Employment Discrimination Law Research in China: A Reflection on Current Approaches and a Discussion

AuthorJiefeng Lu
Pages3-18
TCL 4- (DO NOT DELETE) 4/19/2012 6:04 PM
2012 EMPLOYMENT DISCRIMINATION 3
EMPLOYMENT DISCRIMINATION LAW RESEARCH IN
CHINA: A REFLECTION ON CURRENT APPROACHES AND A
DISCUSSION
Jiefeng Lu*
Abstract
This article discusses the research methodolo gies employed in probing into employment
discrimination issues in China. It examines the three current research approaches, namely,
the Chinese Factsapproach, the Foreign Lawapproach and the Advanced Foreign
Laws trategy. Then, the ar ticle concludes that each of the current strategies has its own
limitations and suggests a new strategy that stresses the importance of using a theoretical
study to resolve real i ssues in real life and incorporating local resources to do so.
I. INTRODUCTION
Discrimination in the Chinese workplace has been well
documented.1 However, China’s anti-discrimination law is still in
the embryonic stages of development, both in theory and
practice. Studies from legal, social, and philosophical perspectives
on topics such as the definition of discrimination, the wrongfulness
of illegal discrimination, and anti-discrimination rationales, are much
less sophisticated than most studies from other countries. 2 In
practice, very few actions to redress employment discrimination have
emerged in Chinese courts, 3 and plaintiffs have encountered major
obstacles.4
* S.J.D., Temple University, Beasley School of Law (2011). Faculty of school of law, University of
International Business and Economics, Beijing, China. The author thanks Professor Scott Burris of
Temple University, Beasley School of Law for his guida nce in writing this paper. Thanks are also due
to Professor David H. Kaye of Penn State School of Law and Andrew Lessman for their comments. All
the translations are the author’s own.
The under-development of Chinese anti-discrimination
1 See, e.g., Jiefeng Lu, Employment Discrimination in China: Curren t Situations and Principle
Challenges, 32 HAMLINE L. REV. 133 (2009) [hereinafter Lu: Employment Discrimination]; Zhou Wei (
周伟) et al., Zhongguo de Laodong Jiuye Qishi: Falü Yu Xianshi (中国的劳动就业歧视:法律与现实
) [EMPLOYMENT DISCRIMINATION IN CHINA: LEGISLATION AND REALITY] (2006); Zhongguo Jiuye
Qishi Xianzhuang Ji Fan Qishi Duice ( 中国就业歧视现状及反歧视对策) [THE EMPLOYMENT
DISCRIMINATION IN CHINA: CURRENT CONDITIONS AND ANTI-DISCRIMINATION STRATEGIES] (Ca i
Dingjian (蔡定剑) ed., 2007); Xun Zeng, Enforcing Equal Emloyment Opportunities in China, 9 U. PA.
J. LAB. & EMP. L. 991, 991 (2007).
2 “Anti-discrimination rationale” refers to a set of theories for fighting against illega l
discrimination that typically includes a general moral consensus that discrimination is wrongful, a
general legal principle disfavoring discriminatory classifications, and analytical and philosophical
reasoning as to why discrimination should be eliminated.
3 See Jiefeng Lu, Curb Your Enthusiasm: A Note on Employment Discrimination Lawsuits in
China, 10 RICH. J. GLOBAL L. & BUS. 211, (2010).
4 See Lu, supra note 1, at 184.
6. LU.DOC (DO NOT DELETE) 4/19/2012 6:04 PM
4 TSINGHUA CHINA LAW REVIEW Vol. 4:107
legal mechanisms has deep cultural, economic and traditional
causes.5
This paper, however, is not intended to address anti-
discrimination litigation and the Chinese legal system
itself.
6
5 See Lu, supra note 1, at 172 (argument on the three aspects reflecting the complexity of the anti-
employment discrimination in China ) (“First, the economic expansion and privatization, along with the
transition from plan market to free market, results in more people coming out from rural area s; and
considering China’s large population, there is an imbalance between the availability of the supply of
human labor resources and the demand from the market, which places employers in a more
advantageous position in picking employees. This is exacerbated by the fact that in order to attract
foreign and domestic investors, the Chinese government, both central and local, provides many
incentives for employer s to have businesses in Ch ina. One of these incenti ves is what we call
employment autonomy. The autonomy leaves employers much discretion in selecting their employees
and places almost no limitations on discriminatory recruitment. Second, existing and potential social
unrest and economic harm that may be caused by the lack of anti-employment discrimination principles
have not seemed a direct and imminent threat to th e Chinese government. Th ese principles are that
discrimination based on those immutable charac teristics, such as gender, race, height, and age, is
fundamentally wrongful; and that discrimin ation based on other factors, such as appearance, HB virus
carrier status, migrant worker st atus, religious belief, marit al status, and ethnic minority statu sthose
not related to the p erformance of the jobis inherently unfair. There is a lack of internal force in the
government and the legislature for their commitment to eliminate discrimination in employment. Third,
incomplete anti-discrimination legislation and ineffective enforcement of this legislation, in addition to
the bureaucracy in courts, provides little incentives for those claiming discrimination and their attorneys
to resolve employment discrimination disputes through legal courses.”).
Rather, it focuses on the development of a scholarly
foundation for anti-discrimination law in China. It asks how
scholars should research anti-discrimination in China. The paper
notes that, initially, scholars were concerned with two main tasks in
employment discrimination law research: quantifying empirically the
existence of discrimination and trying to understand where China
stood in comparison with other countries in regulating
discrimination. In the former situation, scholars conducted
empirical research, and in the latter, scholars conducted comparative
research. This paper argues that both research strategies produce
useful but incomplete results. In the case of empirical research, such
research demonstrated a huge problem but could offer no
solution. The comparative research likewise showed that China had
a relatively limited legal infrastructure for regulating discrimination,
but the rather general comparisons did not provide the detail to help
move forward, nor did it address the peculiarities of the Chinese
context. Some scholars tried to fill in the gaps by drawing upon
foreign models and adapting them to the Chinese system. This had
the advantage of being fairly specific and practical, but it tended to
pay insufficient attention to Chinese conditions that might lead to the
rejection of the transplanted models.
6 See generally Lu, supra note 1; Lu, supra note 3.

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