Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to ground legal challenges against employers who discriminate against them in the hiring process. Plaintiffs' relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists, and scholars who actively support plaintiffs, suggesting a limited role for civil society in the world of Chinese law. Although many problems remain with employment discrimination, China has made concrete steps toward repealing a legal edifice of discrimination that stretches back decades and reshaping policies and attitudes to eradicate a prevalent form of discrimination, targeting carriers of infectious disease.
TABLE OF CONTENTS I. BACKGROUND A. Historical Background B. Defining Discrimination II. CHINESE DISCRIMINATION A. Job Advertisements B. Statistics C. Personal Experiences III. THE LAW OF EMPLOYMENT DISCRIMINATION A. Antidiscrimination Law B. Discriminatory Laws and Their Repeal 1A. Gender Discrimination 1B. Efforts to Reform Gender Discrimination 2A. Hukou Discrimination 2B. Efforts to Reform Hukou Discrimination 3A. Discrimination Against Infectious Disease Carriers 3B. Efforts to Reform Discrimination Against Infectious Disease Carriers IV. THE HBV SOCIAL MOVEMENT V. EMPLOYMENT PROMOTION LAW A. Provisions B. Cases C. Problems VI. CONCLUSION SOURCES FOR APPENDIX In 2003, two young college graduates almost got jobs in China's elite civil service. (1) Zhou Yichao, handsome and twenty-three years old, scored well on both the written test and the oral interview, ranking eighth of the 157 applicants. Zhang Xianzhu, twenty-five years old and bespectacled, ranked first among the thirty applicants in his hometown. Both men then took medical examinations, the final phase of the Chinese hiring process. Their medical examinations revealed that both men carried the hepatitis B virus (HBV), and according to provincial regulations on civil service examinations, this rendered them ineligible for government posts. Both were surprised by this result.
Zhou Yichao first contemplated suicide, but upon reconsideration, he bought a paring knife, went to the government office to ask about the results, and then stabbed two civil servants, killing one. Zhang Xianzhu also took an unexpected course of action. He retained a prominent discrimination lawyer and sued the government agency for violating his constitutional rights. Around these two cases--the murder trial of Zhou Yichao and the administrative litigation initiated by Zhang Xianzhu--a legal movement coalesced. China's HBV community, which at that point consisted of a couple of online chat rooms and discussion boards, seized upon these cases to launch a multifaceted campaign to introduce antidiscrimination laws, eliminate employment discrimination, and change social attitudes more generally. Somewhat remarkably, HBV advocates have largely succeeded in the first mission, lobbying government bodies to institute legal protections. However, like discriminatory attitudes more generally, discrimination by employers remains deeply rooted in contemporary China.
Since these events unfolded in 2003, advocates have petitioned government bodies, conducted campaigns to increase public understanding of the actual health risks of HBV, and litigated dozens of discrimination lawsuits. The government's response has been impressive. In at least three national laws (falu) and six administrative regulations (guize), Chinese government bodies have addressed the employment rights of disadvantaged Chinese, including women, ethnic minorities, the disabled, and carriers of infectious diseases (like HBV and AIDS). Central to the government's various legislative responses has been the careful mobilization of the HBV community, which has drafted recommendations and petitions to government agencies, sent open letters to Chinese government leaders, and commented on draft legislation prepared by the national legislature. This campaign opened a discussion about the nature of discrimination in China, as well as the role that citizens play in eradicating it.
Discrimination is a prevalent but poorly understood social problem in China. The shift from a state-controlled to a market-based economy in the past thirty years has impacted virtually every aspect of Chinese society, from raging economic growth to a floating population larger than most countries. But it has also opened up new opportunities for people to assert their free will, whether by purchasing new products, enjoying new forms of leisure, or engaging in new occupations. It has also given employers, once bound by the diktat of centralized economic planning, considerable autonomy to hire, as well as to discriminate in that process.
Of course, discriminatory practices and attitudes do not materialize out of thin air. One of this Article's primary arguments is that the Chinese government--at all levels--plays a leading role in promoting discrimination. (2) By mandating an earlier retirement age for women, as it has done since the early 1950s, the Chinese government signals to society that women are frail, merit special treatment, and cannot work as hard or as tong as men. Likewise, the household registration system (hukou) stamps a person as either rural or urban and links his access to social benefits to the locality where he is registered. Given the enormous gap between rich cities and poor villages, as well as the difficulty of changing one's hukou status, Chinese villagers face dim job prospects and a thicket of municipal restrictions on hiring out-of-towners. Official barriers also remain intact against carriers of infectious diseases. As seen above, civil service positions require applicants to be free of infectious diseases, even when the job itself presents no risk of contagion.
Facing these policies and social attitudes that reflect distrust and disfavor, advocates of various stripes--nongovernmental organizations (NGOs), public interest lawyers, concerned citizens, government-operated nongovernmental organizations (GONGOs), and others--have mobilized to challenge discrimination. In close contact with the media and online channels, these advocates have raised awareness, lobbied legislative and administrative bodies to repeal discriminatory regulations and pass protective ones, and filed dozens of lawsuits claiming employment discrimination. This Article argues that these mobilization efforts, as well as the legislative and administrative responses by government bodies, indicate a newfound responsiveness of the Chinese government to equal employment, a core issue of human rights. More importantly, the fact that courts have routinely found for victims of discrimination suggests that the level of commitment is more than merely "discursive," or paper on the books. Although we can, and will, rightly question the efficacy of remedies ordered by Chinese courts, it is clear that officials across various sectors of the Chinese government agree that discrimination against HBV carriers, if no one else, is worth proscribing.
This Article proceeds in five parts. Because the field of employment discrimination is so vast, this Article narrows the scope by focusing on three large disadvantaged groups: women, migrant workers, and carriers of infectious diseases. Discrimination itself is a multifaceted phenomenon. Therefore, in analyzing the current status of discrimination in China and the laws that prohibit it, this Article adopts several methodologies, including interviews with lawyers and activists involved in discrimination issues, analysis of verdicts brought by victims of discrimination, sociological materials on social movements, and conventional methods for the excavation and interpretation of current (and annulled) Chinese law and regulation. An interdisciplinary approach permits reflection both on the nature of existing Chinese law and on the processes and people that have led to its reformulation and revision.
Part I briefly describes the historical context for the discussion and reviews competing concepts of employment discrimination as developed in the West.
Part II describes the most common--and perhaps the most serious--manifestations of employment discrimination in contemporary China. These manifestations can be overt: job advertisements openly express preferences or limitations based on gender, health status, age, height, household registration, and so on. The prevalence of discriminatory preferences in job advertisements reflects both the popularity of discriminatory attitudes and the impunity employers enjoy in screening candidates in this manner. Alternatively, more covert forms of discrimination are practiced in the selection process itself. Employers deploy a wide range of techniques to exclude women, hepatitis B carriers, and other disfavored groups (women under 5'2" or over thirty years old; men under 5'5" or over thirty-five years old). Medical examinations, photographs, CVs, written examinations, and other "objective" forms of documentation provide employers with the pretextual grist needed to weed out undesirable applicants. During the interview itself, employers may ask female candidates about their marital status and future plans for children. These processes produce distinctively discriminatory workspaces, which are reproduced and normalized in factories, stores, and offices.
Part III outlines the law of employment discrimination prior to the Employment Promotion Law. (3) It attends to laws that both promote and proscribe...