Four worker plaintiffs, who had previously filed ground-breaking anti-discrimination lawsuits against employers in China, have now written to the State Council recommending that China enact a dedicated Employment Discrimination Law.
China’s first ever gender-discrimination litigant, Cao Ju, explained to Legal Weekly (法制周报) that the four plaintiffs decided to submit their letter after hearing about the State Council’s 26 November open call for legislative initiatives:
I was very happy to hear about this initiative. It was a rare opportunity. I found several other anti-discrimination litigants online and we jointly submitted a proposal for an Employment Discrimination Law to be enacted as soon as possible so as to create a level employment playing field, prevent casual discrimination and give the victims of discrimination a better chance of obtaining legal redress.
Employment discrimination is widespread and commonplace in China, affecting the lives of millions of workers and their families. However, as Cao pointed out, China’s current laws and regulations are fragmentary, one-sided and ineffective, and fundamentally unable to adapt to the needs of a developing society. Moreover, she said, the control and elimination of employment discrimination by enacting purpose-built legislation was an internationally recognised practice.
The four plaintiffs cited their own difficulties in filing and winning anti—discrimination lawsuits as further evidence of the need for a new law. They specifically pointed out the problem of courts claiming there was “no cause of action” as a justification for refusing to accept anti-discrimination cases. In addition, they argued that a clear distinction needs to be made between employment discrimination cases and general labour dispute cases, so that anti-discrimination cases that occurred after the employee was hired would not have to be first heard by an arbitration committee. Finally, the plaintiffs suggested setting a minimum compensation ceiling in anti-discrimination cases for psychological and emotional injury at 10,000 yuan.
China did enact the Employment Promotion Law in 2008 but as CLB points out in our report on employment discrimination in China, the law is deficient in several areas of administration, effectiveness, and coverage.
- 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.
- 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.
- Fines for violations of the Employment Promotion Law are hopelessly inadequate. A 1,000 yuan fine for conducting a HBV screening, for example, does not deter employers from conducting such tests.