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Overview on employment law protection for members of the Chinese LGBTI group

Back to LGBTI Committee publications

 

Carol Zhu, Karen Lu
Zhong Lun Law Firm, Shanghai
carolzhu@zhonglun.com

 

Since 1996, Chinese employment legislation started on a fast-track of development. China learned and borrowed certain legal concepts from foreign countries, but the accompanying implications and concerns are quite different from those in Western countries. Chinese employment law always tends to be responsive to Chinese reality, and is deeply entangled with people’s concern, for example, when China lagged economically, the employment law’s principal task was to guarantee the establishment of an employment contract system. Upon completion of this objective, the employment law now inclines to expand its attention to social equality, which covers disadvantaged groups such as women and disabled people, and then includes carefully, sometimes hesitantly, other minorities. Lack of legislation towards protecting sexual and gender minorities is superficial, and the traditional and historical-cultural context are the underlying influential factors.

Appeals from the Chinese LGBTI group are usually not heard due to the absence of detailed regulations and strict enforcement, and as one of the most marginalised and vulnerable populations in China, attention to their needs is therefore essential if we are to further facilitate the development of Chinese lawful governance and harmonious employment relationships. Discriminatory dismissal, harassment in the workplace, discrimination during the hiring process and job promotion and immigration policy in China are major concerns for LGBTI people in China. This article outlines the applicable legislation and judicial cases that have considered employment law protection for LGBTI individuals.

Legal basis and practices for LGBTI people’s recourse in discriminatory dismissal

Employment law in China is pro-employees, and it strictly restricts employers’ unilateral termination of an employee, meaning the dismissal can only be based on statutory grounds. Moreover, the equality principle is clearly stated in China’s Constitutional Law, and it provides that, ‘laws do not discriminate against anyone, and all People's Republic of China (PRcitizens have right to employment as well as obligation to work’. Such stipulation serves as a constitutional basis for all laws and regulations prohibiting discriminatory dismissal.

Currently, laws on employment equality and banning discrimination are divided into two categories in China: one comprises laws generally applicable to equal employment opportunities, such as articles concerning employment equality, anti-discrimination and equal payment in PRC Employment Promotion Law, Employment Law, and Employment Contract Law; and the other involves protected groups, with provisions to prevent employment discrimination against disabled persons and women as in Law on the Protection of Disabled Persons and Law on the Protection of Women’s Rights and Interests. It is a pity that anti-discrimination for sexual and gender minorities is not yet explicitly provided in PRC laws.

Article 3 under the PRC Employment Promotion Law makes an open and not exhaustive listing of forbidden discriminating factors, ‘employees shall not be discriminated due to their nationality, race, gender or religious belief, etc’, which entitles gender and sexuality minorities to claim anti-discrimination rights with respect to employment.

The staggering pace for Chinese legislation on anti-discrimination does not represent a completely negative prospect for sexual and gender minorities; rather, it may be interpreted as a meticulous and conservative attitude the legislature has always held. On the international stage, the Chinese Government already clarified its basic position as follows:

‘Our nation always respects LGBT groups' right of health and grant them equal social insurance as other Chinese citizens; we protect their rights to taking gender-reassignment treatment and surgery; we do not grant LGBT+ groups the right to marry a partner of the same sex at current stage [which] is not because of discrimination, instead, this policy is determined by Chinese traditional, historical and cultural values.’[1]

In 2014, an employee, who was reported as the plaintiff of ‘China’s first employment discrimination case arising from sexual orientation’ by the press, ‘came out’ to the public because of a personal video that later became an online hit. Soon after the exposure of his gay identity, the employee was terminated by the employer because ‘he violated the company’s rules of wearing company badge and a uniform and was complained [about] because of a poor work attitude’.[2]

The employee filed a lawsuit before the court in Shenzhen. Unsurprisingly, the employee lost at first instance, and he resorted to a final appeal. Finally, the intermediate Court of Shenzhen considered that evidence collected by the plaintiff was inadequate in proving that the employment relationship was terminated due to his sexual orientation, and thus, he failed to prove the infringement of his rights related to human dignity and equal employment. The court ultimately rejected the plaintiff’s appeal and upheld the original judgment.

In considering this case further, the direct and indirect discrimination towards the LGBTI community can happen in every respect but can rarely be identified with evidence. In practice, it is difficult to recognise and prove discrimination based on sexual orientation or identification. Social circumstances and external factors such as the concern of being compelled to expose one’s sexual orientation and pressure from family often means that there are very few or even no lawsuit directly filed with a cause of ‘discrimination based on sexual orientation’.

Legal background for LGBTI people dealing with harassment in the workplace

In mainland China, few laws prohibit sexual harassment of females, and when the term ‘sexual harassment’ was mentioned in PRC Law on the Protection of Women’s Rights and Interests, it attracted considerable attention. However, it is a declarative clause with difficulties in implementation. Only if the act of sexual harassment constitutes a violation of the public security administration, may the victim request the public security bureau in China to impose an administrative penalty. It also allows victims to file a lawsuit for the cause of civil rights infringement to a court; however, such efforts are in vain since there still exist the problems associated with the victim’s high burden of proof. Even for women, there is still a long way for the Chinese legislature to formulate specific regulations towards prohibiting sexual harassment, not to mention the necessary measures to protect the LGBTI community.

Burden of proof if there is discrimination based on sexuality

The burden of proof in a labour dispute still follows the fundamental rule that ‘he who asserts must prove’. Also, it is stipulated in the Labor Dispute Mediation and Arbitration Law of the PRC as, ‘where an employment dispute arises, a party shall bear the burden of proof to back up his or her claims. Where the evidence related to the dispute is under the control of the employer, the employer shall provide; and the employer who fails to provide the evidence shall bear the adverse consequences’.

Considering the employees’ relatively weak position in a labour dispute, there are several exceptions that require an employer to bear the burden of proof regardless of the assertions made by an employee. However, the ‘shift of the burden of proof’ applies only to situations arising from specific causes of action including dismissal, removing one’s name from the payroll, laying off, termination, and salary reduction. With the shift of the burden of proof, the difficulty for employees to provide evidence is materially reduced in the aforementioned situations.

However, the hiring process and job promotion are excluded from the scope of events that cover a shift in the burden of proof. If an LGBTI employee commenced a lawsuit under these two events, the burden of proof falls on the employee who claims to have been discriminated against. Such evidential burden is intertwined with two features for sexual discrimination cases. First, discriminatory measures taken by employers during hiring and job promotion can be hidden and hard to be seen or witnessed by outsiders. Second, many members of the LGBTI Group are inclined to keep silent about their sexual orientation or identity in the workplace, adopting a completely secretive attitude as a self-protective measure. In China, we learned that some non-governmental organisations and enterprises are taking actions to promote company policy that is friendly to LGBTI employment.

Some scholars propose that China’s legislature should enforce the ‘shift of the burden of proof’ principle in anti-discrimination legal proceedings, ie, if the applicant proves that he or she was under unequal treatment, the court could reasonably assume that the employer conducted a discriminatory practice. The employer may then overturn the court’s inference by offering objective and valid pieces of evidence for the necessity of disparate treatment; otherwise, the employer will be held liable for such discrimination.

Immigration issues for LGBTI people to work in China

The use of foreign workers is regulated in China and subject to pre-approval by the authorities of the State Administration of Foreign Experts Affairs (SAFEA). Under PRC immigration laws and regulations, foreign workers shall apply for and obtain a work permit and residence permit for their legitimate working and residential status in China. There is no specific rule discriminatory to the LGBTI group.

The threshold requirements for a foreigner to work in China are as follows: (1) being 18 years old or above and in good health; (2) mastering professional skills and having a certain period of work experience; (3) having no criminal record in the past; (4) having a definite employer in China; and (5) bearing a valid passport or other international travel documents. The SAFEA authority in China uses a points-based system to have a comprehensive evaluation of foreign applicants. The points-based system accurately scores the foreign workers’ application based on the following aspects, which include overall employment years, working periods in China, salary standard, highest educational background, current age, and Chinese language proficiency. If the eventual score of the foreign workers is over 60 points, then such applicants will be deemed as qualified to obtain the work permit.

As you can see, the Chinese Government grants the work permit and residence permit for foreign workers mainly based on evaluation of working capability, educational background and technique skills, and their sexual identity or sexual orientation is not a relevant factor to be considered.

Although there is no specific case in mainland China on employment immigration of an LGBTI individual, we can discuss a decided case in Hong Kong that may well explain the position towards this matter. In the case of QT v Director of Immigration in Hong Kong[3] a British lesbian named herself as QT, and a fellow British woman who uses the pseudonym SS, entered into a same-sex civil partnership in England under the UK’s Civil Partnership Act 2004. SS was offered employment in Hong Kong and granted an employment visa to come and work here. However, QT’s application for a dependent visa was rejected by the Director of Immigration and the reason was that she was ‘outside the existing policy’, which was to admit a spouse as a dependent only if he or she was party to a monogamous marriage consisting of one male and one female (the ‘Policy’). QT commenced the judicial review proceedings seeking to quash the Director’s decision and argued that the decision was unreasonable in the public law sense as it was discriminatory against her sexual orientation and was unjustifiable.

The Court of Appeal unanimously allowed QT’s appeal, and it held that the sexual orientation discrimination ground was decisive of this appeal. The rationale for adopting the Policy was to encourage persons with needed skills and talent to join Hong Kong’s workforce, accompanied by their dependents; and to maintain a system of effective and stringent immigration control. The Director’s eligibility requirement restricted to heterosexual married persons and excluding same-sex married partners, or civil partners was not rationally connected to those aims.

This article has sought to paint a country in transition, where the law no longer criminalises homosexuality, medical diagnostic standards no longer classify homosexuality as mental illness and most people do not hold negative or stereotypical views of sexual and gender minorities. However, China has not yet legislated any special anti-discriminatory laws or established special protections for the LGBTI community. As the efforts for China’s commitment to end inequality and exclusion continue, the LGBTI community will be seen, be protected and eventually, be materially equal to the sexual majority of people in China.

 


[1] Le, YC, (2018). ‘Response to questions raised by governmental representatives from Argentina and Chile on 6 November 2018 relating to LGBT community’s rights, on the third round of Universal Periodic Review (UPR) of United Nations Human Rights Council’, available at www.chinadevelopmentbrief.org.cn/news-22194.html accessed 16 April 2020.

[2] Xinhua.net (2015). ‘The First Case against the Sexual Orientation Discrimination at Workplace in China: Final Trial Upheld the Original Judgement’, available at http://sd.china.com.cn/a/2015/shouyefazhi_1126/431928.html [Chinese] accessed 16 April 2020. Judgments are not available to the public.

[3] QT v Director of Immigration [2018] 4 HKC 403 (Court of Final Appeal), available at https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=111447&currpage=T accessed 16 April 2020.