Yu Zhi October 19 2022 Does differential treatment constitute employment discrimination? JunHe LLP | Employment & Immigration - China Yu Zhi Employment & Immigration IntroductionFactsDecisionIntroductionEqual employment is a fundamental right of employees under Chinese law. In December 2018, the Supreme People's Court added a new civil cause of action, "disputes over equal employment rights", to the category of "disputes over general personality rights". This new civil cause of action took effect on 1 January 2019. Employees who believe that they have been discriminated against during their employment can now directly file a lawsuit without going through labour arbitration.While some types of employment discrimination (eg, rejecting a candidate during recruitment based on their birthplace or terminating female employees on account of their pregnancy) can be identified directly, the question of whether certain types of differential treatment constitute employment discrimination lacks clarity in judicial practice.FactsIn a case released in 2022 heard by the Beijing Chaoyang Court,(1) the plaintiff claimed that she had experienced employment discrimination because of:the fact that her employer had arranged a business trip during her pregnancy;an adjustment in her job position; andhow her sick leave had been managed.DecisionIn the judgment, the Beijing Chaoyang Court adopted a two-step test to review whether the employer's actions constituted employment discrimination.The Court held that the right of equal employment is a basic right entitled to employees during the performance of their employment contract. From the perspective of civil tort liability, employees' equal employment rights come under the category of general personality rights. Whether employees' equal employment rights have been infringed should primarily be assessed based on whether the individual's human dignity has been infringed.The Court reviewed whether the employee's dignity had been infringed in this case using a two-step test:first, whether there had been differential treatment; andsecond, whether such differential treatment lacked a reasonable basis and was prohibited by law.With regard to the plaintiff's specific claims about her employer, the Court held as follows:The arrangement of business trips did not constitute differential treatment and thus did not constitute employment discrimination. Although the plaintiff had been required to travel during her pregnancy, the plaintiff had not proved that:the arrangement violated any laws or her labour contract; orthe defendant had never arranged business trips for other pregnant employees.The Court pointed out that the plaintiff herself had not objected to the business trip during her pregnancy.The establishment of a brand marketing department and the subsequent office adjustment did not constitute differential treatment. The defendant's internal organisational and personnel adjustment was not limited to the plaintiff alone. The defendant was entitled to have operational autonomy under the law. Setting up new departments was a legitimate business operation. The plaintiff's evidence failed to prove that the defendant's treatment of her lacked a reasonable basis.The management of the plaintiff's sick leave did not constitute employment discrimination. The defendant was entitled to exercise independent personnel management rights according to the law. Because of the plaintiff's repeated sick leave applications, the defendant had requested to review the plaintiff's hospital diagnosis certificate and other reasonable documents. The Court held that this was in line with general personnel management in the market.The late payment of salaries and maternity allowance due to the previous litigation progress also did not constitute employment discrimination. Disputes regarding the amount of maternity allowance and related salaries had been settled by another lawsuit between both parties. The late payment of any amount caused by the lawsuit should be considered the regular time cost of the lawsuit.The Court admitted that conflicts had arisen due to the defendant's personnel management, which, in some cases, lacked flexibility. Nevertheless, the Court held that whether the defendant's behaviour constituted discrimination would not be measured based on the plaintiff's personal feelings and perceptions, but should be measured based on a general and reasonable standards and perceptions, sufficient evidence and clear legal provisions. The Court considered the legal provisions of equal employment rights, the elements of torts, the facts and rules of evidence, the routine experience and other factors, and held that it was not sufficient to determine that the defendant had infringed the plaintiff's equal employment rights. The case was thus dismissed.For further information on this topic please contact Yi Zhu at JunHe by email ([email protected]). The JunHe website can be accessed at www.junhe.com.Endnotes(1) (2019) Beijing 0105 Civil First No. 3496.