On Gender Discrimination in Chinese Employment

January 2, 2015
Editor: Kiki Liu

Liu Bohong, researcher at Women's Studies Institute of China, under the All-China Women's Federation [Women of China English Monthly August 2014]

I recently read an article by a professor, at Renmin University, who proclaimed "gender discrimination in employment is overestimated." I disagree with that point of view; instead, I believe gender discrimination is being underestimated.

China in 1980 subscribed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). That means the Chinese Government is obliged to eliminate all forms of discrimination against women, and that includes discrimination in employment. With CEDAW in mind, it is appropriate to examine gender discrimination in employment in China.

The CEDAW defines discrimination against women as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."

In 2010, some 30 years after CEDAW was implemented, the United Nations Committee on the Elimination of Discrimination against Women introduced General Recommendation No. 28 to extend the definition of discrimination against women to gender-based discrimination. The committee called for the elimination of direct, indirect and intersecting forms of discrimination against women.
Since 1978, when China adopted its policy of reform and opening up, human rights in China have developed at an unprecedented rate. In 2004, China amended its Constitution to include, "The State respects and safeguards human rights." That means China accepts the principle of human rights must be taken into account when governing the country. That principle has been included in reports by the National Congress of the Communist Party of China, in national economic- and social-development plans and the National Human Rights Action Plan of China. Thus, it has enhanced the process of China's human rights cause.

Even so, the concept of respecting and protecting human rights — as a universal value — has a short history in China. As such, Chinese generally lack awareness of the principles of equality and nondiscrimination. China hasn't defined either discrimination against women or discrimination in employment in any of its laws. That affects the implementation of CEDAW in China, and it affects the fight against discrimination in China. Hence, it is necessary to include the basic concepts in CEDAW when discussing issues related to gender discrimination in employment.

Direct Discrimination in Employment

Direct discrimination "constitutes different treatment explicitly based on the grounds of sex and gender differences (General Recommendation No. 28)." It refers to discrimination-oriented behavior and/or neglect, and it is also called "formal discrimination" or "goal-directed discrimination." It occurs when, under the same circumstances, an individual and/or a group are treated worse than others. Direct discrimination, which is usually obvious and blatant, is prohibited by law.

Among Chinese, there is an inconsistent view of direct discrimination. The Interim Regulations on State Civil Servants (issued by China in 1993) stipulate that men should retire at 60, and that women should retire at 55. According to the definition of discrimination against women, as stated in CEDAW and General Recommendation No. 27 (issued in 2010), China's retirement policy for civil servants is a form of gender-based discrimination. As such, it is a form of direct discrimination. The policy affects female civil servants' rights to employment, to have a choice, to development, to social security, and to participate in political affairs. Yet, policymakers, intellectuals and even some female civil servants think the policy actually protects women and discriminates against men.

Chinese also have differing views on various issues, including discrimination against pregnant women, occupational segregation, equal pay for equal work (mentioned in CEDAW as equal pay for work of equal value) and sexual harassment in the workplace. Given that so many people have no idea what discrimination is, how can people overestimate discrimination in employment?

Indirect Discrimination in Employment

Indirect discrimination "occurs when a law, policy, program or practice appears to be neutral, as it relates to men and women, but has a discriminatory effect in practice on women because preexisting inequalities are not addressed by the apparently neutral measure. Moreover, indirect discrimination can exacerbate existing inequalities owing to a failure to recognize structural and historical patterns of discrimination and unequal power relationships between women and men (General Recommendation No. 28)." 
Indirect discrimination, which emphasizes the consequences and substantiality of discrimination, is also called "substantive discrimination."

Most Chinese don't understand the concept of indirect discrimination. It usually occurs when a policy appears to be neutral and is not intended to be discriminatory, but unintentionally has a discriminatory effect against a certain group of people. As most government policies in China are not meant to be discriminatory, few Chinese have realized the policies can result — under certain social norms — in discrimination.

For example, many banks have policies that require people to have assets and/or property deeds and/or guarantors to be approved for a loan. Ninety percent of Chinese don't consider such a policy to be a form of discrimination. Yet, under such provisions, it's hard for poverty-stricken people, including women, to obtain loans — which they need to live and develop — on an equal basis. That's why the Chinese Government and NGOs have advocated microfinance for women and laid-off workers.

As so many people do not realize the discriminatory effects caused by neutral policies, it is natural that so many people are ignoring discrimination in employment rather than overestimating it.

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