The Right to Work and Its Realization in China
—— Chinese laws concerning anti-discrimination of employment and
their development
Zhou Wei1
China is a country with surplus laborers. The large number of job-hunters in the labor
market leaves large space for the employers to choose their employees. Against this
background, the employers’ freedom in selecting laborers has been unlimitedly
increased. Their requirements for recruiting staff obviously include discrimination
clauses, which are even included in administrative regulations and rules of some
government departments. Therefore, how to use legal means to protect the laborers’
equal rights to employment and to fight against the discriminations from enterprises,
organizations and government institutions becomes an emerging challenge in the
development of Chinese laws. This article makes an analysis on the cases for which I
myself have provided legal aids in opposing employment discrimination in recent
years and try to evaluate the role of the cases in facilitating the establishment of a
legal system against employment discrimination.
1. anti- discrimination of employment has been included into the judicial protection
practices
In December 2001, the effort to fight against employment discrimination through
legal procedure was included into the judicial practices. One of my students, Jiang
Tao, a undergraduate student of the law school of Si Chuan University, has once seen
an ad which says that the ChengDou branch of the People’s Bank of China is
recruiting law students graduated from universities. Apart from the requirements
related to the post, it also listed the standard for one’s height: Only male above
1.68metres and female above1.60metres in height are qualified to be the candidates.
However, 30% of the male citizens in SiChuan province are no more than 1.65 meters
in height, which means that this is the normal height for male citizens in the province.
JiangTao was not qualified to be the job applicant because he tops only 1.65 meters.
He believes that as a government institution, the People’s Bank of China has infringed
citizen’s rights to equal employment with this requirement. Therefore he filed a suit
against the ChengDou branch of the People’s bank Of China and asked it to renounce
the unreasonable requirement in its ad. I took his case. We accused the bank of
violating the second paragraph of article 33 in the Constitution which says that all
citizens of the People’s Republic of China are equal before the law. Therefore, as a
government institution, the bank has violated the Constitution by its unreasonable
requirement for recruiting staff.
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School of Law, Sicuan University
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The next day after the court sent our complaint to the bank, that was three days before
the recruitment, it revised its requirement for recruiting staff in the ads. of local media
and the internet by withdrawing the previous height limit and sending a message
through the court and other channels to the accuser that he was expected to register as
a job applicant. As a matter of fact, the accuser has won the case till then. However, in
order to promote the improvement of the legal system against employment
discrimination, the accuser continued to file the legal action according to the relevant
rules in China’s Administrative Procedure Law. The aim of this action was that the
employment discrimination which is a common phenomenon in society should be
further punished by the law. Finally, the court held that the accuser’s right to be a job
candidate wasn’t infringed after the accused had renounced its previous height
requirement. Therefore, the court dismissed his accusation. From then on, the case
was widely reported by CCTV and other local medias. Some famous legal experts
wrote articles and discussed the case in order to support his accusation and make
thousands of laborers aware of protecting their rights to employment through legal
procedures when they encounter employment discrimination. Following this case,
some local courts such as the court of WenZhou in ZheJing province have taken
several cases of this kind. I myself have also provided legal aid for people writing
letters to me asking for help.
2.、the practice of anti- discrimination employment has promoted the reform of
Chinese legal system
In China, the employment discrimination comes both from government regulations
and from enterprises, state-owned institutions such as schools and research
institutions, etc. For example, local governments in 30 provinces state explicitly in
their official document that HBV carriers cannot be employed as civil servants. This
regulation is unreasonable because it has ignored 120 million HBV carriers’ rights to
employment. As a result, in the first half of 2003, a college graduate from ZheJiang
Agriculture University named ZhouYichao killed two government employees
responsible for recruiting civil servants after he was turned down for being a HBV
carrier during the physical check-up despite his excellent performance during the
previous examination and interview. Finally, he was sentenced to death penalty
according to the law. This case has aroused great attention of government at various
levels, organizations and people for fighting against employment discrimination. In
addition, some HBV carriers and legal experts began to resort to legal procedures in
order to abolish the unreasonable regulations of this kind.
In the second half of 2003, a university graduate named ZhangXiangzhu in Wuhu city,
Anhui province was also denied the rights to be civil servant for being a HBV carrier
during the physical check-up although he got the highest mark in the examination and
interview among 30 candidates. He filed an action bravely. As his agent, I provided
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him with free legal aid. He won the support of the whole country and the case become
one of the most important cases in safeguarding citizen’s rights in 2003. Finally, the
court decision supported the complaint of the accuser and decided that the accused
does not have adequate evidence to turn down the accuser in the recruitment. This
case is unprecedented because never before had the court accepted the cases
concerning employment disputes in China, for the recruitment of civil servant is
beyond the jurisdiction of the court in the past. This means that the government
beviour of this kind is also under the judicial review of the court.
Following this case, some other courts of China has also accepted cases of this kind.
At the same time, the Ministry of Public Health and the Ministry of Personnel for the
first time published the General Standard for the Physical Check-up of the
Recruitment of Civil Servants (trial) and take it as a unified check-up standard for
recruiting civil servants in China. This standard was released to the public for
comments and then adopted nationwide. The new standard doesn’t list the
requirement for candidates’ height which existed in some local regulations in the past.
The standard also says that any government department should not turn down the job
candidate who is an HBV carrier or whose HCV test is positive while his liver
functions well. From this we can see Chinese laws has responded to people’s strong
voice against employment discrimination and abolished the relevant regulations in the
past. By these case practices, we have promoted China’s legislation process in
safeguarding the legitimate rights of citizens and abrogating employment
discrimination.
3. laborers should actively fight against employment discrimination so as to jointly
promote the improvement of Chinese legal system development
In China, besides the apparent job discrimination, there also exist concealed ones
which tend to be difficult issues in the legislation and law enforcement of China. In
my opinion we need to not only carefully handle the problem of apparent employment
discrimination in legislation, but also help the employesr to realize that employment
discrimination is against the law and will be punished by the law. To achieve this, we
need more judicial practices. Under the current framework of the judicial system of
China, it is of great importance to strengthen the judicial practice and judges’ ability
in handling cases by legal means. Meanwhile, we should also step up our efforts to
urge the employers to withdraw the discriminatory provisions.
As the concept of opposing employment discrimination spread widely, some laborers
become increasingly aware of their rights to work and welfare and fight against illegal
behaviors like job discrimination. This is also a new phenomenon in protecting
citizen’s rights to work and employment. Here I will illustrate the progress in this
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regard by taking my own experience in providing legal aid for laborers to fight against
employment discrimination and find jobs as an example.
First, some state owned public institutions show discriminations to health conditions
of laborers. At the very beginning of this year, a job applicant was turned down by a
state owned public institution in Jiangxi province in the recruitment because he failed
to meet the health standard in the check-up although he ranked the first in the exam.
Being replaced by another candidate and taking this as a discriminatory check-up , he
resorted to me for legal aid and filed a legal action against the institution. After the
mediation of the court, the accuser agreed not to work in the institution provided the
institution compensated him for part of his losses.
Second, in May this year, a post graduate from the law school of Renmin University
was turned down by the Department of Personnel in Shanghai municipality when he
applied for a job in the Bureau of Justice of Shanghai because he is so short-sighted
that his dioptry for naked vision is -1000 although he passed recruitment exam. After
receiving my legal aid, he asked the Ministry of Justice for an administrative review.
Then the Ministry of Justice investigated Shanghai Bureau of Justice about the case.
Although the Ministry of Justice thought this case is beyond the scope of
administrative review, the Department of Personnel in Shanghai municipality realized
that its behavior had violated the law. Finally, it tried to find the accuser and agreed
that his mark in the exam will be available in the next recruitment in the second half
of this year without the limitation of his eyesight.
Third, a postgraduate majored in law from Xiamen University encountered the similar
problem. He was turned down by a government institution because he failed to meet
the check-up standard. That was nothing but an excuse. The real reason was that he
was considered too old for the job. With my legal aid, he contacted Fujian provincial
Department of Personnel and asked it to correct the discriminatory behavior of the
government institution. After receiving the complaint, the Department of Personnel in
the province paid great attention to the case and corrected the wrong doings by giving
him another chance for check-up.
Fourth, in this June, an overseas Chinese student with a doctorate degree applied for a
job as a teacher in a prestigious university in Beijing. He was considered qualified to
teach in the university after the assessment of the relevant department. However, the
university refused to go through the procedures of employment for him because he
was considered failing to meet the health requirement during the physical check-up.
In July, after receiving my legal aid, he applied for administrative review to the
Ministry of Education under the State Council. Although the Ministry dismissed his
accusation for the reason that the recruitment of teachers by a university isn’t an
administrative behavior, but a civil behavior of an equal subject, it asked the
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university to handle the issue cautiously. In August, after the accuser filed an action to
the court, the university contacted the accuser, consulted with him and appointed him
to another post of the university. From this we can see that the university made
compromise at last and was aware that its behavior had violated the law. At present,
the case is still under the relevant legal procedures. This case has put up a question
concerning China’s law, that is, if the job candidates of the state funded universities
disagree with the recruitment behavior of the university, how can they seek legal
protection? The laws in China still can’t answer this question explicitly. Therefore, we
hope that through this case, we can accumulate experience in providing legal aid for
the similar cases and for millions working in the public institutions.
Fifth, in this august, four university graduates passed the examination for recruiting
police held by the Public Security Department of Hainan province. However, they
were turned down for being suspected as HBV carrier, weak-sighted, urine test being
positive and suffered arteriectasia. The students believe that they are healthy enough
to take the post of a police and a computer operator. Moreover, there isn’t necessary
connection between the applied posts and the results of their body check-up.
Therefore, they believe that the relevant health requirements in the Check-up Standard
of Recruiting Police jointly issued by the Ministry of Personnel and the Ministry of
Public Security under the State Council violate the regulations concerning citizens’
rights to work in the Constitution and Labor Law. At present, the case is accepted by
the local court and in the proceedings. The significance of this case lies in that if the
official documents of the government especially those concerning the health
requirement for recruiting civil servants is suspected to limit citizens’ rights to work,
there should be reasonable basis and necessary. People weren’t aware of this before.
4.other cases concerning anti discrimination of employment and relevant studies
The above cases are cases for which I myself have represented or provided legal aid.
In fact, there are many other cases relating to anti discrimination of employment
throughout China. These cases include those concerning the discrimination of
people’s appearance( e.g. height, facial feature), gender discrimination(e.g. female
citizen’s pregnancy, illness, marital status
etc.), discrimination of people’s
identity( e.g. migrant workers and laid-off workers), regional discrimination( the
household registration system, urban and rural areas), discrimination of people’s
educational background( high academic degree irrelevant to post requirement)
Some of these cases were released by the media, resulting in profound reflection by
the whole society; some were settled through China’s labor dispute arbitration
procedure; some were settled by the court decisions which have punished the behavior
of employment discrimination. By spreading the concept of opposing employment
discrimination, these cases have aroused intense attention from the society to
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respecting and safeguarding laborers’ rights to employment and stimulated the effort
of relevant government institutions to gradually establish a legal system of
safeguarding citizen’s rights to work and employment. With changes of concept in
society, these cases have, to some extent, promoted the improvement of Chinese legal
system in this field.
These cases have also made scholars study these problems from legal perspective.
The scholars try to do research on the legal system including administrative laws and
regulations and official documents and find how to modify, abolish or improve them
so as to render legal support to fighting against employment discrimination.
Meanwhile, they urge the state to formulate laws in fighting against employment
discrimination. For example, from 2004, cooperating with the Human Rights
Research Institution with Oslo University in Norway, the professors from law school
of Beijing University, Renmin University and Sichuan University have jointly carried
out investigations and researches into the challenges and status quo of the rights of
HBV carriers to employment and the legal system concerning employment
discrimination in the central and western region of China. This will further facilitate
the state to improve its legal system in this field.
Meanwhile, in 2003 and 2004, in response to this issue, some NPC members put
forward the relevant proposals . Some members of the national committee of the
CPPCC have also put forward proposals to CPPCC, urging the state to formulate laws
and regulations to protect laborers against the employment discrimination and to
accelerate legislation process so as to establish a legal system in this field. Therefore,
We have every reason to be confident that as the amendment of clause to the
Constitution which says the state should respect and safeguard human rights is
implemented, China will make new progress in fighting against employment
discrimination by establishing and improving its systems and laws or making relevant
policies.
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