Ambivalence and Activism: Employment Discrimination in China

By Webster, Timothy | Vanderbilt Journal of Transnational Law, May 2011 | Go to article overview

Ambivalence and Activism: Employment Discrimination in China


Webster, Timothy, Vanderbilt Journal of Transnational Law


ABSTRACT

Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to ground legal challenges against employers who discriminate against them in the hiring process. Plaintiffs' relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists, and scholars who actively support plaintiffs, suggesting a limited role for civil society in the world of Chinese law. Although many problems remain with employment discrimination, China has made concrete steps toward repealing a legal edifice of discrimination that stretches back decades and reshaping policies and attitudes to eradicate a prevalent form of discrimination, targeting carriers of infectious disease.

TABLE OF CONTENTS

I. BACKGROUND
   A. Historical Background
   B. Defining Discrimination
II. CHINESE DISCRIMINATION
   A. Job Advertisements
   B. Statistics
   C. Personal Experiences
III. THE LAW OF EMPLOYMENT DISCRIMINATION
   A. Antidiscrimination Law
   B. Discriminatory Laws and Their Repeal
      1A. Gender Discrimination
      1B. Efforts to Reform Gender
        Discrimination
      2A. Hukou Discrimination
      2B. Efforts to Reform Hukou
        Discrimination
      3A. Discrimination Against Infectious
        Disease Carriers
      3B. Efforts to Reform Discrimination
        Against Infectious Disease Carriers
IV. THE HBV SOCIAL MOVEMENT
V. EMPLOYMENT PROMOTION LAW
   A. Provisions
   B. Cases
   C. Problems
VI. CONCLUSION
   SOURCES FOR APPENDIX

In 2003, two young college graduates almost got jobs in China's elite civil service. (1) Zhou Yichao, handsome and twenty-three years old, scored well on both the written test and the oral interview, ranking eighth of the 157 applicants. Zhang Xianzhu, twenty-five years old and bespectacled, ranked first among the thirty applicants in his hometown. Both men then took medical examinations, the final phase of the Chinese hiring process. Their medical examinations revealed that both men carried the hepatitis B virus (HBV), and according to provincial regulations on civil service examinations, this rendered them ineligible for government posts. Both were surprised by this result.

Zhou Yichao first contemplated suicide, but upon reconsideration, he bought a paring knife, went to the government office to ask about the results, and then stabbed two civil servants, killing one. Zhang Xianzhu also took an unexpected course of action. He retained a prominent discrimination lawyer and sued the government agency for violating his constitutional rights. Around these two cases--the murder trial of Zhou Yichao and the administrative litigation initiated by Zhang Xianzhu--a legal movement coalesced. China's HBV community, which at that point consisted of a couple of online chat rooms and discussion boards, seized upon these cases to launch a multifaceted campaign to introduce antidiscrimination laws, eliminate employment discrimination, and change social attitudes more generally. Somewhat remarkably, HBV advocates have largely succeeded in the first mission, lobbying government bodies to institute legal protections. However, like discriminatory attitudes more generally, discrimination by employers remains deeply rooted in contemporary China.

Since these events unfolded in 2003, advocates have petitioned government bodies, conducted campaigns to increase public understanding of the actual health risks of HBV, and litigated dozens of discrimination lawsuits. The government's response has been impressive. In at least three national laws (falu) and six administrative regulations (guize), Chinese government bodies have addressed the employment rights of disadvantaged Chinese, including women, ethnic minorities, the disabled, and carriers of infectious diseases (like HBV and AIDS). …

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