Claims of sex discrimination in China are low, despite the high level of discrimination and inequality experienced in the office. In the second of a series of articles looking at how different APAC countries are responding to the changing world of work, Scott Anderson of Lewis Silkin, explores the reasons for the low number of sex discrimination claims in China and how this may change in the future.
It is not uncommon to see job adverts in China referring to the ideal candidate as “he” or “him” or in some cases to state explicitly “job applicants must be male”. Only earlier this year, an employer in Henan province hit the headlines for demanding that its female employees become pregnant only within a time frame specified by the employer, and promising to fine or not promote a female employee if she failed to do so.
Claims of sex discrimination in China are negligible. This is despite the country’s ostensibly robust anti-sex discrimination framework and, anecdotally, a high level of sex discrimination and inequality in the workplace.
Will the level of discrimination only be exacerbated by the new national ‘two child’ policy, which took effect in late October (albeit the ‘one child’ policy had for some time been only loosely applied to some, such as rural residents and certain ethnic minorities)? Only time will tell. Some fear that employers will be reluctant to hire women if they can now take maternity leave more than once. On the other hand, in simple terms, the next generation of Chinese workers will have a higher ratio of females to make claims.
In this, the second in a series of articles looking at how different APAC countries are responding to the changing world of work, we explore the reasons for the low number of sex discrimination claims in China and consider how this may change in the future.
A robust legal framework
China has a strong anti-discrimination framework, which at first glance is arguably as comprehensive as most European countries and the US.
The national constitution, national legislation (the Labour Law, Law on the Protection of the Rights and Interests of Women and Employment Promotion Law) and administrative guidelines (such as the Special Provisions on Labour Protection of Female Workers) in different ways all prohibit discrimination against female employees and job applicants.
But why does the reality not match the rhetoric?
Despite the strong legal framework, in practice very few discrimination claims are made. Official records are scarce but one scholar has claimed that only 92 discrimination cases (not restricted to just sex discrimination) were reported in the first decade of this century. Whether this is accurate or not given the immense size of the country, what is indisputable is that the number of employment discrimination claims being filed is so insignificant that they have not been included as a separate category of civil litigation by the Chinese Supreme People’s Court.
Three main factors can help to explain this discrepancy between the rhetoric and the reality.
The first is cultural. The very concept of discrimination (on the grounds of sex or otherwise) is not yet ingrained in the consciousness of employees, at least not to the same extent as in the US and Europe. It was only in 2002, when a discrimination case was filed in a local court in Chengdu, Sichuan Province (involving a university graduate suing a local branch of the People’s Bank of China for height discrimination) that the public began to take much notice of discrimination issues. The first sex discrimination claim was filed in 2012. Culturally, employees can be reluctant to sue their employers to avoid losing face (see our post earlier this year on the potential for different East and West corporate cultures to clash). Some studies have also shown that employees, especially of older generations, are more likely to attribute unfair, discriminatory treatment to their own actions, work performance or even bad luck. Another theory is that China’s planned economy of the past may have deeply instilled in (at least older) employees’ psyche a view that managers are merely following orders and lack either the incentive or the discretion to discriminate.
The second factor is legal. The discrimination laws and guidelines described above are general statements that discrimination is prohibited on certain protected characteristics. The law does not explain or define what constitutes discrimination or discriminatory behaviour. Is it lawful for employers to discriminate indirectly against female employees because of the way they apply an innocuous looking working hour policy? Or must a female have been directly discriminated against in order to successfully make a claim? Unlike in the US and Europe, there is no guidance as to the types of discrimination that exist and the legal hurdles that an employee must meet. Certainly the concept of indirect discrimination is in its infancy. While there is no direct evidence that this legal uncertainty discourages claimants, it can hardly help. In a similar vein, there is no guidance as to what remedies a successful claimant can expect to receive. Features of the Chinese court system make life even harder for claimants. For example, only written evidence is given any serious weight, as opposed to oral testimony.
The third factor is institutional. Sex discrimination complainants tend to hit a brick wall with their complaints. In China’s civil litigation system, a case must first be accepted by the court before it can proceed any further – this is similar to the “sifting” stage in the UK tribunal system. The court will accept the case if it meets certain requirements. If the case is accepted, it is placed on the “docket” – this must be done within seven days of the claim being received. If the court does not place the claim on the “docket”, it must provide reasons for rejecting the claim within seven days. Until relatively recently, the trend was for courts to not allow sex discrimination claims to pass this initial stage. In China’s first reported sex discrimination claim, it took more than a year for the court to finally accept the case. This obstacle is compounded by the absence of any specialist government authority hearing and processing employment discrimination claims, which can lead to confused claimants filing cases with several different authorities. These institutional barriers can make obtaining suitable legal representation challenging – as many lawyers see the cases as difficult to win or not profitable to handle on a contingency fee basis.
Is the tide turning?
Is it possible that the trend of sex discrimination cases not passing the initial stage is changing? Perhaps. This year, courts accepted two claims (one in Guangzhou; the other in Beijing) immediately or very soon after filing. Although we are still waiting for the final decisions in both cases, and a considerable degree of caution should be exercised before drawing conclusions from two cases, it is possible that the court’s door is slowly being opened to sex discrimination claimants.
Conclusion
Mao once famously declared that women hold up half the sky. The current discrepancy between the reality and the rhetoric on workplace sex discrimination is in striking contrast to the Party’s historic promotion of gender equality and high rates of female employment in China.
Yet a discernible recent trend towards courts being more willing to at least hear sex discrimination claims indicates the gap between the rhetoric and reality may be closing. Added to this, traditional cultural barriers may also be less relevant to a burgeoning middle class including female employees who are becoming increasingly aware, and assertive, of their workplace rights. Changes to the law to detail what constitutes discriminatory behaviour (not solely on the ground of sex) and creating a specialised body to deal with discrimination claims would certainly help close the gap faster.
By Scott Anderson, Lewis Silkin LLP
This is the second in a series of articles looking at how different APAC countries are responding to the changing world of work.
Part one: "A Korean perspective on the changing world of work"
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