The
Employment Promotion Law of the People’s Republic of China
governs employment discrimination issues in the hiring process, and contains several relevant provisions.
Article 3 provides that, “No worker seeking employment shall suffer discrimination on the grounds of ethnicity, race, gender or religious belief.”
Article 26 requires employers and employment agencies to, “provide workers with equal employment opportunities and equitable conditions of employment, and shall avoid discriminatory employment practices.”
Article 28 states that, “Workers of all ethnic groups shall be entitled to equal labor rights.” The same article also states, that ethnic minority workers shall be treated, “appropriately in accordance with the law.”
Article 29 states that, “No employment unit [company] shall discriminate against handicapped persons.”
Though employment discrimination is prohibited by law, workers will often encounter such discrimination in the workplace or in searching for a new position. If an individual has been discriminated against he or she has the option to bring a lawsuit against the employer in court. Article 62 states, “In the event of any employment discrimination in violation of the provisions of this Law, the relevant worker(s) shall be entitled to initiate legal proceedings in the peoples’ court.”
The Labor Law of the People’s Republic of China
governs discrimination in the workplace. Here also, there are important anti-discrimination provisions. Article 12 states that “Laborers shall not be discriminated against in employment due to their nationality, race, sex, or religious belief. Article 13 outlines special protections for women:
Article 13 Women shall enjoy equal rights as men in employment. Sex shall not be used as a pretext for excluding women from employment during recruitment of workers unless the types of work or posts for which workers are being recruited are not suitable for women according to State regulations. Nor shall the standards of recruitment be raised when it comes to women.
There are several options for individuals who feel they have been a victim of discrimination in the work place. Article 77 provides, “In case of labor disputes between the employer and laborers, the parties concerned can apply for mediation or arbitration, bring the case to courts, or settle them through consultation.”
Both employers and employees should be aware of the benefits of including anti-discrimination terms in an Employee Handbook. A short handbook section describing prohibited discrimination, outlining internal procedures to report and handle discrimination cases, and indicating punishments for those found to violate company anti-discrimination policy may be helpful in avoiding disputes, or allowing the quick resolution of a discrimination issue according to handbook procedures before incurring the costs from arbitration or litigation of the matter.
The
Law on Promoting Employment
provides the avenue for employee or employee candidates to sue a company directly via litigation, which is a different route from other employment disputes which shall be filed for labor arbitration first, and then go to litigation.
The chance of success is hard to predict, which shall be subject to the matter and evidences, from our observation, success for an employee or employee candidate is relatively higher, as long as discrimination could be proved.
It is not clear the difference between a domestic Chinese company or a FIE, it is hard to say. In practice, we see most cases are against domestic Chinese companies.
Costs ought to be lower than arbitration plus litigation, as discrimination case mainly needs to prove the fact of discrimination.