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Thursday, July 18, 2019

The Anti-Discrimination Toolkit Has Expanded. Can We Make Good Use of It?

Yale Law School building detail

Liu Xiaonan and Darius Longarino argue that although China has recently put out a series of measures to fight employment discrimination and promote gender equality in the workplace, real on-the-ground implementation of these measures has a long way to go. 

At the just-concluded “Two Sessions”, Chinese Premier Li Keqiang stressed once again in the government work report that “gender and identity discrimination in employment should be resolutely prevented and corrected.” Sun Dehong, Song Jing, Nie Pengju, Wei Zhimin, and other representatives of the National People’s Congress and the Chinese People’s Political Consultative Conference also submitted suggestions and proposals on eliminating gender discrimination and promoting gender equality in the workplace.

In the past few years, the Party, the government, and “Two Sessions” representatives have been paying close attention to the issue of gender discrimination in employment. Both the 18th and the 19th Communist Party report to the National People’s Congress declare that “the fundamental state policy of equality between men and women should be upheld.” In 2013, a CCP Central Committee document titled Decisions of the CCP Central Committee on Some Major Issues Concerning Comprehensively Deepening Reform further states that “the system of recruiting and employing people should be standardized, and all institutional barriers and employment discrimination based on urban-rural status, industry, identity, and gender shall be eliminated.” Chinese Chairman Xi Jinping stressed at the Central Economic Work Conference at the end of 2017 that “issues of gender and identity discrimination shall be properly addressed in employment.” In 2018, Premier Li Keqiang also emphasized in the government work report at the first session of the 13th National People’s Congress that “the consultation mechanism of labor relations shall be perfected, eradicating gender and identity discrimination.”

2018 was the year China’s relevant departments focused on tackling gender discrimination in employment, leading to notable outcomes. In February 2019, after a year of in-depth research, interviews, and consultation with other parties, the Ministry of Human Resources and Social Security, together with eight other government bodies including the Ministry of Education, the Ministry of Justice, the Supreme People’s Court, and the All-China Women’s Federation, jointly issued the Notice on Further Regulating Hiring Practices and Promoting Women’s Employment. The Notice further clarifies the criteria for determining gender discrimination in employment, listing the “six prohibitions” of employers and human resources service agencies: first, employers shall not set gender restrictions or gender preferences, except for occupations that females are prohibited from as stipulated by the state; second, the marriage and childbearing status of women shall not be inquired into by employers; third, pregnancy tests shall not be taken as part of the pre-employment physical examination; fourth, employment standards shall not be raised for women; fifth, birth restrictions shall not form an employment condition; sixth, women shall not be restricted from seeking and taking employment based on their gender, and nor shall women be refused employment based on their gender. Another distinguishing aspect of the Notice is that it improved the mechanisms by which female workers can safeguard their equal employment rights.

Eliminating gender discrimination in employment is a complex process. To achieve the desired outcome, government bodies must clearly divide up responsibilities, strengthen coordination and cooperation, and use all tools at their disposal. Therefore, the “nine bodies” work by dividing labor and carrying out their respective duties: the human resources and social security departments, in conjunction with other relevant departments, will strengthen the supervision and enforcement of hiring practices, guide employers to recruit workers in a legal and reasonable manner, and improve employment services and vocational skills training targeted at women; the education departments are responsible for promoting the development of after-school childcare services in primary and secondary schools; the judicial departments will provide judicial relief and legal aid; the health departments will promote the development of infant care services; the state-owned assets supervision and administration departments are responsible for strengthening the guidance and supervision of the hiring practices of state-owned enterprises at all levels; the health security administration departments will perfect and implement the maternity insurance system; trade unions will actively push enterprises to comply with laws and regulations in their hiring practices; the All-Women’s Federation, in conjunction with relevant parties, will honor distinguished individuals and organizations, increase publicity and guidance, and expand care for women; the People’s Courts will actively publish model and guiding cases, maximizing their regulating and guiding role as arbiters. In addition, human resources and social security departments, trade unions, women’s federations, and other government departments have set up employment gender discrimination hotlines and summoned employers suspected of gender discrimination for joint meetings.

In the past year, the All-China Federation of Trade Unions (ACFTU) has taken even bigger steps in promoting gender equality in the workplace. In addition to jointly issuing the Notice on Further Regulating Hiring Practices and Promoting Women’s Employment, the ACFTU carried out research on gender equality in 38 enterprises across 8 provinces and cities, 28 partner enterprises of the ACFTU’s Women Workers Department, and 17 enterprises in the finance sector. The ACFTU gained a thorough understanding of gender equality at these firms and conducted in-depth and comprehensive research on Chinese and foreign practices to promote gender equality systems in the workplace. Based on its extensive research, the ACFTU published the Manual for Promoting Gender Equality in the Workplace in February 2019. The Manual goes beyond simply promoting women’s employment and protecting the rights of female employees — it looks at gender equality from a social perspective, advocates corporate social responsibility, and focuses on eliminating employment discrimination. Another highlight of the Manual is its definition of gender equality and gender discrimination and the distinction it draws between direct and indirect discrimination. The Manual also stresses that employment gender discrimination does not exist solely in the recruitment process. Employers’ differential treatment of workers based on their gender and marital status in all of the following phases and areas may constitute discrimination: recruitment, employment, job placement, wages and benefits, training, promotion, working hours, working conditions, social security, dissolution or termination of labor relations, and any act that hurts workers’ equal rights, opportunities, and treatment. The Manual is divided into six sections: equal employment opportunities, equal career development opportunities, equal remuneration and treatment, maternity protection, support for workers to balance work and family responsibilities, and prevention of workplace violence and sexual harassment. The Manual gives detailed interpretations of laws related to gender equality, describes the institutions employers ought to set up and the role trade unions should play, analyzes and comments on cases, and provides checklists in order for employers to establish and make more robust their gender equality institutions and providing help for trade unions to promote gender equality in the workplace, and for workers to safeguard their rights and interests in accordance with law.

In December 2018, the Supreme People’s Court issued the Notice on Expanding the Causes of Action in Civil Cases, adding two new causes of action: “equal employment rights disputes” and “liability for harm in sexual harassment disputes.” Prior to the Notice, courts’ case filing divisions usually filed employment discrimination cases under “general personality right disputes,” providing an excuse for courts to refuse to accept a case. Although the reform of the case filing system since 2015 has made filing employment discrimination cases easier, judges still would not handle employment discrimination cases as a separate category due to the lack of a cause of action. The new cause of action reflects the seriousness with which the court takes employment discrimination and sexual harassment cases, which have finally been given a proper “name.” It can help courts, lawyers, and the public pay more attention to such cases, improve the understanding of the concepts of employment discrimination and sexual harassment, and help society as a whole gain more experience in identifying employment discrimination and sexual harassment. It is also helpful for how cases are tried in practice, helping workers better protect their rights and seek judicial relief.

The causes of gender discrimination in employment are complex, and every country in the world is tackling this issue. Gender equality cannot be achieved overnight. The 2018 ACFTU survey on gender discrimination shows that most managers are not interested in promoting gender equality in their firms. More than 40 percent of them believe that promoting gender equality affects the normal operations of their businesses. Some heads of human resources have made it clear that asking prospective employees about their marriage and fertility plans is a reasonable way for businesses to make labor arrangements. The survey found that in the job interview process, many businesses ask female employees about their marriage and fertility plans, treating them as important factors in the decision process. All female employees interviewed for the face-to-face survey said that they had experienced gender discrimination in the job application process. Male employees also participate in management or leadership training at a higher rate than female employees, and women are increasingly under-represented as they move up the corporate ladder. Most businesses have yet to take active measures to help employees address their childcare concerns, either. Thus, society has not reached a consensus yet on gender equality, and employment discrimination is still widespread.

There is a long way to go before China’s recent measures to combat employment discrimination and promote gender equality in the workplace can be implemented and put into effect. For example, although the Supreme People’s Court has added “equal employment rights” as a cause of action in litigation, it is still necessary to further reform how issues like the burden of proof and compensation are handled in such cases, in order to address the concern that evidence is difficult to produce in employment discrimination cases and that compensation for plaintiffs is low. Only then can we better protect workers’ equal employment rights.

In addition, although China has established a legislative system to eradicate gender discrimination in employment and protect women’s rights and interests, there remain issues such as scattered legal provisions, deficient models and methods of creating legislation, vague and impractical provisions, etc. In 2015, two groups of “Two Sessions” representatives, one led by Representative Sun Xiaomei and the other by Representative Gao Li separately put forth legislative proposals for the Anti-Employment Discrimination Law. In the fall of 2015, the National People’s Congress confirmed the Anti-Employment Discrimination Law as a necessary legislative item and called on relevant departments to start research and drafting. The National People’s Congress also said that the draft would be added to the legislative plan of its Standing Committee and that it would try to schedule the document for review in future annual legislative plans. However, there so far has been no further legislative developments in this area.

In the future, when pushing for the passage of the Anti-Employment Discrimination Law, we should not only emphasize technical aspects such as broadening the definition and classification of employment discrimination, establishing evidence burden shifting mechanisms, and strengthening compensation, but also strive to break the traditional legislative approach of promoting gender equality and eliminating employment discrimination from the perspective of protecting women’s rights and interests and providing “special” protection, as two Chinese laws did in the past (the Law on Protection of Women’s Rights and Interests and the Special Provisions on Labor Protection for Women Workers). In its “28th General Recommendation,” the Committee on the Elimination of Discrimination points out that “the inherent meaning of the principle of equality between men and women or gender equality means that all people, regardless of their gender, have the freedom to develop talents, pursue careers, and make decisions. They are not restricted by any stereotypes, rigid gender roles, or prejudices.” Anti-discrimination legislation should break through the perspective of gender as a binary and promote gender mainstreaming—women, men, sexual and gender minorities can all be harmed by gender stereotyping and experience gender discrimination in employment. In addition, legislation should also pay attention to the diversity, complexity, and individual differences within different gender groups, giving different individuals as much space and freedom of choice as possible, leaving them unbound by their gender identity.

Liu Xiaonan is a Professor at the Human Rights Research Institute of the China University of Political Science and Law. Darius Longarino is a Senior Fellow at Yale Law School’s Paul Tsai China Center. 

This article appeared in the Financial Times Chinese on March 29, 2019 as 反歧视“工具箱”更丰富了,我们能好好利用它么?.