Workplace Discrimination in China

Workplace discrimination in China

The Constitution of the People’s Republic of China stresses that all citizens are equal and that ethnic minorities, people with religious beliefs, and women are not to be discriminated against in any aspect of civil life, including employment. China has, in addition, numerous laws and government policies designed to promote employment equality. Yet, employment discrimination is pervasive and still widely tolerated, practiced by both private employers and government institutions. Laws and regulations aimed at eliminating employment discrimination are hampered by technical shortcomings, ineffective enforcement and conflicting legislations and government policies that appear to promote, rather than discourage, the continuation of discriminatory practices.

This introduction will provide an overview of the main forms of employment discrimination in China (those based on gender, age, social origin, health status and disability, religion and ethnicity), an analysis of the current legal protections available to workers and an assessment of the legal and policy reforms that are still needed to adequately protect workers from employment discrimination.

Contents

Forms of employment discrimination in China

Gender

Age

Household registration

Disabilities

Health

Ethnicity and religion

Others

Laws and regulations related to employment discrimination

Deficiencies of the current laws

Conclusion and recommendations

Forms of employment discrimination in China

Gender discrimination

Discrimination against women is commonplace in China and often starts before they even enter the workforce. The practice of gender-based quotas and enrolment policies in higher education is widespread, often resulting in women having to score much higher than men in entrance examinations for certain majors, especially at institutions concerned with the military or police training. While China’s Education Ministry defends the practice on the basis of “national interests,” the practice often extends to majors with little relation to gender, such as languages and sciences. Explanations given by university administrators often amount to nothing more than paternalistic judgments about the roles women are best suited to.

After graduation, women usually have a more difficult time than men in finding jobs, especially in fields related to science and technology. However gender discrimination is even more prolific in lower-skilled positions. In a study of more than one million Internet job postings, researchers found that overall more than ten percent of ads expressed a gender preference; but for jobs that did not require a college education, 23 percent of ads expressed a gender preference. These gender preferences tend to reflect and reinforce socially constructed norms, as clearly exemplified by the photographic slideshow of the “beautiful scenery” at 18th Communist Party Congress in Beijing in November 2012 and this advertisement on Hainan Airlines,which offers its "beautiful stewardesses" as an inducement to buy property.

In general, men are preferred for white-collar managerial jobs while women are preferred in sales and clerical positions. Moreover, positions that require interaction with the public, such as hostesses, usually have maximum age and physical appearance requirements as well.

In 2013, however, newly graduated Cao Ju filed what is believed to be China’s first gender discrimination lawsuit, Cao took the Juren Academy in Beijing to court after it refused to consider her for a position as an administrative assistant. The post had been advertised as for men-only. Cao accepted 30,000 yuan and a formal apology from the Academy after a year-long legal struggle. This high-profile case, dubbed one of the ten most important public interest cases of 2013, encouraged more women to protest discriminatory recruitment practices. A university student for example subsequently dressed up as Mulan in a job fair in Zhengzhou to campaign against discriminatory job advertisements. See photo below.

Even when job advertisements do not specify gender requirements, employers often make their hiring preference clear in other ways, such as in oft-stated beliefs that female factory workers are easier to control and discipline.

Employers often ask prospective female workers about their family plans, out of concern that female workers will leave their jobs after marriage, for maternity leave, or to raise their families. Employers often require female workers to agree to illegal contract conditions, requiring them to undergo pregnancy tests or adhere to stringent conditions regarding plans for marriage and pregnancy. Many employers find ways to coerce pregnant workers into resigning in order to save on temporary replacements or benefits costs. In many such cases, pregnant workers were asked to work unreasonable hours or given intense workloads, and their applications for maternity leave were often turned down. In one highly publicised case, BaoYating, a high-flying public relations executive in an online shopping company, was fired without compensation after she refused to work overtime. Bao finally settled with the company for 250,000 yuan.

Women also risk losing their jobs if they have a second child in contravention of China’s one-child policy. A teacher at the Baihua Village School in Xi’an, for example, was suspended without pay in August 2013 for violating the one-child policy. Family planning rules will be relaxed in the future but there is still a chance that women, particularly those in public service positions, can be fired for reasons completely unrelated to their work.

Certain Chinese laws and regulations, designed to “protect” women workers can actually have the effect of institutionalizing gender discrimination. The Labour Law and the Regulations on the Scope of Prohibited Labour for Female Workers both explicitly bar women from many physically demanding jobs, such as logging, underground mining, setting up power lines or scaffolding. The Regulations establish further prohibitions for jobs that may not be done by menstruating, pregnant or lactating women. Rather than imposing physical ability tests, such blanket prohibitions simply enforce beliefs that women are weak and unsuitable for certain jobs.

Sexual harassment is a serious and widespread problem in the workplace. A 2013 survey, for example, revealed that up to 70 percent of women factory workers in Guangzhou have been victims of sexual harassment. However, formal complaints and lawsuits are still a rarity. About 43 percent of the respondents in the survey said they suffered in silence, while 47 percent said they actively resisted the harassment. However, nearly all respondents agreed that their employer, the trade union and the women’s federation, and even the police would be of little help in addressing the problem The first successful sexual harassment lawsuit in Guangzhou, for example, was in 2009 when a 28-year-old office worker, Ms. A, was fired after complaining about blatant sexual harassment by her Japanese boss, which was even caught on camera during an office party. The court ordered the defendant to make a formal apology and pay Ms. A 3,000 yuan in compensation for the mental anguish caused by the incident.

Discrimination based on age

Age discrimination often goes hand in hand with gender discrimination, especially in hiring practices. Age requirements in employment advertising are extremely prevalent. (See photo below). In low-level manufacturing jobs, employers often restrict hiring to workers under the age of 30 or even younger, refusing to re-hire them as they become older, out of a belief that younger workers are cheaper and more productive.

Recruitment ad for an electronics factory in Dongguan specifying 20- to 30-years-old age limit.

The campaign group, the Equity and Justice Initiative, filed a complaint against the Shenzhen Securities Exchange in October 2011 after it posted an advertisement for management, legal, accounting and computing professionals that stipulated applicants should be under 28-years-old.

Although the Exchange later rescinded its policy, age discrimination is still rampant in many white collar professions including the civil service: one study of 9,762 employment postings for civil service jobs found every single one mentioned age restrictions. And another study of 29,639 job advertisements found that 85.6 percent of the positions had age restrictions.

China’s uneven retirement ages may also contribute to the prevalence of age discrimination in employment. For government employees, including employees at state-owned enterprises, mandatory retirement policies require men to retire at age 60, and women at either 55 (if classified as a “cadre”) or 50 (if “worker”). These differentials perpetuate perceptions that women are physically unable to work for as long as men and discourage employers from hiring women for long-term positions. And since pensions are tied to wages earned and years worked, a female retiree will almost certainly have a smaller pension than a male retiree in the same position. And while retirement is not mandatory in private employment, the same dynamics are likely to come into play.

Discrimination based on the household registration system

Migrant workers in China face employment discrimination largely stemming from the government’s household registration system, also known as the hukou (户口) system. Set up over half a century ago to control internal migration, the hukou system institutionalizes discrimination against workers from rural areas. Outside their home province, migrant workers face numerous institutional hurdles compared to local residents, such as tougher standards for entrance into universities, requirements for residential permits, limited access to health and social services, including schools for their children and, in some cases, restrictions on purchase of homes and vehicles.

Migrant workers in Chengdu.

Migrant workers often receive less pay for the same work as urban residents, and are more likely to be denied their due benefits and end up in labour disputes over unpaid wages or unpaid overtime. Many of the issues faced by migrant workers stem from the fact that they are often relegated to low-skilled positions in which exploitation of the vulnerable is rife. Studies indicate that many of the labour issues faced by migrant workers stem from unequal urban and rural development, especially in education: Rural residents have fewer education opportunities than urban residents and therefore can often only find poorly paid and often dangerous jobs where they are more likely to be subject to exploitation.

Even when rural residents are able to obtain higher education, they still face discrimination when seeking jobs after graduation. A 2010 survey of employers of college graduates found that nearly 60 percent of them set specific hukou requirements for prospective employees. In 2013, a graduate from Anhui sued the Nanjing Municipal Bureau of Human Resources and Social Security, accusing it of discrimination in its job recruitment drive. Su Min (pseudonym) demanded a formal apology and 50,000 yuan in emotional damages after the bureau specified that applicants for a job as a telephone consultant must have a Nanjing hukou. Su Min was from the town of Xuancheng, just 100 kilometres outside Nanjing, and as such she was barred from applying. After a 15 month legal battle, she was eventually awarded 11,000 yuan in compensation.

On 24 July 2014, the State Council announced plans to further reform the hukou system and help alleviate the injustices faced by migrant workers and their families. Under the new plan, however, migrants still need a steady job and sufficient income to afford stable accommodation in cities to meet the residency requirements. Moreover, major cities such as Beijing and Shanghai will still be able to strictly control the number of migrants granted residency.

For a larger overview of the discrimination faced by migrant workers China, see the Migrant workers and their children section of the Resource Centre, as well as CLB’s special report on the children of migrant workers.

The exploitation of and discrimination against workers with physical and mental disabilities

As in many other countries, men and women with mental disabilities routinely face often insurmountable obstacles in the workplace. However, a particularly serious problem in China is the kidnapping and trafficking of vulnerable individuals into forced labour in remote locations, often for years on end.

Probably the most notorious example of this kind of forced labour was the “black kilns” scandal of 2007 in which hundreds of children and adults were forced to work in brick kilns in the central provinces of Shanxi and Henan. But similar cases have been reported in Chinese media on a regular basis since. Indeed many such cases only come to light after they have been exposed by investigative journalists. In one such case in 2011, a reporter posed as a mentally disabled person at a train station for just two days before being kidnapped and sold to a factory for 500 yuan. In another case, a reporter revealed that around a dozen workers have been held in a state of indentured servitude in a building materials factory in Xinjiang for around three years, working long hours in appalling conditions for no pay. They were beaten if they tried to escape and given the same food as the bosses' dogs. The workers, eight of whom reportedly had mental disabilities, had been sold to the factory by an organization called the “Beggars Adoption Agency” of Qucounty in Sichuan. The agreement specified that the factory should pay the agency a one-off fee of 9,000 yuan, plus 300 yuan per month per worker and compensate the agency 1,000 yuan for each worker “lost.” The workers themselves did not receive any money.

For workers with physical disabilities, including limited sight, hearing and mobility, finding any form of employment can be difficult. A 2007 survey of 3,454 university graduate job seekers found that 22 percent of respondents were rejected for positions due to physical disabilities. A 2010 report by the China Disabled Persons' Federation found that only 34 percent of urban and 49 percent of rural disabled individuals with the ability to self-care were actually employed.

Pang Jinpeng (above) has not been able to work since 1977 when, aged just 19, he was hit by a tanker at the state-owned coal mine he was employed at. He was paralyzed from the neck down and has spent most of his adult life confined to his home in the central province of Hebei.

The unemployment situation of the disabled in China was so serious in 2007 that the government Regulations of Employment for People with Disabilities mandated that all enterprises reserve at least 1.5 percent of their workforce positions for disabled workers, or otherwise pay into an employment guarantee fund for the disabled.

However, it seems this regulation is widely ignored, even by local government departments. A survey of government departments in 30 Chinese cities by the anti-discrimination pressure group Yirenping found that the highest percentage of disabled employees in any government department was just 0.39 percent, with some departments having as low a percentage as 0.02 percent. Nor is it certain that money going into employment guarantee funds is being used for the primary purpose of providing employment services to the unemployed and disabled. Reports indicate that corruption and misuse of funds are rampant. An audit of the funds used in Zhejiang found that only 13.7 percent of the funds were actually used for professional training and employment services for the disabled; in one Hubei county 80 percent of funds were used to pay staff benefits and administrative expenditures.

The Beijing municipal government has set up an award system to further encourage workplace diversity, offering employers 3,000 yuan for each person with disabilities hired above the quota. However, the system is poorly monitored and easily abused; putting the persons with disabilities hired in a more vulnerable position. An education company in Beijing hired 20 persons with disabilities in the summer of 2012, offering pre-placement training and remote working arrangements. Yet, all these employees were dismissed after just two months once the company had completed a public relations film on how to create employment for people with disabilities. Despite this obvious scam, the firm was still later named an Outstanding Unit in Promoting Disability Management. The dismissed employees took the case to arbitration.

Many other disabled workers are now taking similar legal action and this is putting pressure on the authorities to level the playing field. The Anhui provincial government, for example, has now started providing electronic versions of the civil service examination paper and relevant accessible software at the request of visually-impaired candidates, after disability rights activist XuanHai filed a lawsuit against the local government in 2012.

Discrimination against workers with HBV and HIV

There are an estimated 120 million people in China living with HBV, the virus that causes Hepatitis B; nearly ten percent of the country’s entire population. Like HIV (the virus that causes AIDS), HBV can only be spread through the direct exchange of bodily fluids: Daily contact poses no risk to others. However, it is widely believed in China that Hepatitis B is a contagious disease that can be spread through casual contact at school or in the workplace. This misapprehension probably stems from a fear of Hepatitis A, an infectious liver inflammation spread by contaminated food and water, which was for a long time endemic in China and killed dozens of people in Shanghai in an outbreak in 1988. This fear has been exacerbated by a flood of scaremongering advertisements in the Chinese media for “cures” and products providing protection from HBV.

People with HBV were systematically excluded from public and private sector employment until the mid-2000s when anti-discrimination activists started filing lawsuits against employers, including local governments. The anti-discrimination group Yirenping was particularly successful in not only winning lawsuits but in publicising the cases and putting pressure on the government to change the law. Restrictions have now been lifted and fines introduced for employers who illegally test prospective employees for HBV. Despite these improvements, in 2011 Yirenping found in a survey of 180 state-owned enterprises, that 61 percent of enterprises still conducted screening for HBV and 35 percent of the enterprises stated that they would reject job candidates with HBV. In fact, employment discrimination against people with HBV is still so common that many candidates have resorted to cheating their way through medical exams. There is a thriving black market for cheating services or so-called “gunslingers” (体检枪手) who can earn over 1,000 yuan by taking pre-employment medical tests for candidates with HBV. See Yirenping’s detailed research report on HBV discrimination for more details.