The social public interest in China's employment anti-discrimination laws and its realisation paths

ABSTRACT

Despite its close relationship to employment rights, the concept of the public interest in labour law lacks extensive discussion. Even fewer scholars have studied employment discrimination in China from this perspective, despite China signing many international Conventions and Recommendations related to employment rights. This article analyses the social-based attributes in China's employment anti-discrimination laws, arguing that the laws should prioritise the protection of public interests. It then distils the connotation of the social public interest carried by the laws from the perspectives of legal values, the independence of legal interest, and legislative purposes. Subsequently, this article examines the implementation of the laws at judicial and administrative levels, identifying limitations in individual-oriented approaches and deficiencies in safeguarding the public interest. These limitations and deficiencies primarily manifest in the fact that labour agencies generally do not accept employment discrimination complaints or subtly exclude hiring processes from the scope of administrative enforcement, while courts are accustomed to a private law rationale of compensating for actual losses. Accordingly, this article suggests establishing and maintaining a fair labour market competition order by imposing punitive damages to deter potential discrimination, activating administrative enforcement to rectify past discrimination, and guiding employers to proactively assume social responsibility.

KEYWORDS:

• Human rights
• equal employment rights
• social public interest
• employment discrimination
• China
• employment anti-discrimination laws
• Employment Promotion Law of the PRC

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

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30 For example, Article 20 of the Law of the PRC on the National Flag provides that

The National Flag or the design thereof shall not be used as a trademark, for the design for which a patent right is granted, or for commercial advertising purposes, and shall not be used in private funeral activities or under other inappropriate circumstances.

Article 13 of the Law of the PRC on the National Emblem provides that

The National Emblem and the design thereof shall not be used in: (1) Trademarks, designs for which patent rights are granted, and commercial advertisements; (2) Daily necessities, and furnishings or ornaments in daily life; (3) Private activities of celebration or condolence; and (4) Other circumstances where the National Emblem and the design thereof may not be used, as prescribed by the General Office of the State Council.

31 For example, Article 3 of the Civil Code of the PRC provides that ‘The personal rights, property rights, and other lawful rights and interests of the parties to civil legal relations shall be protected by law, and no organization or individual may infringe upon such rights and interests’. Articles 1002–1004 of the Civil Code successively provide that a natural person enjoys the rights of life, the rights of inviolability and integrity of person, and the rights of health, upon which ‘no organization or individual may infringe’.

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37 See Chapter III (Fair Employment) of the Employment Promotion Law of the PRC, Chapter II (Promotion of Employment) of the Labor Law of the PRC, Chapter V (Rights and Interests of Labor and Social Security) of the Law of the PRC on the Protection of Women's Rights and Interests and Chapter IV (Employment) of the Law of the PRC on the Protection of Disabled Persons.

38 Shouwen Zhang, ‘Adjusting Scope of Social Law and Its Extension in Theory’, Social Sciences in Chinese Higher Education 2013, no. 4 (2013): 137.

39 For example, the Criminal Law of the PRC is a typical public law in China. Its Article 2 (Legislative Task Clause) demonstrates a notable hierarchy and diversity, starting with ‘to defend national security, the political power of the people's democratic dictatorship, and the socialist system’ (state power). It then moves on to ‘to protect citizens' privately owned property and personal rights’ (private rights of individuals), and concludes with ‘to maintain social and economic order’ (social public interest). Similarly, Article 1 (Legislative Purpose Clause) of the Civil Code of the PRC, the most important private law in China, begins with ‘protecting the lawful rights and interests of the parties to civil legal relations’ (primarily about private rights of individuals), and then declares ‘maintaining the social and economic order’ (social public interest).

40 PKULAW. COM, ‘Employment Promotion Law of the People's Republic of China (2015Amendment)’, https://www.pkulaw.com/en_law/1e8e09abdbcff012bdfb.html (accessed June 21, 2023).

41 Slavica Chubrikj and Neda Chalovska Dimovska, Use of Actio Popularis to Cases of Discrimination (Skopje: Helsinki Committee for Human Rights, 2016), 6, 18.

42 Rodgers, ‘Labour Law and the Public Interest: Discrimination and Beyond’, 311.

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47 Ibid., 322.

48 Seldon v Clarkson Wright & Jakes (2012) 3 All ER 1301.

49 Hamilton Jones Koller, In the Matter of (1997) EOC 92–906.

50 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).

51 Writing Team of Labor and Social Security Law, Labor and Social Security Law, 5–6.

52 Wang, ‘The Legal Interest of Economic Law’, 63.

53 Shangshang Liang, ‘Stratified Structure of Interest and the Unfolding of Interest Measurement’, Chinese Journal of Law 24, no. 1 (2002): 57.

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62 See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417–22 (1975).

63 See Mardell v. Harleysville Life Insurance Company, 31 F.3d 1221, 1234 (3d Cir. 1994).

64 Stephen Plass, ‘Private Dispute Resolution and the Future of Institutional Workplace Discrimination’, Howard Law Journal 54, no. 1 (2010): 77.

65 Corbett, ‘The Ugly Truth About Appearance Discrimination and the Beauty of Our Employment Discrimination Law’, 175.

66 Some infectious diseases are also absolutely immutable, such as AIDS.

67 For some devout religious believers, religious beliefs are likewise extremely or relatively immutable.

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71 Charles J. Ryan, Jr., ‘The Scope of the Bona Fide Occupational Qualification Exemption Under the Age Discrimination Act’, Chicago-Kent Law Review 57, no. 4 (1981): 1157, 1173.

72 Wang, ‘Administrative Enforcement Mechanism in China’s Employment Discrimination Law’, 155.

73 Shortly before the adoption of the regulations, the Social Construction Committee of the Guangdong Provincial People's Congress held a forum on the draft regulations for comments. When the author indicated the problem, leaders of the Human Resources and Social Security Department of Guangdong Province acknowledged the problem. However, due to the limited human, material, and financial resources of the labour supervision department, they claimed there was no alternative.

74 There are two exceptions to this conclusion. First, under Articles 24 and 43 of the Interim Regulations on Human Resources Market, if a recruitment advertisement published by the employer inherently contains discriminatory content, the labour administration may enforce the law against the responsible party. Second, Article 49 of the recently amended LPWRI provides for the first time that,

Human resources and social security authorities shall incorporate gender discrimination practices in the process of recruitment, employment, promotion in post or rank, certification of and appointments based on professional qualifications, training, and dismissal into the scope of labor security supervision.

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79 See (2016) Guangdong 0183 Civil Trial 901.

80 See (2019) Liaoning 1104 Civil Trial 1964.

81 Paul M. Secunda, ‘A Public Interest Model for Applying Lost Chance Theory to Probabilistic Injuries in Employment Discrimination Cases’, Wisconsin Law Review 2005, no. 3 (2005): 777.

82 It is noteworthy that the judicial remedy-based implementation employed by the U.S. employment anti-discrimination laws is similar to that in China, involving the establishment of a permanent federal agency, the EEOC. The EEOC investigates and mediates employment discrimination charges filed by employees or files lawsuits on their behalf when necessary. Thus, an employee must file a charge with the EEOC before pursuing an employment discrimination lawsuit in federal court. If the EEOC fails to conciliate or determines that the charge lacks reasonable cause, the employee has 90 days to file a lawsuit. However, there are two exceptions to this statutory pre-emption of administrative remedies: first, an employee alleging age discrimination under the Age Discrimination in Employment Act may bypass this pre-emption by notifying the EEOC in writing 30 days in advance of the intent to file suit in federal court. Second, employees alleging gender-based discrimination in compensation under the Equal Pay Act may bypass the EEOC by filing an employment discrimination lawsuit in federal court. See U.S. Equal Employment Opportunity Commission, ‘Filing a Lawsuit in Federal Court’, https://www.eeoc.gov/federal-sector/filing-lawsuit-federal-court (accessed April 22, 2023).

83 Cao, ‘Judicial Remedy of Equal Right to Employment in the Transitional Period of Population Policy’, 182–3, 190.

84 See (2014) Xihu District of Hangzhou Civil Trial 1848; (2015) Hangzhou Civil Final 101; (2016) Beijing 03 Civil Final 195; (2016) Guangdong 01 Civil Final 10790; (2016) Zhejiang 01 Civil Final 7987; (2016) Guangdong 0183 Civil Trial 901.

85 Haonan Yang, ‘Choice of Approaches to Improve the Dismiss Protection System in China’, Law Science 439, no. 6 (2018): 154–5.

86 William R. Corbett, ‘Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself’, American University Law Review 62, no. 3 (2013): 449.

87 Elizabeth R. Langton, ‘Workplace Discrimination As a Public Health Issue: The Necessity of Title VII Protections for Volunteers’, Fordham Law Review 83, no. 3 (2014): 1479.

88 Corbett, ‘Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself’, 463.

89 See 29 U.S.C. § 626(b).

90 See 42 U.S.C. § 1981a(b)(3); 42 U.S.C.§ 12117(a).

91 See Newport v. Fact Concerts, Inc., 453 U.S. 247, 266–70 (1981).

92 Secunda, ‘A Public Interest Model for Applying Lost Chance Theory to Probabilistic Injuries in Employment Discrimination Cases’, 778.

93 PKULAW. COM, ‘Interpretation of the Supreme People's Court on Problems Regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts’, https://www.pkulaw.com/en_law/7ca8332edc26eb0ebdfb.html (accessedApril 22, 2023).

94 Although there is no accurate data on the average success rate of plaintiffs in employment discrimination cases in China, the low success rate of plaintiffs is evident in both academic and practical circles. In addition, although the U.S. anti-discrimination laws have established a mechanism for shifting the burden of proof and punitive damages, the judicial practice in the United States from 1979 to 2006 reveals that the average success rate of plaintiffs in such cases is only 15%, compared to the average success rate of 51% for plaintiffs in other civil cases during the same period. See Kevin M. Clermont and Stewart J. Schwab, ‘Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse’, Harvard Law & Policy Review 3, no. 1 (2009): 127.

95 Wang, ‘Administrative Enforcement Mechanism in China’s Employment Discrimination Law’, 159.

96 Taking the U.S. as an example and considering the time, cost, and difficulty of proving employment discrimination charges in court, statistics indicate that only 5% of U.S. employees who complain of unfairness in the workplace choose to file a lawsuit. Furthermore, only 0.06% of employees proceed through the entire judicial process and ultimately obtain a court decision. See Laura B. Nielsen and Robert L. Nelson, ‘Rights Realized? An Empirical Analysis of Employment Discrimination Litigation as a Claiming System’, Wisconsin Law Review 2005, no. 2 (2005): 681–2.

97 Selmi, ‘The Evolution of Employment Discrimination Law: Changed Doctrine for Changed Social Conditions’, 982.

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Additional information

Funding

This paper was supported by the National Social Science Foundation of China [grant number: 21FFXB019] and the Fundamental Research Funds for the Central Universities [grant number: 23JNLH11].

Notes on contributors

Haonan Yang

Haonan Yang is a professor of law at Guangdong University of Foreign Studies, China, with research interests in comparative labor and employment law. He is also an adjunct lawyer at Guangdong Fangxiao Law Firm, China.