Reflections on the discriminatory effect of employment quota with referring to the experience of disabled people in China

Abstract

Employment quota is one of the affirmative action measures, outlined by the Committee on the Rights of Persons with Disabilities in its General Comment, to increase the employment of disabled people in both public and private sectors. Existing literature has studied the implementation, outcome, and effectiveness of the employment quota, majorly by quantitative data, while the empirical evidence of how it influences the right of disabled people to work is relatively limited. The practice of employment quota in China suggests the possibility of underpinning discrimination and exclusion and thus puts disabled people in a more disadvantageous position. This paper empirically examines how the discriminatory effect of the employment quota is shaped, with a particular focus on the interaction between the quota policies and stakeholders.

Keywords:

• Right to work
• disabled people
• employment quota
• non-discrimination
• China
• The Convention on the Rights of Persons with Disabilities

1. Introduction

The Convention on the Rights of Persons with Disabilities (CRPD) reclaims the right of disabled people to work on an equal base with others. Employment quota that mandates the reservation of a specific percentage of the workforce for disabled people is recognized by the Committee on the Rights of Persons with Disabilities (the CRPD Committee) as an affirmative action measure to increase the employment of disabled people in both public and private sectors (Committee on the Rights of Persons with Disabilities 2022). Existing literature has shed light on the controversies of whether the employment quota represents an appropriate approach to promoting the right of disabled people to work or constitutes a form of discrimination. This paper examines the discriminatory effect of employment quota experienced by disabled people in China, and in particular, how such effect is shaped through the interaction between quota policies and other relevant factors, namely, the employer, the families of disabled people, and civil society organizations (CSOs) working on the right of disabled people to work.

2. The conceptual framework of the right to work

The right to work has been recognized as a fundamental human right in most International Human Rights Law instruments including the CRPD. According to the international human rights law jurisprudence, the meaning of work lies, not only in itself but also in that it is a way to facilitate the person to have effective participation and full inclusion in society.

The realization of the right to work is a continuum containing different stages, such as pre-career preparation, the course of employment, transitions between roles, training and mentorship, career advancement, vocational rehabilitation, and job retention. The degree to which a disabled person enjoys the right to work on an equal basis with others should be examined in accordance with the general principles stipulated in Art. 3 of the CRPD, especially the principles of non-discrimination and respect for individual autonomy and independence.

3. The interaction between employment quota and other factors in China

Liao (2021) has explained the element and evolvement of the quota-levy system, the signature policy for promoting disabled people’s employment in China, and the discrepancy between law and practice observed in its implementation.

It is important to add and highlight that China has not yet adopted anti-discrimination legislation to promote equality in employment. The current law sets forth only abstract requirements prohibiting discrimination based on disabilities in employment, but neither a definition nor a remedy for discrimination. It has been observed for years that direct and indirect discrimination and harassment against disabled people are widely conducted by employers in both public and private sectors. The knowledge or awareness of reasonable accommodation is largely absent in the workplace. This is the legal-social context where the employment quota works and interacts with other factors.

3.1. Employers

Fulfillment of employment quota under the current policy is majorly proved by the number of disability certificate holders registered under the employer as full-time employees. As has been observed in practice, the effectiveness of such formalistic policy is very limited as even the best-intentioned employers are mobilized only to hire legally registered disabled people, most of whom require few reasonable accommodations or assistances at work.

For employers intending to evade their legal obligation of hiring disabled people, as has been examined by Liao (2021) and others, the quota policy leaves room for them to resort to the widely known approach of guakao (挂靠), i.e. paying wages and social insurance premiums for a person with a disability certificate who does not actually work there.

Guakao constitutes a typical example of what the CRPD Committee recognizes as ‘fake’ employment. It is compatible with neither the human rights principles underlying the right to work nor the purpose of domestic quota policies. However, in an institutional structure lacking statutory duty of anti-discrimination in employment, many employers do not consider guakao as skirting the policy. They even justify guakao as a way to provide welfare benefits to disabled people because they offer disabled people money without requiring them to do any work.

3.2. The families of disabled people

In China’s socio-cultural context, the families, in most cases, are the core supporter of disabled people. Although they are not directly involved in the practice of employment quota, their knowledge and attitudes may further influence how the quota policies interact with disabled people and other actors.

Some families of disabled people show hesitation toward employment quota with two major concerns. One is that formal disability registration, as the precondition of being included in a quota scheme, may impose restrictions on other parts of the person’s daily life, including continual career advancement. The other is that, in absence of an appropriate interface between employment quota and welfare policies, disabled people have to make the either/or choice between welfare benefits and wages. As the wages of most jobs offered under the quota are relatively low, similar to or even less than from a welfare package, it is possible that having a job may put disabled people and their families at a greater economic disadvantage. Given these concerns, some families of disabled people may strongly advise the disabled person to opt-out the employment under quota policies, or, especially in cases with persons with developmental disabilities, the families may make substitute decisions for them.

Some families of disabled people, on the contrary, are more actively engaged in the employment quota, especially its problematic use of guakao. Since the information regarding employment policies is not always available or accessible to families of disabled people, some of them do not aware that guakao in fact exploits policy loopholes and narrows the opportunities of work for disabled people. Some families, especially those who are not entitled to a welfare package, tend to regard it as an alternative welfare scheme. They actively respond to the employer’s request for disability certificate or even assist employers in refining false employment records. In this case, the quota policy, together with the lack of access to information, somehow turn the families from the key supporter to the one depriving disabled people of the real opportunity to work.

3.3. CSOs working on the right of disabled people to work

The roles played by CSOs working on the right of disabled people to work can be categorized into two main types. One is to be the watchdog of the implementation of quota policy, the revenue generation, and expenditures of Employment Security Fund (ESF), the money of which is from the quota-levy system. However, due to the lack of transparency in the administration, CSOs can play only limited monitoring functions. The other is to provide employment-related services for disabled people. Such services are supposed to be funded by the ESF, however, it is usually hard for CSOs to get funding from the ESF.

What makes the symbiotic influences between the quota policies and the CSOs more paradoxical is that some of the CSOs have been observed to reach consensus with both employers and families of disabled people on the problematic approach of guakao. In cases where the employers argue that guakao leads to a win-win situation and are agreed by the families of the disabled people, the CSOs expressed their inclination to respect and support the choices and preferences of the families of disabled people. Some of the CSOs even point out that some disabled people are not capable of working and as they can get money without going to work through guakao, there is no need to ‘push’ them to work.

Such interaction raises several concerns that, first of all, it alienated the will and preferences of disabled people. In addition, CSOs as one of the important supportive resources for disabled people to pursue their right to work are arguably undermined by the quota policy. As pointed out before, the limited access to information or options is one of the factors driving the families of disabled people to turn to guakao. Expanding the accessibility to information and options should be one of the supports that CSOs provide to disabled people and their families. However, in cases where the CSOs fail or neglect to do so, they tend to easily justify themselves by stating that they respect the choice of families of disabled people to resort to guakao.

4. Conclusion and further discussion

Observing how the employment quota is understood, implemented, or misused in current practice in light of the conceptual framework of the right to work reveals the limitation of quota policy. While the right to work is realized through a continuum, the quota policy overwhelmingly focuses on the moment that the person is engaged as an employee and overlooks the other stages such as pre-vocational training and internship. The narrow scope of the quota policy undermines its intention to promote the right of disabled people to work.

What has been observed in the current practice further indicates that the implementation of quota deviates from the human rights principles underlying the right to work. It has the effect of discriminatorily excluding disabled people from the labour market, denying their autonomy, and reinforcing the stigmatization of disabled people. It also has the effect of transforming the potential supporter of disabled people into sources of oppression.

Given the above conclusion, though, this paper does not deny that employment quota, if implemented properly, can be an affirmative action measure to promote the right of disabled people to work. Three points of view are raised for further discussion.

First, it is necessary to raise awareness among employers, disabled people, and the general public about employers’ legal obligation to eliminate disability-based discrimination in labour market. Many countries have introduced anti-discrimination legislation alongside quota policy (International Labour Organization 2019), which may better include the employment quota in a human rights context. This merits further discussion in China’s context.

Second, it is important to clarify the status of quota policy and its relationship to welfare benefits enjoyed by disabled people. The welfare benefits should be better distributed, and the employment support should be more available and accessible. Thus, disabled people may be encouraged to mobilize employment quota in a more rights-based approach rather than resort to guakao.

Third, the implementation of quota policy should be more diverse and flexible to cover more stages of labour market participation, such as pre-career preparation, vocational training, and internship. The implementation and monitoring of the quota should not only focus on the number of disabled people employed. Rather, it should have a clearer vision of opening more working opportunities for disabled people and facilitating employers to fulfill their obligation regarding eliminating disability-based discrimination in workplace more actively and effectively.

Disclosure statement

No potential conflict of interest was reported by the author.