The China Law Center Co-Hosts Workshop on Anti-Discrimination Law
The workshop brought together over fifty leading Chinese experts and officials representing key government ministries. The delegation of foreign experts included Professor Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School; Stuart Ishimaru, Commissioner of the U.S. Equal Employment Opportunity Commission; Professor Reva Siegel, Deputy Dean and the Nicholas deB. Katzenbach Professor of Law and Professor of American Studies at Yale University; and China Law Center Director Paul Gewirtz.
Professors Jack Balkin and Reva Siegel participate in the opening session of the anti-discrimination workshop in Chengdu
Discrimination is one of the most serious – and most under-appreciated – social problems in China. With the advent of market reforms, beginning in the late 1970s, China has seen historically unprecedented economic growth, and employers of all stripes have been empowered in ways that would have been unimaginable a generation ago. At least in urban China, a culture that mixed Socialist egalitarianism with heavy doses of traditional Chinese morality has been substantially displaced by a modern market culture. There have been dramatic changes in social mobility, employment choices, personal lifestyles, family structures, and the sense of individual opportunity.
With these changes, discrimination in many forms is becoming more widespread. Women complain that they are denied jobs because of their sex and are paid less for doing more, and that, when bad times hit, they are the first to be let go. Migrant workers from China’s countryside (who make up a significant percentage of China’s urban workforce) complain that they are victims of pervasive discrimination. Persons with certain diseases, including Hepatitis B and HIV, complain that even medical professionals refuse to deal with them, and that they are refused access to not only hospitals, but also schools and jobs.
The advancement of anti-discrimination law in response to all of these problems has been a relatively recent phenomenon, and anti-discrimination law remains quite undeveloped. The first anti-discrimination provisions in Chinese law were incorporated in the 1994 Labor Law; more specialized provisions, including those found in the 1995 Law on the Protection of Women’s Rights and Interests, followed soon thereafter.
The evolution of anti-discrimination law in China has accelerated since the early 2000s. Anti-discrimination advocates have benefited from a series of high-profile cases – of discrimination on the basis of height, place of origin, hepatitis B status, among others – that have received significant media attention. These cases have encouraged both the state and society to think about a number of different entrenched social practices in terms of discrimination.
Commissioner Stuart Ishimaru delivers a presentation on the second day of the workshop
The goal of the Chengdu workshop was to both take stock of the current state of discrimination law in China, and to explore the ways in which the American approach to combating discrimination might provide helpful insights for Chinese academics, lawyers, and activists seeking to continue the reform process.
Discussion at the conference centered on a number of key questions, including the problems raised by the lack of a clear, legally enforceable definition of discrimination in Chinese law; the positive and negative aspects of so-called paternalistic employment law provisions that exclude women from certain professions, including jobs that require arduous physical labor; and the feasibility of the creation of a central government organ to deal with discrimination claims in the workplace. Many of the participants in the conference emphasized that the fight against discrimination is a long-term process, one that will involve not only legal change, but also changes in social consciousness.
The two-day conference was the largest workshop ever to be held on the topic of anti-discrimination law in China. For Chinese coverage of the workshop, see Legal Theory, China International Science and Technology Cooperation, and the Sichuan University Website.