On February 21st, nine bodies –– including the Ministry of Human Resources and Social Security, the All-China Women’s Federation, and the Supreme People’s Court –– jointly published a Notice on Further Regulating Recruitment and Promoting Women's Employment outlining plans to enforce China’s current laws against gender discrimination in the workplace. Gender equality is hailed as a fundamental state policy of China, enshrined in the Constitution, and advanced by several laws like the women’s rights protection law, labor law, and employment protection law. However, these laws suffer from vague wording and weak implementation.
The notice aims to eliminate discrimination against women during recruitment and on the job. It targets specific discriminatory practices that have become exposed by the media and human rights organizations in recent years, such as employment recruiting advertisements explicitly stating a requirement or preference for men. Discriminatory practices are not only rooted in gender stereotypes and prejudices but also in the perceived costs of meeting legal entitlements available to women, such as paid maternity leave, allowance, and termination restrictions. The notice prohibits employers from asking job candidates their marital or childbearing status, requiring them to take pregnancy tests, restricting childbearing as a condition of employment, or applying higher recruitment standards for female candidates. Employers suspected of gender discrimination during recruitment will be subject to investigations and urged to take corrective measures if allegations are confirmed. Those who refuse to implement corrective measures could face fines of up to RMB 50,000 (about US$7,400) or further disciplinary actions.
The Chinese government’s promotion of women’s “deeper participation in social and economic activities” comes in response to a declining birthrate driven by the one-child policy. Despite that the decades-old policy was officially abandoned in 2016, China’s total fertility rate remains at the low level of 1.6 million. According to a report by the Chinese Academy of Social Sciences, China’s long-term low fertility rates will result in rapid aging of China’s population and demographic decline, leading to major challenges for Chinese society and the economy. It warns that “negative growth in China’s population is already an unstoppable trend” with fewer and fewer workers struggling to support an aging society.
The promotion of women’s employment in the context of the country’s demographic decline is in keeping with China’s overall approach to gender equality, which focuses on the ways in which women’s development can further advance the development of the nation as a whole. This “development model” towards gender equality is an outgrowth of the 20th century “socialist model,” which advanced gender equality under Mao Zedong as part of the Chinese revolutionary cause and socialist construction. As the dominant narrative goes, the Chinese Communist Party promoted social inclusion, liberated women from the household, and considerably expanded occupational fields open to women. At the same time, however, it made women’s interests subordinate to collective goals and constructed the socialist society based on the traditional family economy, which adhered to patriarchal norms that did little to alleviate women’s domestic burdens.
Since the launch of China’s reforming and opening in 1978, the Chinese Communist Party has reiterated the importance of the constitutional principle of gender equality. Today, rather than championing gender equality in the name of socialist reconstruction of China, the CCP promotes gender equality for the country’s overall development. In both periods (pre- and post-1978), the approach focuses on the ways in which gender equality can further help the country. Neither approach elevated the status of the individual nor placed any emphasis on individual political or civil rights. The development approach is driven by the logic of profit for the wellness of the collective, for profit is the state-induced motor of GDP growth and the motive for action among officials at every administrative level. This focus on development is evident in Xi Jinping’s speech at the Global Leaders’ Meeting on Gender Equality and Women’s Empowerment in 2015. Throughout the speech, he emphasized the post-2015 development agenda, noting that “development cannot be achieved without women, and its benefit must be shared by all people, women included.” Xi’s remarks are a strong indicator that the CCP views women’s development as a vital part of the country’s overall development.
While China’s latest efforts to promote women’s employment is in line with China’s development-focused approach towards gender equality, the request issued by China’s authorities to comply with employment laws may not be fulfilled unless China leaves room for the private enforcement of individual rights. Indeed, the notice does state that women who believe their equal employment rights have been violated may bring a lawsuit. Nonetheless, as Senior Fellow at the Paul Tsai China Center Han Su Lin argues, the government has a deep-seated distrust of the use of private enforcement in individual rights protection cases as the decentralized nature of such claims is often at odds with the overarching goal of maintaining social stability.
The state’s continued reliance on traditional “top-down” social management tools hinder its ability to tackle China’s employment discrimination problem––and the notice indicates no serious move away from this reliance. To push for real change, a transparent system of monitoring, regulation and legal recourse must be laid out and laws must be strictly enforced. Although a step forward, the notice stands as a guideline that does not appear to be legally binding. As long as China prioritizes development at the expense of individual rights protection cases, it may be some time before any traction can be gained in terms of women’s employment.
