Anti-discrimination issues in the People's Republic of China (PRC) are separately contained in the PRC Constitution (which states that all citizens are equal in law); the PRC Labour Law (employees must not be discriminated against on the basis of nationality, race, gender, religious belief or other factors), as well as other laws and regulations.
The 2008 PRC Employment Promotion Law, the principal legislation governing the employment discrimination issues in China, outlaws discrimination against employees on the basis of gender; race; disability; being a carrier of communicable diseases; or being a migrant worker.
The Employment Promotion Law explicitly gives individuals the right to bring an employment discrimination claim against entities that violate these provisions.
Apart from these general anti-discrimination rules, there are certain laws or regulations addressing issues in relation to a specific type of discrimination. For instance, the Law on the Protection of the Rights and Interests of Women contains detailed rules concerning discrimination against women. The Law on the Protection of Disabled Persons and the Regulations on the Employment of Disabled Persons stipulate that disabled employees must constitute 1.5% of the total workforce of an employer and give other preferential treatment such as tax benefits to employers who go above that ratio.
Despite these anti-discrimination laws and regulations, in practice, however, there are few discrimination claims brought by individuals and fewer anti-discrimination enforcement actions taken by authorities or courts.
Ms Cao filed the first gender discrimination lawsuit in China in July 2012 after she found that a position she applied was only open to male applicants. Usually courts will accept a case within seven days after being filed. However, the local court took more than one year to accept the case; it was settled out of court in December 2013.
The main reasons for the current situation might be the lack of:
- detailed explanation and definition of employment discrimination. The PRC laws merely stipulate that certain types of discrimination are prohibited. They do not explain the discrimination or define unlawful behaviour. As a result, there is no clear standard or guideline for individuals to prove that they are being discriminated against;
- a specific body or authority responsible for dealing with complaints of employment discrimination. There is no governmental authority hearing and processing complaints of employment discrimination. In Ms Cao's case, she filed the complaint with several authorities, none of which appeared to address her concerns effectively;
- compensation for employment discrimination. Even though the Employment Promotion Law grants individuals the right to bring an employment discrimination claim against a company, the remedies are not specified. Therefore, it is quite difficult for individuals to prove their loss and in the absence of this, Chinese courts will not award compensation.