DEALING WITH DISCRIMINATION IN MAINLAND CHINA AN OVERVIEW OF DISCRIMINATION IN EMPLOYMENT AND THE LEGAL FRAMEWORK ADDRESSING IT By Jean-Francois Seguin, LL.M Candidate New York University School of Law May 2009 1.INTRODUCTION...... 42 2.DISCRIMINATION IN THE WORKPLACE. 2.1.Possible grounds of discrimination........ 4 i)Gender. .5 ii)Health status… 7 i词Physical trai讴… 10 iv)Migrants and minorities..... …12 v)Religious beliefs.… .13 3.THE ANTI-DISCRIMINATION LEGAL FRAMEWORK.........................14 3.1.The Chinese Constitution,equality and unity........... 14 3.2.Specific laws addressing discrimination in employment........... 17 4.ENFORCEMENT OF NON-DISCRIMINATION PROVISIONS.............. 24 5.CONCLUSION. .30
DEALING WITH DISCRIMINATION IN MAINLAND CHINA AN OVERVIEW OF DISCRIMINATION IN EMPLOYMENT AND THE LEGAL FRAMEWORK ADDRESSING IT By Jean-François Séguin, LL.M Candidate New York University School of Law May 2009 1. INTRODUCTION................................................................................................................ 2 2. DISCRIMINATION IN THE WORKPLACE.................................................................. 4 2.1. Possible grounds of discrimination.............................................................................. 4 i) Gender............................................................................................................................ 5 ii) Health status ................................................................................................................. 7 iii) Physical traits............................................................................................................. 10 iv) Migrants and minorities............................................................................................. 12 v) Religious beliefs........................................................................................................... 13 3. THE ANTI-DISCRIMINATION LEGAL FRAMEWORK.......................................... 14 3.1. The Chinese Constitution, equality and unity .......................................................... 14 3.2. Specific laws addressing discrimination in employment ......................................... 17 4. ENFORCEMENT OF NON-DISCRIMINATION PROVISIONS ............................... 24 5. CONCLUSION................................................................................................................... 30
1.INTRODUCTION China has emerged as a global economic superpower.Its economic growth,since the reforms of Deng Xiaoping until today,is unique in history.Its development,in many aspects, is phenomenal.While the Chinese government is building a modern and industrialized state, questions on social and legal development in China may arise. One critical challenge of China's emergence is the modernization of its legal system and moving toward the rule of law'.In Marc Galanter's definition of a "modern legal system',the law should be transactional and people's rights should not be influenced by factors like their sex,ethnicity or religion2.In other words,a modern system should recognize that all are equals and prevent discrimination.According to Galanter,the law should also be "universal"and applied without discrimination'.In pursuing the modernization of its legal system,China needs to counter discrimination and advance equality for minorities. Like in nearly all nations,discrimination has always been part of China's history For instance,Shuping Wang,a 2002 Global Public Service Scholar at NYU School of Law,noted in a paper on China's policy toward minorities that ethnic groups were seen and treated as barbarians in ancient China: [F]or most of China's history,the Han in Central China discriminated against backward'ethnic groups;while in other periods ethnic groups assumed power,such as in the Yuan and Qing Dynasties.In such periods,the governing minority ethnic groups discriminated against other ethnic groups, including the majority Han. 1 See generally RANDALL PEERENBOOM,CHINA'S LONG MARCH TOWARD RULE OF LAW (Cambridge University Press)(2002). 2 In Frank K.Upham and Xin He,Class One:What Is A Modern Legal System?,Law And Society In East Asia, New York University School of Law,Spring,2009,at 2(distributed in class). 31d. A Shuping Wang,The Peoples's Republic Of China's Policy on Minorities and International Approaches to Ethnic Groups:A Comparative Study,Int'l J.on Minority Groups Rts.159 2004,at 163 51d. 2
2 1. INTRODUCTION China has emerged as a global economic superpower. Its economic growth, since the reforms of Deng Xiaoping until today, is unique in history. Its development, in many aspects, is phenomenal. While the Chinese government is building a modern and industrialized state, questions on social and legal development in China may arise. One critical challenge of China’s emergence is the modernization of its legal system and moving toward the rule of law1 . In Marc Galanter’s definition of a ‘‘modern legal system’’, the law should be transactional and people’s rights should not be influenced by factors like their sex, ethnicity or religion2 . In other words, a modern system should recognize that all are equals and prevent discrimination. According to Galanter, the law should also be ‘‘universal’’ and applied without discrimination3 . In pursuing the modernization of its legal system, China needs to counter discrimination and advance equality for minorities. Like in nearly all nations, discrimination has always been part of China’s history4 . For instance, Shuping Wang, a 2002 Global Public Service Scholar at NYU School of Law, noted in a paper on China’s policy toward minorities that ethnic groups were seen and treated as barbarians in ancient China: [F]or most of China’s history, the Han in Central China discriminated against ‘backward’ ethnic groups; while in other periods ethnic groups assumed power, such as in the Yuan and Qing Dynasties. In such periods, the governing minority ethnic groups discriminated against other ethnic groups, including the majority Han.5 1 See generally RANDALL PEERENBOOM, CHINA’S LONG MARCH TOWARD RULE OF LAW (Cambridge University Press) (2002). 2 In Frank K. Upham and Xin He, Class One: What Is A Modern Legal System?, Law And Society In East Asia, New York University School of Law, Spring, 2009, at 2 (distributed in class). 3 Id. 4 Shuping Wang, The Peoples’s Republic Of China’s Policy on Minorities and International Approaches to Ethnic Groups: A Comparative Study, Int’l J. on Minority & Groups Rts. 159 2004, at 163. 5 Id
The world's most populous country has over 56 minority ethnic groups(minzu),with the Han population being the majority group Although development is lifting people out of poverty at a rapid rate,minorities in the country seem to benefit far less from the economic progress in China:minorities represent8%of the total population but they comprise 40%of the poor The treatment of minorities and other forms of discrimination documented in China have been criticized by Western media,NGOs and scholars8. While the author does not have the requisite expertise to fully and justly analyze discrimination in China and to judge of how the government is dealing with it through policies and the law,this paper reviews the relevant literature and provides an overview of the existing legal framework protecting against discrimination in the workplace.The four main questions the author tries to answer are the following: What are the main forms of discrimination in employment? Do Chinese citizens have a recognized fundamental right to equality? Is the legal corpus and system adequately protecting people against illegal discrimination? Is China evolving toward less discrimination? After looking at the possible grounds of discrimination such as gender,ethnicity and religion, the relevant laws are examined.How non-discrimination provisions are and can be enforced in Chinese courts is then discussed.It concludes with an assessment of the Chinese government's actions to cope with discrimination. 6 Shuping Wang,supra note 4,at 162. 7Susan K.McCarthy,The State,Minorities.And Dilemmas Of Development In Contemporary China,26 Fletcher F.World Aff.107(2002),at 107. 8 See Internal Migrants:Discrimination And Abuse-The Human Cost Of An Economic 'Miracle,Amnesty International,March 2007,available online at http://www.amnesty.org/en/library/info/ASA17/008/2007. This paper examines discrimination and legal protection against it in mainland China.It does not cover Autonomous and Special Administrative Regions. 3
3 The world’s most populous country has over 56 minority ethnic groups (minzu), with the Han population being the majority group6 . Although development is lifting people out of poverty at a rapid rate, minorities in the country seem to benefit far less from the economic progress in China: minorities represent 8.2% of the total population but they comprise 40% of the poor7 . The treatment of minorities and other forms of discrimination documented in China have been criticized by Western media, NGOs and scholars8 . While the author does not have the requisite expertise to fully and justly analyze discrimination in China and to judge of how the government is dealing with it through policies and the law, this paper reviews the relevant literature and provides an overview of the existing legal framework protecting against discrimination in the workplace9 . The four main questions the author tries to answer are the following: ▫ What are the main forms of discrimination in employment? ▫ Do Chinese citizens have a recognized fundamental right to equality? ▫ Is the legal corpus and system adequately protecting people against illegal discrimination? ▫ Is China evolving toward less discrimination? After looking at the possible grounds of discrimination such as gender, ethnicity and religion, the relevant laws are examined. How non-discrimination provisions are and can be enforced in Chinese courts is then discussed. It concludes with an assessment of the Chinese government’s actions to cope with discrimination. 6 Shuping Wang, supra note 4, at 162. 7 Susan K. McCarthy, The State, Minorities, And Dilemmas Of Development In Contemporary China, 26 Fletcher F. World Aff. 107 (2002), at 107. 8 See Internal Migrants: Discrimination And Abuse - The Human Cost Of An Economic ‘Miracle’, Amnesty International, March 2007, available online at http://www.amnesty.org/en/library/info/ASA17/008/2007. 9 This paper examines discrimination and legal protection against it in mainland China. It does not cover Autonomous and Special Administrative Regions
2.DISCRIMINATION IN THE WORKPLACE Discrimination in employment is widespread and well documented in China.A study conducted in ten large cities by a team of academics from Peking University,Tsinghua and the China University of Political Science Law in 2006 indicated that about 85.5%of the 3,424 respondents interviewed thought that discrimination in the workplace exists and 58%of them thought the problem was severe.Ronald C.Brown,a professor of law and former Fulbright Distinguished Lecturer at Peking University Law School,had his attention caught by a job advertisement posted on a wall outside of the Ministry of Labor in Beijing in 1996 The add read as follows: Seeking an office clerk.Female,decent height and appearance.All five facial 1 organs must be in the right place [wu guan duan zheng]. Discrimination can also go much further than physical attributes.Apparently,in 2005,it was reported by Chinese media that some employers refused to hire qualified candidates because they were born as dogs in the Chinese astrological cycle2.Although this can be a somewhat isolated peculiar case of discrimination,it is fair to say that discrimination in work is quite common in China. 2.1.Possible grounds of discrimination Discrimination exists based on many grounds.Gender,health status,physical traits, ethnicity (residence)and religious beliefs are among the most common factors of discrimination in employment3 10 Xun Zeng,Enforcing Equal Employment Opportunities In China,9U.Pa.J.Lab.&Emp.L.991(2006-2007), at992. 1 Ronald Brown,China's Employment Discrimination Laws During Economic Transition,19 Colum.J.Asian L.361(2005-2006),at362. 12 Xun Zeng,supra note 10,at 993 Ronald Brown,supra note 11,at 362. ?
4 2. DISCRIMINATION IN THE WORKPLACE Discrimination in employment is widespread and well documented in China. A study conducted in ten large cities by a team of academics from Peking University, Tsinghua and the China University of Political Science & Law in 2006 indicated that about 85.5% of the 3,424 respondents interviewed thought that discrimination in the workplace exists and 58% of them thought the problem was severe10 . Ronald C. Brown, a professor of law and former Fulbright Distinguished Lecturer at Peking University Law School, had his attention caught by a job advertisement posted on a wall outside of the Ministry of Labor in Beijing in 1996. The add read as follows: Seeking an office clerk. Female, decent height and appearance. All five facial organs must be in the right place [wu guan duan zheng]. 11 Discrimination can also go much further than physical attributes. Apparently, in 2005, it was reported by Chinese media that some employers refused to hire qualified candidates because they were born as dogs in the Chinese astrological cycle12 . Although this can be a somewhat isolated peculiar case of discrimination, it is fair to say that discrimination in work is quite common in China. 2.1. Possible grounds of discrimination Discrimination exists based on many grounds. Gender, health status, physical traits, ethnicity (residence) and religious beliefs are among the most common factors of discrimination in employment13 . 10 Xun Zeng, Enforcing Equal Employment Opportunities In China, 9 U. Pa. J. Lab. & Emp. L. 991 (2006-2007), at 992. 11 Ronald Brown, China’s Employment Discrimination Laws During Economic Transition, 19 Colum. J. Asian L. 361 (2005-2006), at 362. 12 Xun Zeng, supra note 10, at 993. 13 Ronald Brown, supra note 11, at 362
Other types of discrimination,based on the name or the age,have been reported as well.For example,the manager of a store wanted to hire a woman to be a salesperson but quickly changed his mind when he learned that her family name was "Pei',which in Mandarin can sound like "loosing money"4.Same situation happened when a young man namedJia''applied for a customer service position in a company.The manager did not hire him because Jia is pronounced like the word "fake15.Another department store had stipulated in its official employment policy that all sales representatives should be below 35 years old and be registered as permanent resident of Beijing.It is well known in China that many employers prefer to employ young people and that older candidates,even though qualified,may struggle more to find a job i)Gender Women clearly play a very important role in all aspects of the Chinese society.Their equality to men has long been recognized and is now officialised by the Constitution'.Mao Zedong,in a speech given in 1955,declared: Enable every woman who can work to take her place on the labor front under the principle of equal pay for equal work.This should be done as soon as possible.19 Nonetheless,many women continue to be victim of gender-based discrimination.The online China Information Center2 reports that general discrimination against women has Charles Chen and Jihong Wu,Employment Discrimination in China,Canadian International Lawyer,Vol6, No.1(2004),at40. 51d. 161d,at41. 71d,at40. i Article 48,Constitution of the People's Republic of China,available online at http://english.gov.cn/2005- 08/05/content 20813.htm(the Constitution have been adopted at the Fifth Session of the Fifth National People's Congress and promulgated for implementation by the Proclamation of the National People's Congress on December 4.1982). 9Ronald Brown,supra note 11,at 371. J
5 Other types of discrimination, based on the name or the age, have been reported as well. For example, the manager of a store wanted to hire a woman to be a salesperson but quickly changed his mind when he learned that her family name was ‘‘Pei’’, which in Mandarin can sound like ‘‘loosing money’’14 . Same situation happened when a young man named ‘‘Jia’’ applied for a customer service position in a company. The manager did not hire him because Jia is pronounced like the word ‘‘fake’’15 . Another department store had stipulated in its official employment policy that all sales representatives should be below 35 years old and be registered as permanent resident of Beijing16 . It is well known in China that many employers prefer to employ young people and that older candidates, even though qualified, may struggle more to find a job17 . i) Gender Women clearly play a very important role in all aspects of the Chinese society. Their equality to men has long been recognized and is now officialised by the Constitution18. Mao Zedong, in a speech given in 1955, declared: Enable every woman who can work to take her place on the labor front under the principle of equal pay for equal work. This should be done as soon as possible.19 Nonetheless, many women continue to be victim of gender-based discrimination. The online China Information Center20 reports that general discrimination against women has 14 Charles Chen and Jihong Wu, Employment Discrimination in China, Canadian International Lawyer, Vol.6, No.1 (2004), at 40. 15 Id. 16 Id., at 41. 17 Id., at 40. 18 Article 48, Constitution of the People’s Republic of China, available online at http://english.gov.cn/2005- 08/05/content_20813.htm (the Constitution have been adopted at the Fifth Session of the Fifth National People's Congress and promulgated for implementation by the Proclamation of the National People's Congress on December 4, 1982). 19 Ronald Brown, supra note 11, at 371
created a severe newborn gender imbalance,mainly caused by selective abortions21.In an interview with the Xinhua News Agency,Liu Bohong,vice-director at the All-China Women's Federation,highlighted the fact that "gender ineguality is everywhere:from selective abortions to employers'preferences for male graduates2.According to Ms.Liu, gender discrimination is the result of "male chauvinism that is deep-rooted in Chinese culture23 Professor Ronald Brown notes that it is an open secret in China that female college graduates suffer discrimination from employers when applying for jobs,with the inequality known to almost all college students24.Brown even reports the fact that some female graduate students have started to include sexy photos wearing bikinis or short skirts in their job applications25 Statistics demonstrate the seriousness of the problem.A recent survey on employment realized by the Southwest University of Political Science Law confirmed thatInlearly 70 percent of Chinese women college graduates face sexual discrimination while job-hunting2 Female executives earn around 58%of what males earn while female doctors earn approximately 63%of the male doctors'salary27.The results of another survey realized by the Ministry of Labor and Social Security showed that 67%of employers set gender restrictions 20 The China Internet Information Center,available online at http://www.china.org.cn.The China Internet Information Center provides daily information on China and is published under the auspices of the State Council Information Office and the China International Publishing Group in Beijing. 2 Expert Blames Gender Discrimination for Growing Sex Imbalance (Xinhua News Agency December 18. 2006),available online at http://www.china.org.cn/english/features/cw/192838.htm. 22Id. 51d. 24 Ronald Brown,supra note 11,at 373. 51d. 26Job Discrimination Against Women Graduates(Xinhua News Agency January 18,2007),available online at http://www.china.org.cn/english/education/196472.htm. 27 Ronald Brown,supra note 11,at 364. 6
6 created a severe newborn gender imbalance, mainly caused by selective abortions21. In an interview with the Xinhua News Agency, Liu Bohong, vice-director at the All-China Women's Federation, highlighted the fact that ‘‘gender inequality is everywhere: from selective abortions to employers' preferences for male graduates’’22. According to Ms. Liu, gender discrimination is the result of ‘‘male chauvinism that is deep-rooted in Chinese culture’’23 . Professor Ronald Brown notes that it is ‘‘an open secret in China that female college graduates suffer discrimination from employers when applying for jobs, with the inequality known to almost all college students’’24. Brown even reports the fact that some female graduate students have started to include sexy photos wearing bikinis or short skirts in their job applications25 . Statistics demonstrate the seriousness of the problem. A recent survey on employment realized by the Southwest University of Political Science & Law confirmed that ‘‘[n]early 70 percent of Chinese women college graduates face sexual discrimination while job-hunting’’26 . Female executives earn around 58% of what males earn while female doctors earn approximately 63% of the male doctors’ salary27 . The results of another survey realized by the Ministry of Labor and Social Security showed that ‘‘67% of employers set gender restrictions 20 The China Internet Information Center, available online at http://www.china.org.cn. The China Internet Information Center provides daily information on China and is published under the auspices of the State Council Information Office and the China International Publishing Group in Beijing. 21 Expert Blames Gender Discrimination for Growing Sex Imbalance (Xinhua News Agency December 18, 2006), available online at http://www.china.org.cn/english/features/cw/192838.htm. 22 Id. 23 Id. 24 Ronald Brown, supra note 11, at 373. 25 Id. 26 Job Discrimination Against Women Graduates (Xinhua News Agency January 18, 2007), available online at http://www.china.org.cn/english/education/196472.htm. 27 Ronald Brown, supra note 11, at 364
against women or required in employment contracts that female employees don't become pregnant for a certain number ofyears2 What is the most troubling however is the resilience that many women tend to show when they face discrimination.The Southwest University of Political Science Law's survey on employment reveals that most women victim of discrimination often simply choose to tolerate it29.One survey participant said:"[wlhen turned down by one employer we just try another.it's a waste of time arguing with employers about the discrimination3 Referring to the laws protecting women against discrimination,Zhang Youyun,vice-president of the China's Employment Facilitation Association,notes that "when it comes to gender inequality,the gap between legal stipulations and reality is wider than in any other area ii)Health status Discrimination based on health conditions is well known.It constitutes an important problem in China given the large population and the huge number of people infected by diseases.For example,more than 10%of the population,around 120 million people,is believed to be infected by hepatitis B32.Studies also report that approximately 840,000 people are HIV positive3 A British firm conducted a survey on employment conditions for people living with hepatitis B in China and found that 52%of the participants,all carriers of the virus,once lost their job or educational opportunity due to their health condition34.The Beijing University 2 Job Discrimination Against Women Graduates,supra note 26. 291d. 301d. Expert Blames Gender Discrimination for Growing Sex Imbalance,supraote 21. Thomas E.Kellog Constittionalism With Chinese Characteristics?:An analysis of Constintional Litigation In China,Yale Law School China Law Center,September 2007,at 25(distributed in class). 33 Ronald Brown,supra note 11,at 382. 4d. 7
7 against women or required in employment contracts that female employees don't become pregnant for a certain number of years’’28 . What is the most troubling however is the resilience that many women tend to show when they face discrimination. The Southwest University of Political Science & Law’s survey on employment reveals that most women victim of discrimination often simply choose to tolerate it29 . One survey participant said: ‘‘[w]hen turned down by one employer we just try another’’, ‘‘it’s a waste of time arguing with employers about the discrimination’’30 . Referring to the laws protecting women against discrimination, Zhang Youyun, vice-president of the China's Employment Facilitation Association, notes that ‘‘when it comes to gender inequality, the gap between legal stipulations and reality is wider than in any other area’’31 . ii) Health status Discrimination based on health conditions is well known. It constitutes an important problem in China given the large population and the huge number of people infected by diseases. For example, more than 10% of the population, around 120 million people, is believed to be infected by hepatitis B32 . Studies also report that approximately 840,000 people are HIV positive33 . A British firm conducted a survey on employment conditions for people living with hepatitis B in China and found that 52% of the participants, all carriers of the virus, once lost their job or educational opportunity due to their health condition34 . The Beijing University 28 Job Discrimination Against Women Graduates, supra note 26. 29 Id. 30 Id. 31 Expert Blames Gender Discrimination for Growing Sex Imbalance, supra note 21. 32 Thomas E. Kellogg, Constitutionalism With Chinese Characteristics?: An analysis of Constitutional Litigation In China, Yale Law School China Law Center, September 2007, at 25 (distributed in class). 33 Ronald Brown, supra note 11, at 382. 34 Id
Law School found similar results in surveying job seekers.Their results show that 56%of hepatitis B carriers have not been employed,mostly because they were classified as "substandard'on their physical exam35.Perhaps more disturbing is the fact that 36.%of the general public interviewed found that not hiring someone because she is infected by hepatitis B is not a form of discrimination3 Hepatitis B discrimination has been at the center of the quest for equality and non- discrimination37.Many important cases involving hepatitis B carriers have paved the way to discrimination litigation in China3.Thomas E.Kellogg,Senior Fellow at Yale Law School, notes thata key factor in the rise of hepatitis B discrimination litigation in China has been the active engagement of civil society groups'.One of the most mediatized and tragic story of hepatitis discrimination is the case of Zhou Yichao which caught the attention of NGOs and the general public3.Zhou Yichao was a graduating student of Zhejiang University,in the Zhejiang province,who applied for a position with the local government He passed the city's civil servant qualification test with success but his application was eventually turned down because of his health condition,being a hepatitis B carrier4.Desperate and angry,he killed a government representative responsible for recruitment and seriously injured another one.Mr.Zhou was arrested and sentenced to death.He was executed in March 200442 Following the Zhou incident,in November 2003,the first hepatitis B discrimination lawsuit was brought before the People's Court in the Xinwu District,in Anhui Province. Zhang Xianzhu was a young university graduate who received the highest score in the Wuhu 35 Thomas E.Kellogg,supra note 32,at 25-26. 36Id. 37See e.g.Thomas E.Kellogg,supra note 32. 38 See infra Section 5 on enforcement of non-discrimination provisions in Chinese courts. XunZeng,supra note 10,at 1003.See also Ronald Brown,supra note 11,at 382. 4o1d. 4 Id. 21d. 8
8 Law School found similar results in surveying job seekers. Their results show that 56% of hepatitis B carriers have not been employed, mostly because they were classified as ‘‘substandard’’ on their physical exam35. Perhaps more disturbing is the fact that 36.6% of the general public interviewed found that not hiring someone because she is infected by hepatitis B is not a form of discrimination36 . Hepatitis B discrimination has been at the center of the quest for equality and nondiscrimination37. Many important cases involving hepatitis B carriers have paved the way to discrimination litigation in China38 . Thomas E. Kellogg, Senior Fellow at Yale Law School, notes that ‘‘a key factor in the rise of hepatitis B discrimination litigation in China has been the active engagement of civil society groups’’. One of the most mediatized and tragic story of hepatitis discrimination is the case of Zhou Yichao which caught the attention of NGOs and the general public39. Zhou Yichao was a graduating student of Zhejiang University, in the Zhejiang province, who applied for a position with the local government40. He passed the city’s civil servant qualification test with success but his application was eventually turned down because of his health condition, being a hepatitis B carrier41. Desperate and angry, he killed a government representative responsible for recruitment and seriously injured another one. Mr. Zhou was arrested and sentenced to death. He was executed in March 200442 . Following the Zhou incident, in November 2003, the first hepatitis B discrimination lawsuit was brought before the People’s Court in the Xinwu District, in Anhui Province. Zhang Xianzhu was a young university graduate who received the highest score in the Wuhu 35 Thomas E. Kellogg, supra note 32, at 25-26. 36 Id. 37 See e.g. Thomas E. Kellogg, supra note 32. 38 See infra Section 5 on enforcement of non-discrimination provisions in Chinese courts. 39 Xun Zeng, supra note 10, at 1003. See also Ronald Brown, supra note 11, at 382. 40 Id. 41 Id. 42 Id
civil service qualifications examination3.The local Personnel Bureau,however,rejected his application because it was found after an employment medial exam that he was infected by hepatitis B4.Zhang filed a lawsuit and alleged discrimination and a violation of his right of equality guaranteed by the Chinese Constitution5.The Court accepted to hear the case and delivered a judgment ruling in favour of Zhang.However,the Court decision was not clearly anti-discrimination"and did not impose any sanction or suggest any measure to redress the wrongdoing.The Court simply held thatthere was insufficient evidence to demonstrate that Zhang,although an HBV carrier,belonged to one of the seven HBV groups that Anhui's provincial health standards barred from public service4.As pointed out by a Chinese lawyer,Mr.Zhang won purely on technical grounds47. The Zhou and Zhang cases sparked national and international attention and became emblematic of the cause of millions of people who are denied job opportunities because of their health conditions.For instance,a non-profit organization defending hepatitis carriers' rights has set up an Internet forum for people living with the disease in China.Available at www.hbvhbv.com,the website's welcome page states the following: The hbver (Hepatitis B virus carriers)group has met different degree [of] discrimination in education,employment and many other aspects of life for some histor[ic]reason.We offer a communication platform for 120 million hbver to search medicine,exchange feeling[s]and seek help and make the hbver never feel lonely and helpless.We made much effort for protecting hbvers'legal right such as [in]the first HBV discrimination lawsuit of Zhang Xianzhu,[a]review of constitutionality submitted by 1161 citizens,ete. Until recently,several governmental agencies had,as a policy,bans on employment of hepatitis B or/and HIV carriers (and people with disabilities or "non-standard'physical 43Id. 41d. 45ld. Bonny Ling and Wing Lam,Hepatitis B:A Catalyst For Anti-Discrimination Reforms?,a available online at http://hrichina.org/public/PDFs/CRF.2.2007/CRF-2007-2_Hepatitis.pdf. 47 Xun Zeng,supra note 10,at 1004. he hepatitis B campWebsite,available online at http:/www.hbvhbv.com/english/. 9
9 civil service qualifications examination43. The local Personnel Bureau, however, rejected his application because it was found after an employment medial exam that he was infected by hepatitis B44. Zhang filed a lawsuit and alleged discrimination and a violation of his right of equality guaranteed by the Chinese Constitution45. The Court accepted to hear the case and delivered a judgment ruling in favour of Zhang. However, the Court decision was not clearly ‘‘anti-discrimination’’ and did not impose any sanction or suggest any measure to redress the wrongdoing. The Court simply held that ‘‘there was insufficient evidence to demonstrate that Zhang, although an HBV carrier, belonged to one of the seven HBV groups that Anhui’s provincial health standards barred from public service’’46 . As pointed out by a Chinese lawyer, Mr. Zhang won purely on technical grounds47 . The Zhou and Zhang cases sparked national and international attention and became emblematic of the cause of millions of people who are denied job opportunities because of their health conditions. For instance, a non-profit organization defending hepatitis carriers’ rights has set up an Internet forum for people living with the disease in China. Available at www.hbvhbv.com, the website’s welcome page states the following: The hbver (Hepatitis B virus carriers) group has met different degree [of] discrimination in education, employment and many other aspects of life for some histor[ic] reason. We offer a communication platform for 120 million hbver to search medicine, exchange feeling[s] and seek help and make the hbver never feel lonely and helpless. We made much effort for protecting hbvers' legal right such as [in] the first HBV discrimination lawsuit of Zhang Xianzhu, [a] review of constitutionality submitted by 1161 citizens, etc.48 Until recently, several governmental agencies had, as a policy, bans on employment of hepatitis B or/and HIV carriers (and people with disabilities or ‘‘non-standard’’ physical 43 Id. 44 Id. 45 Id. 46 Bonny Ling and Wing Lam, Hepatitis B: A Catalyst For Anti-Discrimination Reforms?, at 70, available online at http://hrichina.org/public/PDFs/CRF.2.2007/CRF-2007-2_Hepatitis.pdf. 47 Xun Zeng, supra note 10, at 1004. 48 ‘‘In the hepatitis B camp’’ Website, available online at http://www.hbvhbv.com/english/
traits).However,in 2005,in the aftermath of the Zhou and Zhang affairs,the Ministries of Health and Personnel drafted the first health standards for public servants9.A new regulation was issued,mostly to ease the tensions resulting from the wave of sympathy the Zhou and Zhang cases caused,called General Standards on Physical Examinations Relating to the Employment of Civil Servants3 These standards officially allowed people with hepatitis B and other diseases or disabilities to be hired for a government position.Nonetheless,it may be quite possible that some discrimination persists in a number of local governments and agenciess2 iii)Physical traits Discrimination based on physical attributes is perhaps the most widespread type of discrimination in China,like anywhere else.Chinese employers,public and private,are often known to give importance to factors such as good look,height,weight,body-shape and, obviously,disabilities33.Many cases physical discrimination have been reported.One example is a man who could not be hired as teacher because his height was below the required standard34.The China Daily published an article on discrimination in public service recruitment revealing thatmany regional governments had regulations disqualifying public servants with physical disabilities'and that some regulations limit public servants'height and some provinces had strange requirements for the appearance of public servantss5.It also reported that agencies in the Hunan Province used to refuse women having asymmetrical 4 Hep B carriers allowed to join public service (China Daily,January 1,2005),available online at http://www.chinadaily.com.cn/english/doc/2005-01/21/content 411013.htm. s0 Xun Zeng,supra note 10,at 1004. 51ld. 52 Ronald Brown,supra note 11,at 383. 53 Charles Chen and Jihong Wu,supra note 14,at 40. 41d. sHep B carriers allowed tojoin public service.supranoe50. 10
10 traits). However, in 2005, in the aftermath of the Zhou and Zhang affairs, the Ministries of Health and Personnel drafted the first health standards for public servants49 . A new regulation was issued, mostly to ease the tensions resulting from the wave of sympathy the Zhou and Zhang cases caused, called General Standards on Physical Examinations Relating to the Employment of Civil Servants50 . These standards officially allowed people with hepatitis B and other diseases or disabilities to be hired for a government position51 . Nonetheless, it may be quite possible that some discrimination persists in a number of local governments and agencies52 . iii) Physical traits Discrimination based on physical attributes is perhaps the most widespread type of discrimination in China, like anywhere else. Chinese employers, public and private, are often known to give importance to factors such as good look, height, weight, body-shape and, obviously, disabilities53. Many cases physical discrimination have been reported. One example is a man who could not be hired as teacher because his height was below the required standard54 . The China Daily published an article on discrimination in public service recruitment revealing that ‘‘many regional governments had regulations disqualifying public servants with physical disabilities’’ and that ‘‘some regulations limit public servants' height and some provinces had strange requirements for the appearance of public servants’’55. It also reported that agencies in the Hunan Province used to refuse women having asymmetrical 49 Hep B carriers allowed to join public service (China Daily, January 1, 2005), available online at http://www.chinadaily.com.cn/english/doc/2005-01/21/content_411013.htm. 50 Xun Zeng, supra note 10, at 1004. 51 Id. 52 Ronald Brown, supra note 11, at 383. 53 Charles Chen and Jihong Wu, supra note 14, at 40. 54 Id. 55 Hep B carriers allowed to join public service, supra note 50
