IN THE WORKPLACE.................................................................. 4 2.1. Possible grounds of discrimination.............................................................................. 4 i) Gender............................................................................................................................ 5 ii) Health status ................................................................................................................. 7 iii) Physical traits............................................................................................................. 10 iv) Migrants and minorities............................................................................................. 12 v) Religious beliefs........................................................................................................... 13 3. THE ANTI-DISCRIMINATION LEGAL FRAMEWORK.......................................... 14 3.1. The Chinese Constitution, equality and unity .......................................................... 14 3.2. Specific laws addressing discrimination in employment ......................................... 17 4. ENFORCEMENT OF NON-DISCRIMINATION PROVISIONS ............................... 24 5. CONCLUSION................................................................................................................... 30

1.INTRODUCTION China has emerged as a global economic superpower.Its economic growth,since the reforms of Deng Xiaoping until today,is unique in history.Its development,in many aspects, is phenomenal.While the Chinese government is building a modern and industrialized state, questions on social and legal development in China may arise. One critical challenge of China's emergence is the modernization of its legal system and moving toward the rule of law'.In Marc Galanter's definition of a "modern legal system',the law should be transactional and people's rights should not be influenced by factors like their sex,ethnicity or religion2.In other words,a modern system should recognize that all are equals and prevent discrimination.According to Galanter,the law should also be "universal"and applied without discrimination'.In pursuing the modernization of its legal system,China needs to counter discrimination and advance equality for minorities. Like in nearly all nations,discrimination has always been part of China's history For instance,Shuping Wang,a 2002 Global Public Service Scholar at NYU School of Law,noted in a paper on China's policy toward minorities that ethnic groups were seen and treated as barbarians in ancient China: [F]or most of China's history,the Han in Central China discriminated against backward'ethnic groups;while in other periods ethnic groups assumed power,such as in the Yuan and Qing Dynasties.In such periods,the governing minority ethnic groups discriminated against other ethnic groups, including the majority Han. 1 See generally RANDALL PEERENBOOM,CHINA'S LONG MARCH TOWARD RULE OF LAW (Cambridge University Press)(2002). 2 In Frank K.Upham and Xin He,Class One:What Is A Modern Legal System?,Law And Society In East Asia, New York University School of Law,Spring,2009,at 2(distributed in class). 31d. A Shuping Wang,The Peoples's Republic Of China's Policy on Minorities and International Approaches to Ethnic Groups:A Comparative Study,Int'l J.on Minority Groups Rts.159 2004,at 163 51d. 2

2 1. INTRODUCTION China has emerged as a global economic superpower. Its economic growth, since the reforms of Deng Xiaoping until today, is unique in history. Its development, in many aspects, is phenomenal. While the Chinese government is building a modern and industrialized state, questions on social and legal development in China may arise. One critical challenge of China’s emergence is the modernization of its legal system and moving toward the rule of law1 . In Marc Galanter’s definition of a ‘‘modern legal system’’, the law should be transactional and people’s rights should not be influenced by factors like their sex, ethnicity or religion2 . In other words, a modern system should recognize that all are equals and prevent discrimination. According to Galanter, the law should also be ‘‘universal’’ and applied without discrimination3 . In pursuing the modernization of its legal system, China needs to counter discrimination and advance equality for minorities. Like in nearly all nations, discrimination has always been part of China’s history4 . For instance, Shuping Wang, a 2002 Global Public Service Scholar at NYU School of Law, noted in a paper on China’s policy toward minorities that ethnic groups were seen and treated as barbarians in ancient China: [F]or most of China’s history, the Han in Central China discriminated against ‘backward’ ethnic groups; while in other periods ethnic groups assumed power, such as in the Yuan and Qing Dynasties. In such periods, the governing minority ethnic groups discriminated against other ethnic groups, including the majority Han.5 1 See generally RANDALL PEERENBOOM, CHINA’S LONG MARCH TOWARD RULE OF LAW (Cambridge University Press) (2002). 2 In Frank K. Upham and Xin He, Class One: What Is A Modern Legal System?, Law And Society In East Asia, New York University School of Law, Spring, 2009, at 2 (distributed in class). 3 Id. 4 Shuping Wang, The Peoples’s Republic Of China’s Policy on Minorities and International Approaches to Ethnic Groups: A Comparative Study, Int’l J. on Minority & Groups Rts. 159 2004, at 163. 5 Id

The world's most populous country has over 56 minority ethnic groups(minzu),with the Han population being the majority group Although development is lifting people out of poverty at a rapid rate,minorities in the country seem to benefit far less from the economic progress in China:minorities represent8%of the total population but they comprise 40%of the poor The treatment of minorities and other forms of discrimination documented in China have been criticized by Western media,NGOs and scholars8. While the author does not have the requisite expertise to fully and justly analyze discrimination in China and to judge of how the government is dealing with it through policies and the law,this paper reviews the relevant literature and provides an overview of the existing legal framework protecting against discrimination in the workplace.The four main questions the author tries to answer are the following: What are the main forms of discrimination in employment? Do Chinese citizens have a recognized fundamental right to equality? Is the legal corpus and system adequately protecting people against illegal discrimination? Is China evolving toward less discrimination? After looking at the possible grounds of discrimination such as gender,ethnicity and religion, the relevant laws are examined.How non-discrimination provisions are and can be enforced in Chinese courts is then discussed.It concludes with an assessment of the Chinese government's actions to cope with discrimination. 6 Shuping Wang,supra note 4,at 162. 7Susan K.McCarthy,The State,Minorities.And Dilemmas Of Development In Contemporary China,26 Fletcher F.World Aff.107(2002),at 107. 8 See Internal Migrants:Discrimination And Abuse-The Human Cost Of An Economic 'Miracle,Amnesty International,March 2007,available online at http://www.amnesty.org/en/library/info/ASA17/008/2007. This paper examines discrimination and legal protection against it in mainland China.It does not cover Autonomous and Special Administrative Regions. 3

3 The world’s most populous country has over 56 minority ethnic groups (minzu), with the Han population being the majority group6 . Although development is lifting people out of poverty at a rapid rate, minorities in the country seem to benefit far less from the economic progress in China: minorities represent 8.2% of the total population but they comprise 40% of the poor7 . The treatment of minorities and other forms of discrimination documented in China have been criticized by Western media, NGOs and scholars8 . While the author does not have the requisite expertise to fully and justly analyze discrimination in China and to judge of how the government is dealing with it through policies and the law, this paper reviews the relevant literature and provides an overview of the existing legal framework protecting against discrimination in the workplace9 . The four main questions the author tries to answer are the following: ▫ What are the main forms of discrimination in employment? ▫ Do Chinese citizens have a recognized fundamental right to equality? ▫ Is the legal corpus and system adequately protecting people against illegal discrimination? ▫ Is China evolving toward less discrimination? After looking at the possible grounds of discrimination such as gender, ethnicity and religion, the relevant laws are examined. How non-discrimination provisions are and can be enforced in Chinese courts is then discussed. It concludes with an assessment of the Chinese government’s actions to cope with discrimination. 6 Shuping Wang, supra note 4, at 162. 7 Susan K. McCarthy, The State, Minorities, And Dilemmas Of Development In Contemporary China, 26 Fletcher F. World Aff. 107 (2002), at 107. 8 See Internal Migrants: Discrimination And Abuse - The Human Cost Of An Economic ‘Miracle’, Amnesty International, March 2007, available online at http://www.amnesty.org/en/library/info/ASA17/008/2007. 9 This paper examines discrimination and legal protection against it in mainland China. It does not cover Autonomous and Special Administrative Regions

2.DISCRIMINATION IN THE WORKPLACE Discrimination in employment is widespread and well documented in China.A study conducted in ten large cities by a team of academics from Peking University,Tsinghua and the China University of Political Science Law in 2006 indicated that about 85.5%of the 3,424 respondents interviewed thought that discrimination in the workplace exists and 58%of them thought the problem was severe.Ronald C.Brown,a professor of law and former Fulbright Distinguished Lecturer at Peking University Law School,had his attention caught by a job advertisement posted on a wall outside of the Ministry of Labor in Beijing in 1996 The add read as follows: Seeking an office clerk.Female,decent height and appearance.All five facial 1 organs must be in the right place [wu guan duan zheng]. Discrimination can also go much further than physical attributes.Apparently,in 2005,it was reported by Chinese media that some employers refused to hire qualified candidates because they were born as dogs in the Chinese astrological cycle2.Although this can be a somewhat isolated peculiar case of discrimination,it is fair to say that discrimination in work is quite common in China. 2.1.Possible grounds of discrimination Discrimination exists based on many grounds.Gender,health status,physical traits, ethnicity (residence)and religious beliefs are among the most common factors of discrimination in employment3 10 Xun Zeng,Enforcing Equal Employment Opportunities In China,9U.Pa.J.Lab.&Emp.L.991(2006-2007), at992. 1 Ronald Brown,China's Employment Discrimination Laws During Economic Transition,19 Colum.J.Asian L.361(2005-2006),at362. 12 Xun Zeng,supra note 10,at 993 Ronald Brown,supra note 11,at 362. ?

4 2. DISCRIMINATION IN THE WORKPLACE Discrimination in employment is widespread and well documented in China. A study conducted in ten large cities by a team of academics from Peking University, Tsinghua and the China University of Political Science & Law in 2006 indicated that about 85.5% of the 3,424 respondents interviewed thought that discrimination in the workplace exists and 58% of them thought the problem was severe10 . Ronald C. Brown, a professor of law and former Fulbright Distinguished Lecturer at Peking University Law School, had his attention caught by a job advertisement posted on a wall outside of the Ministry of Labor in Beijing in 1996. The add read as follows: Seeking an office clerk. Female, decent height and appearance. All five facial organs must be in the right place [wu guan duan zheng]. 11 Discrimination can also go much further than physical attributes. Apparently, in 2005, it was reported by Chinese media that some employers refused to hire qualified candidates because they were born as dogs in the Chinese astrological cycle12 . Although this can be a somewhat isolated peculiar case of discrimination, it is fair to say that discrimination in work is quite common in China. 2.1. Possible grounds of discrimination Discrimination exists based on many grounds. Gender, health status, physical traits, ethnicity (residence) and religious beliefs are among the most common factors of discrimination in employment13 . 10 Xun Zeng, Enforcing Equal Employment Opportunities In China, 9 U. Pa. J. Lab. & Emp. L. 991 (2006-2007), at 992. 11 Ronald Brown, China’s Employment Discrimination Laws During Economic Transition, 19 Colum. J. Asian L. 361 (2005-2006), at 362. 12 Xun Zeng, supra note 10, at 993. 13 Ronald Brown, supra note 11, at 362

Other types of discrimination,based on the name or the age,have been reported as well.For example,the manager of a store wanted to hire a woman to be a salesperson but quickly changed his mind when he learned that her family name was "Pei',which in Mandarin can sound like "loosing money"4.Same situation happened when a young man namedJia''applied for a customer service position in a company.The manager did not hire him because Jia is pronounced like the word "fake15.Another department store had stipulated in its official employment policy that all sales representatives should be below 35 years old and be registered as permanent resident of Beijing.It is well known in China that many employers prefer to employ young people and that older candidates,even though qualified,may struggle more to find a job i)Gender Women clearly play a very important role in all aspects of the Chinese society.Their equality to men has long been recognized and is now officialised by the Constitution'.Mao Zedong,in a speech given in 1955,declared: Enable every woman who can work to take her place on the labor front under the principle of equal pay for equal work.This should be done as soon as possible.19 Nonetheless,many women continue to be victim of gender-based discrimination.The online China Information Center2 reports that general discrimination against women has Charles Chen and Jihong Wu,Employment Discrimination in China,Canadian International Lawyer,Vol6, No.1(2004),at40. 51d. 161d,at41. 71d,at40. i Article 48,Constitution of the People's Republic of China,available online at http://english.gov.cn/2005- 08/05/content 20813.htm(the Constitution have been adopted at the Fifth Session of the Fifth National People's Congress and promulgated for implementation by the Proclamation of the National People's Congress on December 4.1982). 9Ronald Brown,supra note 11,at 371. J

5 Other types of discrimination, based on the name or the age, have been reported as well. For example, the manager of a store wanted to hire a woman to be a salesperson but quickly changed his mind when he learned that her family name was ‘‘Pei’’, which in Mandarin can sound like ‘‘loosing money’’14 . Same situation happened when a young man named ‘‘Jia’’ applied for a customer service position in a company. The manager did not hire him because Jia is pronounced like the word ‘‘fake’’15 . Another department store had stipulated in its official employment policy that all sales representatives should be below 35 years old and be registered as permanent resident of Beijing16 . It is well known in China that many employers prefer to employ young people and that older candidates, even though qualified, may struggle more to find a job17 . i) Gender Women clearly play a very important role in all aspects of the Chinese society. Their equality to men has long been recognized and is now officialised by the Constitution18. Mao Zedong, in a speech given in 1955, declared: Enable every woman who can work to take her place on the labor front under the principle of equal pay for equal work. This should be done as soon as possible.19 Nonetheless, many women continue to be victim of gender-based discrimination. The online China Information Center20 reports that general discrimination against women has 14 Charles Chen and Jihong Wu, Employment Discrimination in China, Canadian International Lawyer, Vol.6, No.1 (2004), at 40. 15 Id. 16 Id., at 41. 17 Id., at 40. 18 Article 48, Constitution of the People’s Republic of China, available online at http://english.gov.cn/2005- 08/05/content_20813.htm (the Constitution have been adopted at the Fifth Session of the Fifth National People's Congress and promulgated for implementation by the Proclamation of the National People's Congress on December 4, 1982). 19 Ronald Brown, supra note 11, at 371