(The following is a summary of a joint study by Utrecht University and the China University of Political Science and Law. The project was coordinated by Cai Dingjian, who is head of the constitution law research center at the latter. Original article: Chinese)
Tearing Down Institutionalized Hiring Discrimination
From page 47, The Economic Observer issue no. 331, September 3, 2007
Employment discrimination in China is not limited to isolated cases, but rather, is institutionalizedby government organs through law. Eliminating this kind of legislative foundation is the first step in promoting fairer employment opportunities that are essential for a "harmonious society'.
In focusing our research on the legal foundation for discrimination in hiring practices, we found evidence in recruitment, public service, working environment, and access to public services. We use the term "discrimination" when one's birthplace, gender, age, height, and physical appearance become barriers to their employment. Based on the discoveries made in our research and our belief that such discrimination should be eliminated, we have submitted a proposal to the State Council regarding anti-employment discrimination.
General Practice in Recruitment Discrimination
(1)Place of Origin
Some local governments set limitations for recruiting migrant workers based on academic, age and health requirement. Some even spell out jobs that cannot be held by migrant workers, such as a regulation dated Sept 3, 2000, issued by the Zhuhai Municipal Council and termed "Categorized Management of Migrant Workers for Zhuhai Municipal Recruitment". The third clause states that "Categorized Management" refers to dividing jobs available in the municipality into three categories. One of the categories refers to positions that cannot be filled by migrant workers.
Local governments have been known to impose fees on or require permits and documents from employers who recruit migrant workers. Some even clearly state policy to limit the recruitment of migrant workers. One such "hiring principle" reads like this: "Give priority to city and town residents over the rural workforce; to local residents over those from other municipalities; and to residents from the local province over those from other provinces".
That said, the government – both at the central and state level – has in recent years emphasized social equality and taken steps to eliminate discriminative regulations. For example, on March 27, 2006, the State Council published "Several Suggestions on Resolving Problems of Migrant Workers". And on March 25, 2005, the Beijing Municipal People's Congress Standing Committee agreed to abolish a rule termed as "Regulations on Management of Migrant Workers and Migrant Businessmen in Beijing Municipality".
(2) Age Discrimination
There are many administrative rules, regulations and policies that set age factor as an employment barrier. For example, on Nov 18, 2002, the Shenzhen Municipal Human Resource Department released "Shenzhen Municipal Career Opportunities Recruitment Regulation", which stated that applicants for administrative and management posts must be aged 40 and below (exception for leadership position) while applicants for professional skilled position must be aged 45 and below (the age limit could be waved for those with exceptional professional skills or applying for special position with by the human resource department).
(3) Academic Discrimination
At times, academic requirements are imposed on jobs that in practice don't necessitate having an educational background. For example, the local government of Yichang Municipal requires cab drivers to have at least junior secondary education, while the local government of Chengdu of Sichuan province requires security guards to complete high school. It is unfair to deny jobs to people who due to various reasons have no access to education, especially when the academic requirement is irrelevant to job function.
Public Service Enrollment Discrimination
(1) Public Service Staff Recruitment Requirement
Age limit: the Human Resource Ministry released "The State Public Servant Recruitment Regulations" on June 7, 1994, in which, the 14th clause stated that an applicant must be age 35 and below.
Physical appearance: In a notice dated August 13, 1993, to local level courts and prosecutor offices regarding staff performance, it was mentioned that staff should have "pleasant facial features".
Birth place and locality origin: On April 29, 1996, the Beijing local government released "Beijing Municipal State Public Servant Recruitment Strategy", requiring applicants to have a Beijing-based hukou (registered place of birth and residence).
Academic: On June 7, 1996, the Human Resource Ministry released "State Public Servant Recruitment Regulations", requiring a bachelors degree for government positions at the provincial level.
(2) Medical Check-up for Public Service Enrollment
Prior to the release of "Public Servant Pre-enrollment Medical Check-up Standard Practices (trial)", each local government had its own set of requirement.
For example, the Tianjin Municipal Human Resource Department had a set of rules dated May 14, 1999, as "Requirement for Medical Check-up of Public Servants Recruited for Tianjin Municipal". The male public servants needed to be taller than 1.60 meters and weigh more than 50kg. The Henan local government rejected applicants who were color blind, vision problems, and even those with blindness in one eye. Meanwhile, the Hunan local government rejected one applicant who did not have the sense of smell. And the Guangdong local government has stated that applicants with the following handicaps or disabilities would be rejected: speech impediment (if there were more than two words in one sentence being repeated twice or speech was obviously unclear), physical handicap that affects bodily function, including amputated hand, arm, foot, leg, left hand's thumb, index finger or middle finger, right hand's thumb, index finger, middle finger or little finger, or any other bodily dysfunction (including the use of artificial limbs).
Base on our analysis, some of the requirements stated were irrelevant to the function of public servant, such as height, weigh, physical appearance, dental history, sense of smell, and color vision. The authorities have also overlooked the possibility of rectifying certain handicaps through modern technologies, such as vision and hearing aids.
Finally, some of the requirements were downright bizarre and irrational, such as demanding females to have "symmetrical breasts".
Gender Discrimination
(1) Different Retirement Age for Male and Female
The law in our country puts the retirement age for men at 60 and 55 for women.
(2) Exclude Pregnant Women
On July 3, 2001, the Human Resource Department of the Police Force published "Medical Check-up Requirements and Standards for Recruiting Police Personnel", in which, the 45th clause stated that pregnant woman cannot be recruited. Similar clauses also appeared in procedure of prison warden and personnel recruitment.
(3) Physical and Health Traits
On February 24, 2002, Hunan Province published a similar regulation stating that: "Females are required to have undergone normal development, have symmetrical breasts, with no genital inflammation..."
Discriminating Along Social Lines
(1) Same Person, Different Price
Under the 25th clause of "The Supreme People's Court on Handling Cases Related to Compensation for Harmed Persons", it ruled that compensation to victims who had lost their ability to work or were disabled, should be based on the annual average income of the locality of their hukou, or "registered residence". As a result, in cases involving death or disability, the original residence of the victim drastically affected compensation.
(2) Social Security
At present, there is no law relating to social security and insurance policy that discriminates against rural migrant workers. However, in reality, the probability of them participating in the social security system is much lower. Some places introduce a social security plan to them that differs from the five types of insurances demanded by the State. Rural migrant worker in general enjoy a smaller variety of insurance policies when compared to a city workforce.
(3) Subsidized Housing
Economic housing is born of government social welfare policy-- thus everyone should be treated equally in it its implementation. But some local governments give priority to people with professional skills, teachers, or public servants. Some have even ruled that people from certain organizations have priority in securing larger housing units. This is discrimination based on one's social status.
Conclusion
Employment discrimination is a serious social problem in China. Resolving it is not just in the public's interest, but it has implications for social stability. When drafting regulations related to employment requirements, the government must first study the nature of the job and identify what qualities an employee needs to successfully accomplish it. Eradicating discrimination in hiring practices hinges on whether or not the government seizes responsibility and leads by example.
