China Law and Governance Review
    A Publication of China Law and Development Consultants
June 2004 Issue No. 2   
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Main Feature

Voices against Discrimination: Chinese Citizens Challenge Discriminatory Regulations and Practices

In April 2003, Zhou Yichao (周一超), a college graduate from Jiaxing, Zhejiang Province (浙江省嘉兴市) walked into a government office and attacked two officials in charge of hiring civil servants, killing one and injuring another. Zhou had successfully passed the city’s civil service qualification examination but later learned that he was being rejected because he had tested positive for Hepatitis B. Zhou was sentenced to death in September 2003. (Xinhuanet 新华网, September 5, 2003) During his trial, nearly 4,000 people, most of whom HBV carriers, petitioned the court for leniency. (China Newsweek《新闻周刊》, December 18, 2003) Zhou was executed on March 2, 2004. (Xinhuanet, March 3, 2004)

According to experts, approximately 60% of the population in China has been exposed to the Hepatitis B virus (HBV) and over 120 million people or 10% of the population are either carriers of the HBV or are infected by the virus. (Beijing Youth Daily《北京青年报》, December 18, 2003) HBV is primarily transmitted by blood and blood products, through sexual contact and from mother to infant. Only those who are acutely or chronically infected exhibit symptoms of the disease; other carriers pose no threat to people around them. However, because there is currently no cure for Hepatitis B and many Chinese continue to believe that it can easily spread, HBV carriers face many types of discrimination in their education, marriages and most notably in employment. Despite guidelines issued by Chinese health authorities allowing HBV carriers (as opposed to those who are infected by the virus) to work in industries other than food services and nursery schools (Regulations on the Prevention and Control of Viral Hepatitis《病毒性肝炎防治法规》(1984)), they are virtually excluded from most low-level government civil service positions and from employment in more established state and private companies.

As of 2003, all of China’s 31 provinces, municipalities directly under central government control and autonomous regions required physical examinations for all applicants of entry-level civil service positions. Twenty-eight rejected all those who tested positive for HBV; the remainder accepted only those HBV carriers who were non-infectious. (China Newsweek, November 14, 2003) Similar practices are also widespread outside the government. In Suzhou, Jiangsu Province (江苏省苏州市), over 2,000 Chinese and foreign companies located in the Suzhou Industrial Park (苏州工业园) utilize a central medical facility to screen out job applicants with HBV. Once an applicant is tested positive, the information is shared among all companies, most of which refuse to hire HBV carriers. (China Newsweek, December 18, 2003)

The discrimination faced by HBV carriers is hardly the only type of discrimination practiced by Chinese employers: gender, age, place of household registration, and even height and weight are commonly taken into consideration in hiring and dismissal decisions.

While such discrimination has occasionally been noted and questioned, Chinese have long accepted it as a matter of course and as something that they could do little to change. China’s labor market, in which demand for jobs far outstrips supply, means that employers get to call the shots. In November 2003, nearly 10,000 people applied for 600 civil service positions offered by the Beijing municipal government (Beijing Evening News《北京晚报》, November 13, 2003) while 36,000 applicants vied for 7,900 civil service positions in the central government and other state-level government offices (Beijing Morning Post《北京晨报》, November 3, 2003). For rural migrants from poorer regions, almost any job is acceptable. To make things worse, workers and job applicants have few places to turn to for redress against discriminatory practices. Although Article 12 of China’s Labor Law 《劳动法》expressly prohibits discrimination based on race, nationality, sex and religious belief, no other laws or regulations exist for enforcing such anti-discrimination provision. Nor is there any mechanism for victims of employment discrimination not specifically prohibited by law to seek any legal remedy. Few lawyers are willing to take on what they view as a quixotic attempt to challenge well-accepted discriminatory practices. Under such a market and legal climate, government agencies as well as employers from state-owned enterprises and the private sector routinely and openly engage in discriminatory hiring and dismissal practices without a second thought.

One need to look no further than the information required in a typical job application form to understand the extent of the problem: name, sex, age, ethnicity, education, place of birth, family background, height, health, work experience, plus a picture of the applicant—each could be used and has been used by Chinese employers as grounds for discrimination. An anecdote widely circulated in the Chinese press describes an able young job applicant who was refused a job because her last name was Pei (裴), which in Chinese has the same pronunciation as the word for losing money (陪). Bellow is a closer look at some of the areas where widespread employment discrimination exists today.

Gender. Despite the express prohibition against gender discrimination under the PRC Labor Law, discrimination against women is among the most flagrant in China’s job market. The government itself continues to maintain different retirement ages for male and female civil servants. The long-standing government policy of “equal pay for equal work” (同工同酬) for men and women, which had propelled a high percentage of Chinese women into the workforce, has not stopped women from being forced out of failing state-owned enterprises at a higher rate than men. According to a report entitled “China’s Unemployment Problems and Employment Strategies” (中国的失业问题与就业战略) by well-known Chinese economist Hu Angang (胡鞍钢) in 1998, women accounted for 60% of the workers who lost their jobs at China’s state-owned enterprises.

For the younger generation, the entry barrier for female college graduates seemed to have received the most media attention. During each hiring season, reports such as the following Xinhuanet story begin to surface: a job fair in Beijing for female college graduates was cancelled when only five companies accepted the invitations sent out to 500 companies nationwide. According to the event’s sponsors, many of the companies contacted openly declared their unwillingness to hire female graduates. (December 24, 2002) According to a 2002 survey by the Jiangsu Province Women’s Federation (江苏妇联), 80% of the female college graduates surveyed experienced discrimination during their job search and 34.3% had experienced multiple rejections by potential employers. (Chinanews.com 中国新闻网, October 6, 2002) The same survey also showed that given the same qualifications, the hiring rate of male graduates was 8% higher than that of the female graduates. At the Capital Normal University (首都师范大学) in Beijing, 70% of the 2003 graduates who had not found jobs by August that year were women. Those fortunate enough to land jobs reported more difficult job searches than men and many had to settle for less desirable positions. As a result, more women now choose to remain in school to pursue higher degrees. (Xinhuanet, August 26, 2003) Many employers justify their discriminatory practices on the ground that the child-bearing age of young women increases labor costs and that “females in general are less creative and aggressive than men”. (Xinhuanet, December 24, 2002) Some employers even require young female graduates to agree not to have children within a number of years after their hiring. (Chinanews.com, July 15, 2003)

Residency. China’s household registration system (户籍制度), under which all citizens are assigned either a rural or urban resident classification based on their parents’ origin, has effectively relegated the millions of rural men and women who have migrated to cities seeking work to second class status. While they are eagerly recruited—and exploited—for work in the construction and hygiene industries and other low-paying manual labor jobs, they are banned from most other occupations. For example, in 1996, the Beijing Labor Bureau (北京劳动局) issued a directive under which only 12 out of 204 listed occupations in Beijing were open to migrant workers. Beijing had since issued new directives each year to further limit the types of occupations open to migrants. (China Financial Times《中国经济时报》, January 10, 2003)

In addition, state benefits which are taken for granted by urban workers—education through high school, medical care, unemployment insurance—are not available to migrant workers or their families during their stay in cities. As Zhang Shuguang (张曙光), Executive Director of the Unirule Institute of Economics (天则经济研究所), a leading independent think-tank in Beijing pointed out, the household registration system has “created two different pay scales in the labor market of urban and economically developed areas. On the one hand is the labor market for locals, which, in addition to wages, provides housing, social security, education and training. On the other hand is the labor market for migrant workers, which does not provide any benefits other than wages. Despite the repeated increases in wages and benefits for urban workers, the migrant workers’ wages and benefit status remain unchanged. (“From Free Movement of Labor to Freedom of Movement for the Population”《从劳动力自由流动到人口自由迁徙》, March 10, 2002, www.unirule.org.cn)

Age. In today’s job market, age discrimination is no longer reserved for China’s old. Thousands of middle-aged workers who have been laid off from failing state-owned enterprises now must seek reemployment. Many employers, however, are only willing to consider much younger job applicants. According to one study, 82% of the employers surveyed imposed an age requirement of 35 and below. Only 1% of them did not impose any age requirement. (Source: The Top Tens of 2003《十破惊天2003》, the Beijing Publishing House (北京出版社), 2004). Even agencies under China’s central government impose age limits for their civil service positions. For the 2004 civil service recruiting season, the age requirement for positions at various central government agencies ranged from 22 to 35. (China Financial Times, January 14, 2004) According to statistics published by the Beijing Statistics Bureau (北京市统计局), 38% of the city’s 3,840,000 unemployed in 2000 were between the ages of 35 to 44, making it the single largest age group among Beijing’s unemployed. That percentage increased to 40% in 2002. (Chinanews.com, July 24, 2003)

Height, Weight and Physical Appearance. The tales of two young women recently ignited much debate in the Chinese press about employment discrimination based on one’s physical attributes: A Tianjin (天津) woman underwent plastic surgery to improve her appearance after being rejected by more than 1,000 potential employers during her ten-year job search (Xinhuanet, July 31, 2003). In Wuhan (武汉), a college graduate who had been rejected by 10 potential employers decided to include a sexy picture of herself in her future job applications (Wuhan Morning Post 《武汉晨报》, November 23, 2002). Should employers be allowed to discriminate on the basis of an applicant’s physical attributes? Why not? Most of the same local governments that reject HBV carriers from their civil service positions also impose height and weight requirements. In Anhui Province (安徽省), males must be no less than 160 cm (5 ft. 3 in.) in height and weigh no less than 50 kilograms (110 pounds) and females must be no less than 152 cm (5 ft.) in height and weigh no less than 40 kilograms (88 pounds). Hunan Province (湖南省) requires its male civil servants to be at least 160 cm (5 ft. 3 in.) in height and weigh no less than 45 kilograms (99 pounds) and females to be above 150 cm (4 ft. 11 in.) in height and weigh no less than 40 kilograms (88 pounds). (Sources: China Financial Times, April 8, 2003 and February 13, 2004) In 2003, the personnel bureau of Yiyang (益阳市), Hunan Province became well-known for rejecting a man who received the highest score in its civil service qualification exam but fell short of its height requirement by 5 millimeters (0.2 in.). (Qianlong.com 千龙网, October 7, 2003)

Fighting Back: Legal Challenges against Discriminatory Regulations and Practices

In an indication of how profoundly Chinese society is changing, voices are now being raised against discrimination. Over the past year, there has been widespread and sympathetic media coverage of individuals and groups who have been subject to some form of discrimination. Direct questioning of the laws and policies that treat migrant workers unequally from urban residents has appeared. Even subtle changes to the official language that could be considered derogatory to certain sectors of Chinese society are being introduced: the term “外来人口” or “population [people] from outside” (usually translated as “migrant workers” in English), has been officially discarded for “流动人口” (“floating population”).

This new questioning of discrimination, coupled with growing rights consciousness, has even given rise to citizens taking legal action to challenge discriminatory regulations and practices. In spite of the lack of law to strike down discriminatory practices or to provide remedies from unequal treatment, a handful of determined citizens and lawyers have began fighting back against some of the more egregious discriminatory hiring practices of government agencies by filing administrative adjudication suits against them. Under China’s Administrative Adjudication Law《行政诉讼法》 (1990), citizens have the right to bring lawsuits (行政诉讼案) against government bodies for violating the law or procedures. Such efforts have made “more and more people realize and understand that the best way to promote social progress and protect basic human rights is not necessarily in making dramatic appeals as a group, but in repeatedly insisting on personal freedom one case at a time and fighting over every detail.” (China Newsweek《新闻周刊》, November 24, 2003) The intense media coverage these lawsuits received in China has already led to changes outside the courtroom: a number of local governments have either revised or dropped their discriminatory requirements with respect to height, weight and HBV status from their civil service hiring regulations.

In January 2003, Jiang Tao (蒋韬), a recent graduate of Sichuan University (四川大学) brought an administrative action in Chengdu, the capital of Sichuan Province (四川省成都市) against the Chengdu Branch of the People’s Bank of China (中国人民银行成都分行) for height discrimination. Mr. Jiang, who is 165 cm (5 ft. 5 in.) in height, alleged that the bank’s 168 cm (5 ft. 8 in.) height requirement for male applicants precluded him from applying for a civil service position at the government bank, therefore violating his constitutionally-protected equal rights to be employed by a government agency and his political right to participate in the management of state affairs. The case was tried in April 2003. Although the plaintiff’s claims were rejected by the court, the defendant bank abandoned the height requirement soon after the lawsuit was filed, most likely as a result of the adverse publicity generated by the case. (Beijing Youth Daily, December 20, 2003) According to the plaintiff’s lawyer, Professor Zhou Wei (周伟) of Sichuan University Law School (四川大学法学院) and Shanghai University Law School (上海大学法学院), the height discrimination case represents the first time that a Chinese court has accepted a lawsuit explicitly based on a constitutional rights claim. (Procuratorial Daily 《检察日报》, April 28, 2003) (In Qi Yuling vs. Chen Xiaoqi (齐玉苓控告陈晓琪案), the 2001 case widely described as China’s first constitutional rights case, the plaintiff’s constitutional right to education was one of several bases for her claim. The final court decision did not directly uphold the right, but ruled that violation of the right was grounds for compensation.)

In another case, a contract worker who had been working at the Shenzhen State Tax Bureau (深圳国税局) for seven years was rejected for a permanent position despite having passed the civil service qualification examination because she failed to meet the height requirement set by the Guangdong Province Personnel Bureau (广东省人事厅). In February 2003, she filed an administrative suit with the Futian District People’s Court (福田区人民法院) in Shenzhen against both the Guangdong Province Personnel Bureau and the Shenzhen State Tax Bureau alleging height discrimination. The court refused to consider her case, stating that the “hiring and firing practices of state agencies are not within the court’s jurisdiction over administrative adjudication suits and that the plaintiff had provided insufficient evidence to establish her claim. In February 2004, the Shenzhen Municipal Intermediate People’s Court (深圳市中级人民法院) turned down her appeal, stating that the “recruitment of civil servants pursuant to certain hiring standards is part of the internal personnel management of a state administrative agency” and that “any claims arising from such administrative function is outside the jurisdiction of the People’s Courts over administrative adjudication suits”. (Source: New Beijing Daily《新京报》, February 10, 2004) Notably, Guangdong subsequently dropped the height requirement from its civil service hiring regulations.

A third height discrimination case was brought by a woman who fell short of the civil service height requirement in Zhejiang Province. The Anji County People’s Court (安吉县人民法院), where the plaintiff filed her administrative suit, refused to consider her case. (People’s Daily《人民日报》, March 31, 2003) Yet, in February 2004, Zhejiang also dropped the height requirement from its civil service health examination standards. (China Youth Daily《中国青年报》, February 2, 2004)

The most high profile employment discrimination case to date was brought by an HBV carrier in November 2003 in Wuhu, Anhui Province (安徽省芜湖市). The plaintiff, 25-year old college graduate Zhang Xianzhu (张先著) , received the highest score in the Wuhu civil service qualification examination but was rejected because he had tested positive for HBV. Unlike the Zhejiang graduate whose nearly identical rejection due to his HBV status drove him to violence (see story at beginning of this article), Zhang filed an administrative suit with the Xinwu District People’s Court (新芜区人民法院) in Wuhu, alleging that the ban against HBV carriers was a discriminatory practice which violated his constitutional rights of equality and political participation. (Beijing Youth Daily《北京青年报》, November 14, 2003)

Zhang’s case, which was tried in December 2003, received national media attention. Public interest in the case stemmed in part from the fact that Zhang was supported by a virtual community of well-educated HBV carriers who met through the Internet. These supporters sought to use Zhang’s case to organize and change the fate of China’s 120 million HBV carriers. According to a report by China Newsweek, Zhang met his supporters as soon as he posted his story at an online bulletin board system “www.hbvhbv.com” (肝胆相照, the “HBV BBS”) which was founded by HBV carriers as an online support group and boasted 12,000 registered users by the end of 2003. (December 18, 2003) They urged him to seek legal remedies, gave advice on his litigation strategies, contacted the media and called on fellow HBV carriers to show their support by attending Zhang’s trial. Through the HBV BBS, Zhang’s supporters also organized and submitted a petition signed by 1,611 HBV carriers to China’s National People’s Congress (全国人民代表大会), requesting a constitutional review of all existing government regulations which excluded HBV carriers from the ranks of the civil servants and calling for the enactment of special legislation aimed at protecting China’s HBV carriers from employment discrimination. (New Beijing Daily, November 26, 2003)

Behind Zhang’s case was also Professor Zhou Wei, the constitutional law scholar who represented the plaintiff in China’s first height discrimination case. According to one report, Professor Zhou, who had contacted Zhang through the HBV BBS to offer him free legal representation, had been actively searching for a “ground-breaking” HBV discrimination test case in the area of civil service hiring practices. (Chengdu Evening Post《成都晚报》, November 29, 2003) During trial, Professor Zhou argued that the government regulations which the defendant relied on to reject HBV carriers for civil service jobs violated the provisions under the PRC Constitution (宪法) which guaranteed equality for every citizen before the law (Article 33) and granted every person the political right to participate in the affaires of the state (Article 2) as a civil servant. (Chengdu Evening Post, December 20, 2003)

Publicly, Professor Zhou downplayed the importance of the outcome of the case, emphasizing that the Wuhu court’s decision to be the first in the nation to even consider the HBV discrimination case was far more significant. (Chengdu Evening Post, December 20, 2003) Several articles and newspaper interviews by Wang Yi (王怡), a legal scholar at Chengdu University (成都大学) in Sichuan who had been close to the case, provide some insights into the legal impact that Professor Zhou hoped to achieve. According to Wang, the primary goal of the case was to push for expanding the application of a judicial interpretation (司法解释) issued by China’s Supreme People’s Court (最高人民法院) in 2001. In it the nation’s highest court advised a provincial-level high court to invoke provisions of the PRC Constitution in its adjudication of a civil case involving alleged violations of the plaintiff’s right to education (the “Right to Education Interpretation”). Specifically, Wang contended that the HBV case would achieve its highest value if the Wuhu court would rule on the legality of the Anhui civil service physical examination standards on constitutional grounds, thereby (1) extending the application of the constitutional principles beyond civil cases to administrative adjudication suits and (2) bringing the spirit of the high court’s directive to the lower level courts’ decision-making. Alternatively, if the court chose to avoid invoking the constitutional provisions and rule instead on the legality of the Anhui civil service physical exam standards based on existing central government-issued laws and regulations, it would still open the door for meaningful judicial review of regulations issued by local governments. (Sources: China Newsweek, November 24, 2003; New Beijing Daily, November 15 and November 17, 2003; and Chengdu Evening Post, November 29, 2003)

On April 2, 2003, the Wuhu court issued its judgment, in which the court affirmed the validity of the government regulation while ruling that the decision by the defendant to refuse hiring the plaintiff based on his HBV status lacked sufficient evidence. The court refused to grant Zhang’s request to be reconsidered for the civil service position, citing conclusion of the recruitment season. (Beijing Youth Daily, April 3, 2004) The plaintiff’s lawyer expressed satisfaction with the outcome, stating that it “demonstrated the judiciary’s concern for human rights” and that it set a precedent for expanding the scope of judicial review to administrative lawsuits, even though the Anhui court failed to invalidate the discriminatory government regulation on constitutional grounds. (Procuratorial Daily, April 5, 2004) For reactions from the HBV community about the court’s ruling, see the “Heard on the Web” column of this issue. While the case was pending, two provinces revised the HBV screening standards of their civil service hiring regulations: In Zhejiang Province where a rejected HBV applicant attacked two civil service hiring officials in 2003, HBV carriers who are tested non-infectious are no longer excluded. Hunan Province also announced similar changes. (Source: China Youth Daily《中国青年报》, February 2, 2004 and Xinhuanet, April 2, 2004)

The significance of HBV discrimination case, aside from its outcome and the changes it brought along, also lies in the litigation strategy of Professor Zhou Wei, a pioneer of anti-discrimination litigation in China. Zhou is among an increasingly vocal group of Chinese legal scholars and practitioners who, encouraged by the Supreme People’s Court’s Right to Education Interpretation, are trying to develop a mechanism for upholding constitutional rights and reviewing the constitutionality of laws through the court system (宪法司法化). Knowing that both the Sichuan height discrimination case and the HBV discrimination case presented the legal challenge of lacking specific laws prohibiting discrimination against civil service applicants, Professor Zhou pushed the envelop by asking the courts to directly invoke constitutional principles in deciding rights violations and to review the legality of the government’s rules and actions on constitutional grounds. Such ground-breaking efforts, although fascinating to Chinese and Western observers, face formidable obstacles in the current Chinese political and legal environments. One such hurdle is the legal difficulty posed by the limited power of judicial review in administrative adjudication suits. Under the Chinese Administrative Adjudication Law, a court may either confirm or reverse the government’s “concrete administrative actions” (具体行政行为) (Article 54) but has no authority to review “abstract administrative action” (抽象行政行为), defined as “administrative rules and regulations or decisions and decrees issued by administrative agencies with general binding authority” “行政法规、规章或者行政机关制定、发布的具有普遍约束力的决定、命令” (Article 12). Although some legal experts have argued that the PRC Law on Legislation (立法法), enacted in 2000, leaves room for court to review regulations issued by local governments which are below the level of “administrative regulations” issued by the central government and to disregard such regulations when they conflict with national-level laws, Chinese courts have been reluctant to adopt such an interpretation. The courts in Shenzhen and Zhejiang in the two height discrimination cases apparently took the cautious approach by refusing to consider the cases on jurisdictional grounds. The courts’ reluctance seems well justified. In 2003, a judge from Hunan Province (湖南省) almost lost her job for ruling that a local regulation conflicted with a national law. (See story in the “Case Files” column of this issue.)

The introduction of constitutional adjudication is more difficult in a country where the nominally-elected National People’s Congress, not the courts, is vested with the ultimate power of constitutional review and interpretation. Even though the Supreme People’s Court Right to Education Interpretation was careful in limiting the concept of constitutional adjudication to the application of the relevant constitutional provisions in rights cases and not judicial review of the constitutionality of government rules and regulations, it has been criticized by some as incorrect, unnecessary and bordered on “judicial power-grabbing” (司法抢滩). (“Misleading Discourse of ‘Constitutional Adjudication’?—Discursive Dilemma of “Constitutional Adjudication” and Constitutional Dilemma of Transformative State” “宪法司法化的“误区”?—从“宪法司法化”的话语悖论看国家转型的宪政悖论” by Jiang Shigong (强世功), 2002) As one law professor pointed out, adopting a system of constitutional review of administrative regulations by the judiciary would mean “transferring the power of constitutional supervision and implementation which is currently held by the National People’s Congress and its Standing Committee as well as the power of constitutional interpretation which is held by the Standing Committee of the National People’s Congress to the Supreme People’s Court. This in turn means that the highest adjudication authority would obtain the same or equal constitutional status as the organ which holds the ultimate state authority. In essence, this would mean a fundamental change in our country’s political system. This is no longer a question of whether [we] have the ‘courage and determination to boldly overcome traditional concepts and ideas’, but a question of whether we should fundamentally break out of the existing constitutional framework.” (“The Rights and Wrongs of ‘Constitutional Adjudication’—A Few Problems Arising from the Study of the Applicability of Constitutional Adjudication” ‘宪法司法化’引出的是是非非——宪法司法适用研究中的几个问题’ by Tong Zhiwei (童之伟), Chinese Lawyer《中国律师》, December 2001 issue)

Whether or not China’s legal system is able to break out of the existing constitutional framework will determine whether its citizens, including those who are facing employment discriminations, would have any meaningful way of realizing the rights bestowed upon them by law. In the words of one commentator, “To guarantee citizen’s rights, [we must] not only write such rights into law; more importantly, we must implement mechanisms to prevent and redress any violations of such rights. … Rights without guarantee are worthless. We need to strengthen our effort to perfect mechanisms for [challenging] violations of rights. Only then will the rights of citizens be more than rights on paper”. (China Youth Daily, October 17, 2003, a portion of the preceding quote was translated by Keith Hand, China Rule of Law Developments VII, November 14, 2003)

 

 


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