By Lizzie Fulton
Anti-discrimination law is a new and developing field in China. While China does not have a separate body of anti-discrimination laws, the concept of non-discrimination is embedded in other areas of law, such as employment law and affirmative action policy. China’s Constitution guarantees general principles of equality before the law, and various statutes and administrative laws target particular protected classes, notably women and disabled persons. Yet enforcement of anti-discrimination principles in China faces many obstacles: the Constitution is rarely directly actionable in courts, definitions of discrimination are either vague or nonexistent, court cases have no real precedential effect, and there is little room for judicial interpretation of laws due to political control over the courts.
This past May, several dozen scholars gathered from around the world at the KoGuan Law School of Shanghai Jiaotong University to discuss new research on anti-discrimination law. This was the fourth annual meeting of the Berkeley Comparative Equality and Anti-Discrimination Law Study Group, led by Berkeley Law Professor David Oppenheimer. The conference was hosted by Professor Wang Bin of Jiaotong University and Professor Liu Xiaonan, director of the Constitutionalism Research Institute of Beijing’s China University of Political Science and Law, with a special appearance by Professor Zhou Wei of Sichuan University, the founder of comparative equality legal studies in China.
The conference was envisioned as a way to enhance mutual understanding of anti-discrimination law across the world, while deepening participants’ understanding of their own country’s laws. For two days, conference attendees cross-pollinated ideas of ways to influence and strengthen various facets of anti-discrimination law. Several themes made repeat appearances throughout the course of the two-day conference: the intersectionality of different forms of discrimination, common defenses, availability and enforcement power of remedies, whether and when there is a shifting burden of proof, and the extent to which disparate impact is of equal power to intentional discrimination, or unavailable entirely as a legal theory of liability.
Nearly every presentation touched upon the issue of defining protected groups, revealing huge variety in the characteristics that governments confer legal protection. Under Chinese law, for example, groups are generally defined narrowly; to be protected because of a disease, it must be an infectious disease. Further, claims of sexual harassment are largely limited to those made by female victims against male perpetrators. In various countries represented at the table, such as Turkey, socioeconomic status is a protected characteristic, a far cry from the rational basis review it is afforded in American jurisprudence. Discussions gave particular attention to the perils associated with under-inclusiveness and even over-inclusiveness of enumerated characteristics that merit protection.
Belgian scholars Emmanuelle Bribosia and Isabelle Rorive discussed equality and anti-discrimination law as naturally built upon the idea of comparison, i.e. males as comparators for females seeking protection from discrimination. Yet the search for comparators might lead to confusing results: who is the relevant male comparator for pregnant women? For Muslim women who wear head scarves, would the comparator be women who do not wear head scarves or women who wear other religious symbols? This confusion has at times even led to the dismissal of such cases. Accordingly, Bribosia and Rorive recommended a move away from the comparator framework of identifying protected groups in order to ensure more effective protection under anti-discrimination law.
Interestingly, the case that thrust anti-discrimination law into the mainstream legal discourse in China was a 2001 case on height discrimination in employment. Jiang Tao’s attorney was Zhou Wei, a participant at the May conference. While the court ultimately dismissed the case because the defendant bank removed its minimum height requirement policy (presumably due to negative publicity the case generated), and because height never rose to a protected characteristic, this was a seminal moment as the first case in China accepted by the courts involving an assertion of the right to equality and non-discrimination under the Constitution.
Professor Wang Bin expressed the hope that China will develop a distinct set of robust anti-discrimination laws in the coming years as scholars and lawyers push China’s judiciary to apply the principles of equality in China’s Constitution to discrimination cases and, through impact litigation, popularize notions of equality non-discrimination. As a start, the first comprehensive Chinese book on anti-discrimination law is set to come out later this year.