China Law and Governance Review
    A Publication of China Law and Development Consultants
December 2006 Issue No. 3   
Home/
Current Issue
 
Main Feature
   
Legal Reform
   
Governance
   
Case Files
   
Heard on the
Web
   
Print Edition (PDF)
   
Past Issues
   
About Us
   
Contact Us
   
Subscription
Case Files
Notable Legal Cases

Voices against Discrimination: An Update of Recent Cases and Developments

In the June 2004 issue, we featured an article entitled “Voices against Discrimination: Chinese Citizens Challenge Discriminatory Regulations and Practices. (See story in the “Main Feature” column of Issue No. 2, June 2004.)

Since then, there has been increasing attention in China on discrimination and its negative impact on individual rights. It is also encouraging that new types of cases, such as discrimination based on place of origin, have also emerged. Although these cases are few in number and largely unsuccessful, they have inspired the public and fomented discussion at all levels, including within the government.

The following is an update on the recent cases and developments in areas where discriminatory practices continue to be most egregious:

Hepatitis B Virus Status

One of the first cases to receive national attention of employment discrimination against carriers of the Hepatitis B virus (HBV) involved a young man from Wuhu, Anhui Province (安徽省芜湖市), Mr. Zhang Xianzhu (张先著), who sued the local municipal personnel bureau for refusing to hire him based on his positive HBV status. Although Mr. Zhang won the case on technical grounds, the local people’s court declined to rule on the issue of whether the regulations which the defendant relied on to reject HBV carriers from the ranks of civil servants violated his constitutional rights of equality and political participation. In May 2005, the Intermediate Municipal People’s Court of Wuhu (芜湖市中级法院) upheld the lower court’s decision. (See People’s Net 人民网, June 1, 2005.)

On January 20, 2005, China’s Ministry of Personnel (人事部) and the Ministry of Health (卫生部) jointly issued a set of new regulations (“General Standards on Physical Examinations relating to the Employment of Civil Servants (Trail Implementation)”《公务员录用体检通用标准(试行)》, hereinafter referred to as the “General Standards”), which stated that an applicant for civil servant position would be disqualified if infected with HBV but those who are carriers of the virus should pass the physical examination so long as a contagious infection can be ruled out through further tests. Many in China welcomed the new regulations, hailing them as a solution offered by policy makers towards resolving the issue of discriminatory hiring practices against HBV carriers. (See People’s Net, January 20, 2005.) According to experts, approximately 10% of the population are either carriers of the HBV or are infected by the virus. (See Beijing Youth Daily 《北京青年报》, December 18, 2003.)

Despite the central government’s new regulations, the difficulty with implementation at the local level will likely undercut the regulations’ intended reach. Prior to the adoption of the General Standards, civil servant hiring practices by the central and local governments had been decided by rules separately issued by various levels of government agencies. Officials from the Ministry of Health stated that the General Standards were only applicable to lower level civil servant positions and should be viewed as the “least stringent standards” that the local governments were to use as reference in implementing the new regulations. (See People’s Net, January 21, 2006.)

Already, in March 2005, Zhejiang Province (浙江省) chose to impose more stringent HBV testing on its civil servant applicants (Beijing Youth Daily, April 18, 2005), which immediately raised questions about the effective reach of the national rules. According to Article 82 of China’s Law on Legislation (立法法), regulations issued by the central government ministries are on par with those issued by local governments, each to be “implemented within their respective jurisdictions”. Any conflicts or inconsistencies between the two can only be resolved by the State Council (国务院), the country’s highest executive authority (Article 86).

Judicial oversight of any disputes resulting from such conflicts or inconsistencies is limited to reviewing the legality of specific “administrative actions” of the local government and not the legality of the local regulations which conflict with national-level rules. (See Administrative Adjudication Law 《行政诉讼法》, Articles 11 and 12.) Even in the small number of cases under which courts do review such administrative actions, plaintiffs face an uphill battle. In August 2005, a civil servant applicant in Hunan Province (湖南省) brought the country’s first legal action involving violations of the HBV provisions according to the General Standards against the hiring practices of the provincial tax bureau. In this case, the plaintiff, who placed first in the qualifying examination was rejected after being tested positive for HBV. The plaintiff contended that because the medical results established conclusively that he was a HBV carrier and not infected, he should not therefore have been disqualified pursuant to the General Standards and that the defendant’s “administrative action” in refusing to hire him violated such rules. In August 2005, the trial court ruled against the plaintiff, stating that the defendant’s action was within the bounds of the General Standards and that the recruitment process as it related to the plaintiff did not show any discrimination. (See Hunan Education Net 湖南教育网, August 9, 2006) In December 2005, the Changsha Municipality Intermediate Court (长沙市中级法院) upheld the lower court’s decision, further confirming the legality of the defendant’s action. (See Xinhua Net 新华网, December 23, 2005.)

The effect of the General Standards is also limited to the employment practices of civil servants. For the vast majority of China’s job seekers, discrimination against HBV carriers continues to be widespread. There have been calls from the HBV community to adopt similar rules affecting other areas of employment. In 2006, when the National People’s Congress (全国人大,NPC) solicited public comments to the draft Labor Law (劳工法), many urged the NPC to adopt rules which would prohibit all employers from rejecting job applicants on the basis of positive HBV status and to limit the types of occupations which may require HBV testing. (See NPC Net 人大网, March 27, 2006.)

Gender

Gender discrimination remains egregious in China’s labor market. One issue in particular—the different retirement age requirements for men and women—has captured much public interest in recent years.

For many years, Chinese government agencies and state-owned companies have set different retirement ages for male and female employees. For example, according to a series of regulations issued by the State Council, female civil servants may retire at age 55 while males may do so at 60. Similarly, a female worker at a state-owned enterprise must retire at the age of 50 while her male counterpart must do so at 60. (See State Council, “Temporary Measures regarding Aging, Sick and Disabled Cadres” and “Temporary Measures regarding Retirement and Discharge of Workers”, Order No. 104, 1978, 国发(1978) 104号文件, 《国务院关于安置老弱病残干部的暂行办法》和《国务院关于工人退休、退职的暂行办法》.) In practice, retirement ages for both types of state employees appear to be mandatory.

In August 2005, a female employee of the China Construction Bank (中国建设银行) became the first to challenge the constitutionality of the mandatory retirement age requirement for female workers. The plaintiff, Ms. Zhou Xianghua (周香华), first sought arbitration from the Pingdingshan Municipal Labor Arbitration Tribunal in Henan Province (河南省平顶山市劳动争议仲裁委员会), claiming that she should have the same right to retire at age 60 as her male coworkers. The labor tribunal refused to accept her claim on jurisdictional ground. Ms. Zhou then brought a civil action in the Zhaihe District People’s Court in Pingdingshang (平顶山市湛河人民法院) against her employer, alleging that her mandatory retirement initiated by the defendant violated her constitutional right to gender equality. (See Xinhua Net, November 4, 2005.) Under Article 48 of the Chinese Constitution (宪法), males and females have equal rights to employment. The local court rejected the claim for lack of legal support, although many in China viewed this case as significant in that the court actually adjudicated the claim instead of simply refusing to hear the case on jurisdictional grounds, a common tactic employed by local courts in handling cases with potential political sensitivity.

In March 2006, the Beijing University Women’s Legal Research and Services Center (北京大学法学院妇女法律研究与服务中心) formally submitted a request to the NPC to review the constitutionality of the State Council regulations on retirement age. . (See Xinhua Net, March 8, 2006.) Having exhausted her legal remedies, Ms. Zhou also submitted a similar request to the NPC signed by over 70 supporters. (See People’s Net, July 24, 2006.) Since December 2005, the NPC has promulgated new rules under which organizations and individual citizens may request the national legislative body to review the constitutionality of laws and regulations. (See the Beijing News 《新京报》, December 20, 2005.)

Residency (户籍)

Discrimination on the basis of residency has its origin in China’s age-old household registration system which assigns all citizens rural or urban residency based on their parents’ place of origin. For millions of rural migrant workers seeking employment in China’s more developed urban areas, their rural residency status has caused them to face widespread discrimination in such areas as wages, housing, healthcare and education, effectively turning them into second-class citizens in the cities.

Recently, a string of cases, referred to in the Chinese media as the “same life, different prices” cases, underscored the impact of one aspect of the residency discrimination. In April 2006, the Beijing Chaoyang District People’s Court (北京市朝阳区人民法院) handed out vastly different amounts of monetary awards to families of two passengers who died from the same car accident—RMB 410,000 for the urban resident and RMB170,000 for the rural resident. The Beijing court’s ruling relied on a set of judicial interpretations issued by China’s Supreme People’s Court (最高人民法院) in 2004 which provided that compensation for deaths resulting from personal injury cases should be calculated based on the average annual “disposable income of urban residents or net income of rural residents”. (See Supreme People’s Court, “Judicial Interpretation of Issues Concerning the Application of Law in Adjudicating Cases Involving Personal Injury Compensation” 《关于审理人身损害赔偿案件适用法律若干问题的解释》.) The case, along with a number of similar cases elsewhere, drew wide public criticism. In July 2006, a different ruling by the Gaoxin District People’s Court in Chengdu, Sichuan Province (四川省成都市高鑫区人民法院) was hailed by the media as a major breakthrough in tackling residency discrimination. In that case, the court held that even though the victim had rural residency, the fact that he had lived in the urban area as a migrant worker for 10 years meant that his standard of living was the same as that of an urban resident and that, therefore, he should be entitled to compensation at the same level. (See China Youth Daily 《中国青年报》, July 18, 2006.)

There are signs that changes may be underway beyond the single Chengdu court ruling. In June 2006, the Henan Provincial High Court issued to its lower courts the “Opinion regarding Improving the Adjudication of Cases involving Interests of Rural Migrant Workers to Better Protect their Legal Rights” 《关于加强涉及农民工权益案件审理工作,切实保护农民工合法权益的意见》. In it the Henan Provincial High People’s Court expressly provided that the standard of compensation in personal injury cases for urban residents shall be applicable to rural migrant workers who reside primarily in an urban area and earn their income from working in the same area. (See SinoNet 中法网, July 3, 2006.) Henan Province is among China’s biggest exporter of rural migrant workers to urban areas. The Anhui Provincial High People’s Court is reported to have issued similar rules. (See China Youth Daily 《中国青年报》, March 23, 2006.) According to another report, the Supreme People’s Court also began to consider revising its current rules on the disparate compensation standards for urban and rural residents. (See Workers Daily 《工人日报》, July 3, 2006.) Such efforts, however, are likely to offer little relief for China’s rural migrant workers who face a variety of discrimination in their daily lives. In the words of one commentator, the root of the discrimination lies not in the laws, but in China’s two-tiered residency system which resulted in “severe inequity in the social status of urban and rural residents … an inequality which is manifested in almost all aspects of a citizen’s social, economic and political rights”. (See Zhong Kai 钟凯, May 26, 2006.)

Place of Origin (籍贯)

Discrimination against people from particular regions first became the focus of litigation in 2005. Regional stereotyping and prejudice against outsiders are nothing new in a culturally and geographically diverse country like China. In recent years, natives of one region in particular, Henan Province, seem to have fared worse than others. Henan, China’s most populous province (with an estimated population of nearly 100 million (China Statistical Yearbook 2005 《中国统计年鉴-2005》)), is also one of its less developed economically. Large numbers of peasants from Henan work as migrant workers in urban areas throughout China, often performing menial jobs. Both in the media and among the general public,people from Henan are often portrayed as being dishonest or less cultured. There are reports of job ads stating that Henan people need not apply (see Nanhu Evening News 《南湖晚报》, August 23, 2006) and landlords rejecting Henan tenants (see CRI Online 《中国国际广播电台国际在线》, June 13, 2006).

In April 2005, two Henan natives filed a lawsuit in a Henan court against the Shenzhen police, alleging discrimination against people from Henan and damage to their reputation. (See Xinhua Net, April 27, 2006.) The plaintiffs, one of them a lawyer, were outraged by a news report about police in Longgang District, Shenzhen (深圳龙岗区) posting banners in the neighborhoods calling for the crackdown of “Henan criminal gangs”. (See Southern Metropolis 《南方都市报》, March 30, 2006.) According to Shenzhen police, the specific area involved had a large Henan population who were linked to most of the reported crime. (See Chendu Commercial Times 《成都商报》, April 25, 2005.) The case was settled in 2006 with the defendant issuing formal apologies to the plaintiffs. (See China Youth Daily, February 9, 2006.) It is also reported that the Shenzhen police also offered apologies to many Henan natives living in the area. This case, the first of its kind in China, has encouraged many observers by the fact that the court, albeit an obviously sympathetic Henan court, agreed to hear the case. Further such cases advancing through the courts may depend, according to some legal experts, on whether lawyers can sufficiently establish one of the more difficult elements of these lawsuits: damages resulting from the discriminatory practices.


Research memo in Chinese contributed by Ms. Liu Haiye (刘海叶) , a program officer at China Law & Development Consultants.




 

 


Copyright 2006 by the China Law and Governance Review
All Rights Reserved