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Family planning and gender discrimination in the workplace : an assessment of China's two-child policy… Ziyi, Yang 2021

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FAMILY PLANNINGAND GENDER DISCRIMINATION IN THEWORKPLACE: ANASSESSMENT OF CHINA’S TWO-CHILD POLICY ONWOMEN’S EQUALITYATWORKbyZIYI YANGB.A., China University of Political Science and Law, 2019ATHESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THEDEGREE OFMASTER OF LAWSinThe Faculty of Graduate and Postdoctoral StudiesTHE UNIVERSITY OF BRITISH COLUMBIA(Vancouver)April 2021© ZIYI YANG, 2021iiThe following individuals certify that they have read, and recommend to the Faculty of Graduateand Postdoctoral Studies for acceptance, the thesis entitled:FAMILY PLANNINGAND GENDER DISCRIMINATION IN THEWORKPLACE: ANASSESSMENT OF CHINA’S TWO-CHILD POLICYONWOMEN’S EQUALITYATWORKsubmitted by Ziyi Yang in partial fulfillment of the requirementsforthe degree of Master of LawsIn LAWExamining Committee:Bethany Hastie, Assistant Professor, Peter A. Allard School of Law, UBCSupervisorAdditional Supervisory Committee Members:Debra Parkes, Professor, Peter A .Allard School of Law, UBCSupervisory Committee MemberiiiAbstractDiscrimination toward women in the workplace is a persistent issue. It desperately calls forways to secure female workers' rights. China's two-child programme is intended to solve issuesrelated to an ageing population. However, this strategy can result in a rise in instances of gender-based job discrimination. This research addresses the current shortcomings in Chinese law fortackling workplace gender inequality, including the absence of specific anti-discriminationlegislation, an insufficient knowledge of the meaning and classification of discrimination, and ashortage of enforcement institutions. This research conducts a comparative analysis of China andCanada, focusing on Canada's civil rights and pay equity legislation. The final chapter makesseveral suggestions for reforming China's anti-discrimination legal framework, focusing on aquantitative review of Canada's anti-discrimination legislation.ivLay SummaryThe family planning programme has been scrapped in China after the official adoption ofthe two-child policy five years earlier. The contentious two-child scheme has ignited debate inChina and around the globe. Existing survey data indicate that some Chinese families, especiallyChinese women, may opt out of having a second child. A key justification for such actions is tocombat sexual sexism against women. The aim of this research is to examine the legal issuesaround occupational discrimination against Chinese women. It examines China's legislativeprovisions regarding workplace gender inequality and compares them to Canada's laws and legalinstitutions on the topic. This thesis makes many proposals for improving workplace anti-discrimination under Chinese rule.vPrefaceDue to the growing global influence of the MeToo movement, I am also a strong believerin feminist theory. As a result, I began to pay attention to how Chinese women are treated in theworkplace and to the extent to which Chinese laws protect women in the workplace. Genderinequality is not new in China, and the implementation of the two-child policy in 2015, widelyregarded as a watershed moment in China's childbearing policy, may exacerbate pressure onChinese women's professional lives.Feminism is a developing subject in China, and pertinent research focuses on comparisonswith the laws of several countries, including the United Kingdom and the United States. Thereare few studies examining the human rights laws in China and Canada in comparison. Thepurpose of this research is to examine Canadian laws pertaining to human rights protection, anti-discrimination against women, and pay equity. Learning how specialized enforcement agenciessuch as the human rights court and human rights commission contribute to women's workplaceprotection. China should take a page from Canada's book by enacting a specialized anti-discrimination legislation and establishing supportive implementing agencies. Additionally, theissues confronting China were studied through the lens of various feminist theories. I hope thatafter reading this thesis, the reader has a greater understanding of female sexism in the workplacein China.viTable of ContentsAbstract.......................................................................................................................................... iiiLay Summary................................................................................................................................. ivPreface............................................................................................................................................. vTable of Contents............................................................................................................................viAcknowledgements..........................................................................................................................xDedication.......................................................................................................................................xiChapter 1. Introduction....................................................................................................................11.1 Background and Context: Gender-Based Social and Work Roles in China...................... 31.2. Women’s Rights at Work: an International Foundation....................................................51.2.1. International human rights law.............................................................................. 71.2.2. International labor law........................................................................................... 91.2.3. World Women’s Congress....................................................................................101.3. China’s Adoption of International Laws on Women’s Rights at Work........................... 111.4. Feminism and the Law: Theoretical Orientations...........................................................141.5. Women’s Rights and Discrimination at Work in China: Thesis Outline........................ 19Chapter 2. The Impact of the Two-Child Policy on Women’s Employment (In)Equality in China....................................................................................................................................................... 222.1 A Brief History of the Family Planning Policy in China: Movement from a One-Child toTwo-Child Policy...................................................................................................................242.1.1. A Brief History of Family Planning in China...................................................... 242.1.2. Women’s Attitudes towards the Two-Child Policy in China............................... 262.2. The Impact of the Two-Child Policy on Women’s Social Positions in China................ 282.2.1. Influence of Traditional Opinions........................................................................29vii2.2.2. Women’s Employment Inequality in China.........................................................292.2.3. Women’s Right to Education and Career Prospects............................................ 302.2.4. The Tension between Work and Family Life.......................................................312.3. The Impact of Childbearing Expectations on Gender discrimination in Employment inChina......................................................................................................................................332.3.1. Gender discrimination in Employment: the Employer Perspective.....................332.3.2. The “Cost” of Maternity Leave........................................................................... 342.3.3. The “Costs” Associated with Women’s Employment as “Temporary”............... 352.4. Mapping Gender-Based Employment Discrimination in China: Women’s Experiencesduring the Employment Life Cycle....................................................................................... 362.4.1. Gender-Based Discrimination in Recruitment.....................................................372.4.2. Gender-Based Discrimination during Employment............................................ 392.4.3. Gender-Based Discrimination: Impacts on Retirement....................................... 412.5. Conclusion...................................................................................................................... 42Chapter 3. Laws Addressing Employment Discrimination on the Basis of Sex in China: AnAnalysis of the Relevant Legal Frameworks and Processes..........................................................443.1. The Legal Framework Addressing Gender discrimination in the Workplace in China.. 453.1.1. The Constitution.................................................................................................. 463.1.2. Women's Rights Protection Law..........................................................................483.1.3. Labor Law and Labor Contract Law....................................................................513.1.4. Employment Promotion Law...............................................................................533.2. Challenges in the Operation and Enforcement of Laws Addressing Gender Equality andDiscrimination in the Workplace........................................................................................... 553.2.1. Lack of Definition of “Discrimination”...............................................................583.2.2. Lack of Legal Consequences and Deterrent Effect of Discrimination Laws.......59viii3.2.3. Lack of Specialized Law Enforcement or Supervisory Body..............................613.3. Challenges in the Legal System and Access to Dispute Resolution in Instances ofGender discrimination in Employment..................................................................................623.3.1. Mediation and Internal Resolution Measures...................................................... 633.3.2. Labor Arbitration................................................................................................. 643.3.3. The Lack of Coordination between Arbitration and Litigation Processes...........663.4. Conclusion...................................................................................................................... 69Chapter 4: Canada’s Approach to Addressing Gender discrimination in the Workplace.............. 714.1. Brief History of Canadian Human Rights Law.............................................................. 734.2. Canada’s Legal Framework on Sex Discrimination in Employment: An Overview......744.2.1. The Constitution.................................................................................................. 754.2.2. The Canadian Human Rights Act........................................................................ 764.2.3. Ontario Human Rights Code............................................................................... 794.2.4. Employment and Pay Equity Laws......................................................................804.3. Protection for Women at Work in Canada: AView of the Legal Process.......................834.3.1. Pregnancy as a prohibited ground of discrimination in employment.................. 844.3.2. Initiating a legal complaint for pregnancy-related discrimination at work......... 854.3.3. The legal principles governing discrimination complaints in Canada.................854.4. Classifying Discrimination in Employment: Direct, Indirect and SystemicDiscrimination....................................................................................................................... 874.5. Institutional Actors: the Role of Human Rights Commissions and RelatedAdministrative Bodies in Canada.......................................................................................... 904.6. Conclusion...................................................................................................................... 92Chapter 5: Recommendations for China........................................................................................945.1. Establishing a NewWorkplace Anti-Discrimination Law in China............................... 96ix5.1.1. Defining discrimination and protected grounds...................................................975.1.2. Classifying discrimination................................................................................... 995.1.3. Reforming legal processes to address and remedy workplace discrimination.. 1005.2. The Need for a Dedicated Legal Administrative Enforcement Body...........................1025.2.1. Anti-Discrimination Commission......................................................................1045.2.2. Anti-Discrimination Tribunal.............................................................................1055.3. Improving Human Rights Education and Training.......................................................1065.4. Conclusion.................................................................................................................... 107Bibliography................................................................................................................................ 109xAcknowledgementsI am eternally grateful to the teachers, staff, and fellow students at UBC for inspiring me topursue my work in this area. I am particularly grateful to Dr. Bethany Hastie, whose probingquestions taught me to inquire more profoundly and thoroughly examine Canadian human rights.I am appreciative to Professor Parkes for broadening my understanding of feministphilosophy and offering cogent responses to my never-ending questions.My parents deserve special recognition for their spiritual and financial encouragementduring my academic career.xiDedicationTo My Parents1Chapter 1. IntroductionAs of January 1 2016, China officially ended its one-child policy, in place for more than 30years, and introduced a universal two-child policy.1 This policy evolution was the result of agradual transition that started in November 2013, with the Third Plenary Session of the 18thCommunist Party of China Central Committee launching the “two-child” policy.2 This policywas extended in September 2015, when China agreed to maintain the fundamental state policy offamily planning, enhance the population growth strategy, fully enforce the policy of one couplehaving two children, and effectively address population ageing.3It is well known that China's population ranks first in the world. However, the developmentof China's material wealth is not enough to support a huge population. Therefore, in 1982, theCommunist Party of China incorporated the promotion of family planning4 into state policy, andfamily planning was officially carried out.5 For China, family planning plays a crucial role incontrolling the rapid growth of population and improving the quality of population.6 With theimplementation of family planning, China has made remarkable achievements in reducingpoverty and developing economy. However, an aging population and increasing reliance onpublic pensions, coupled with gender imbalance in the population, and growing labor shortages,created new population and economic challenges. The sex ratio between men and women inChina has always been more men than women. In the era of family planning, people are likely togive up if their first child is a daughter, and this has been the main reason why the familyplanning policy is not well received by some people.The movement towards a two-child policy in China has sought to alleviate the problems1Yi Zeng & Therese Hesketh, “The Effects of China’s Universal Two-Child Policy” (2016) 388:10054 Lancet 1930at para 1935.2 Ibid at 1937.3 Ibid at 1938.4 Family planning was designated as a basic state policy in 1982 in China. The main content and purpose of thepolicy are to promote late marriage and childbirth, so as to control the population in a planned manner. Since itsformulation, the family planning policy has had a positive effect on China’s population and development, but it hasalso brought about an aging population problem after decades. Therefore, some adjustments are made to familyplanning policy.5 Isabelle Attané, “China’s Family Planning Policy: An Overview of Its Past and Future” (2002) 33:1 Stud FamPlann 103 at para 5.6 Jiang Quanbao, Li Shuzhuo & Feldman W. Feldman, “China’s Population Policy at the Crossroads: Social Impactsand Prospects” (2013) 41:2 Asian J Soc Sci 193 at para 1.2associated with an insufficient labor force, aging population, and imbalance in the populationgender ratio, each of which created obstacles hindering China's economic development.7However, the two-child policy’s recent introduction means that limited data and research existsfrom which to establish whether it has met its objectives, and from which to evaluate theadvantages or disadvantages of the impact made by the policy. Despite this, early signs indicatethat the new policy is having an impact on women’s employment.This thesis investigates how the universal two-child policy has operated to entrench andincrease gender discrimination in employment for women in China, focusing especially ondiscrimination in relation to their presumed family status and caregiving obligations. Therealization of the two-child policy is a significant change for Chinese society. This thesis focuseson the impact of the two-child policy on women: whether women will face a more difficultposition in the workplace as a result of this policy. This thesis provides an in-depth analysis ofgender discrimination in the Chinese workplace, from before the enactment of the two-childpolicy, to the possible negative effects of the two-child policy after its implementation. The issueof gender discrimination is not the result of a single factor but is influenced by a combination ofcauses. This thesis further explains the manifestations of workplace discrimination in China.Firstly, it introduces the problem of workplace discrimination as a whole and then focuses on thelack of equal protection for men and women in the workplace in China’s laws, presenting theexisting gaps and irrationalities. After that, it discusses how Canadian law protects equality in theworkplace in all aspects and whether other specialized agencies are used to support theimplementation of the law to ensure its effectiveness. Ultimately, combining these experienceswith the problems that exist in China, some suggestions are given.Whether from the perspective of gender equality or national development, the impact ofthe two-child policy on women's employment, and on discrimination in the workplace is worthyof attention. If the problem of gender discrimination in the workplace aggravated by the two-child policy can be solved, both gender equality between men and women will be advanced andwomen will be less worried about having children so that the purpose of the state’s two-childpolicy can be achieved.Through an analysis of the employment impact on women under the universal two-child7 Wang Feng, Baochang Gu, and Yong Cai. “The End of China’s One-Child Policy” (2016) 47:1 Stud Fam Plann 83at para 2.3policy, we can understand the dilemma of women's employment and discrimination against themin the workplace. This, in turn, facilitates the development of corresponding countermeasures toalleviate these problems that may operate to better implement the universal two-child policy andto promote gender equality.1.1 Background and Context: Gender-Based Social and Work Roles in ChinaWomen are important members in family life in China. Women's family status, lifestyle,economic status, as well as recognition and understanding of fertility, are directly related to theimplementation, effects and results of China's new two-child policy. Therefore, when discussingpopulation issues, we must draw specific attention to the impact of the policy on women. Thehistorical one-child policy was seen by some as encouraging women’s participation in paid labor.It is important to compare the one-child policy to help readers better understand the importanceof the two-child policy. The one-child policy, which required a family to have only one child, isone of the family planning policies mentioned above. Family planning claims that havingchildren in a planned manner under the macroeconomic control of the state, and its main contentand purpose are to advocate late marriage and childbirth, fewer and better births, and to controlhigh population growth in a planned manner, which has been established as a basic state policy.Moreover, China also enacted the Population and Family Planning Law for this policy. The two-child policy is a new family planning policy in China that allows a family to have two children.There was a gradual transition from the one-child policy to the two-child policy, initiallyallowing both spouses to have a second child if they were both only children, and then relaxing itto allow a second child if one of the spouses was an only child.“One of the advantages of China implementing family planning policy is to liberatewomen from trivial household chores and unrestricted child-bearing to integrate into the sociallabor market for creating social value, so as to realize their own value of life.”8 Despite this,gender-based stereotypes and norms continued to operate to women’s disadvantage in the paidlabor force. “Due to the influence of traditional culture and the continuation of gender statusinequality, the concepts of “men are stronger than women” and “breadwinning men andhomemaking women” still continue till today.”9 “This principle meant that women sought to8 Therese Hesketh, Xudong Zhou, Yun Wang, “The End of the One-Child Policy: Lasting Implications for China”(2015) 314:24 JAMA 2619 at 2619.9Alicia SM Leung, “Feminism in Transition: Chinese Culture, Ideology and the Development of the Women’s4remain “inside” as “a spatial statement of virtuous femininity”.10As such, the family planningpolicies in China have not, in practice, transformed women’s gender roles in relation to labor tothe extent hoped, and many women remain at home as caregivers once they have a child.Women in China often bear the heavy responsibility of taking care of their families. Thus,the introduction of the two-child policy may, in fact, be seen to put a yoke on women. It is ofgreat significance to study what challenges the two-child policy will have for women, their roleand participation in Chinese society and in the labor force. Some women do not intend to have asecond child, but may feel obligated to do so, particularly when elders or their husbands want tohave a second child. The process of another pregnancy may be difficult or dangerous, which maydo major harm to their bodies or cause risks to their lives. In addition, due to the influence oftraditional gender culture, husband and family is the most important thing for women, womennot only engage in paid labor, but also take on primary responsibility for the family andcaregiving. Women not only take care of children and their spouse, but also likely take care ofthe daily life of both their and their spouse’s parents.11A second child in the household willincrease the pressure on women, resulting in a series of potential negative effects.In this thesis, I analyze what impacts the new two-child policy may bring to bear onwomen's work and whether it will exacerbate employment discrimination. I demonstrate that theuniversal two-child policy will increase employment discrimination against women. Women whohave no children when they apply for a job will likely suffer serious gender discrimination in thelabor market, as enterprises may be unwilling to recruit female employees due to assumedassociated costs with two maternity leaves. Women who have already given birth to one childmay be assumed to be in an advantageous position. However, these women may easily becomedisadvantaged in the labor market following the introduction of the two-child policy, as they willface similar discrimination and barriers in hiring practices. In addition, women’s career progresswill be further impacted by the two-child policy. More women are engaged in marginal orinformal occupations. Especially in the period of pregnancy, employers may make excuses forfemale workers to transfer their positions, cut their pay, or simply dismiss them.Movement in China” (2003) 20:3 APJM 359 at 359.10 Lisa Rofel, “Liberation nostalgia and a yearning for modernity” in Gail Hershatter & Lisa Rofel, eds, EngenderingChina: Women, culture, and the state (Cambridge: Harvard University Press, 2005) 226 at 226.11 Xiao-Tian Feng, Dudley L Poston Jr, Xiao-Tao Wang, “China’s One-Child Policy and the Changing Family”(2014) 45:1 J CFS 17 at 29.5Discrimination in employment against women is a complicated problem that has longexisted in society. The implementation of the universal two-child policy is likely to make thisproblem more prominent. Therefore, it is significant to study the legal issues attendingdiscrimination in employment against women in relation to the universal two-child policy. Thisthesis will contribute to the insufficient body of research on discrimination in employment andfeminism in China. At present, research on discrimination in employment conducted in China isstill at an early stage, focus on defining and classifying discrimination in employment.Accordingly, faced with the universal two-child policy, it is necessary to analyze thecharacteristics of the legal issues related to the discrimination in employment against women, todeepen the research on legal issues related to discrimination in employment against women, toanalyze the legal provisions on the discrimination in employment currently in effect as well astheir deficiencies, and to deepen the research on anti-discrimination theory in China by learningfrom Canada's experience in protecting parity of treatment for women in the workplace.In this thesis, I examine how the existing legal framework relating to labor, women’s rights,and discrimination, fails to sufficiently prevent and protect against discrimination for women inemployment in China. I document both doctrinal and operational gaps that facilitate continuedemployment discrimination against women. I engage in a comparative examination of Canadiananti-discrimination law in order to formulate recommendations to improve the law and itsoperation in China, and to advance gender equality for women at work and in society.1.2. Women’s Rights at Work: An International FoundationAs a contracting party of relevant international covenants on human rights, China hastaken steps to fulfill relevant international obligations on anti-discrimination in employmentagainst women as stipulated in the covenants. China has established a legal system of anti-discrimination in employment against women with certain positive achievements having alreadybeen achieved. Traditionally related to employment restrictions and unequal remuneration,gender discrimination in employment has long been a social problem facing that variouscountries all over the world. In order to eliminate discrimination and accelerate the realization ofwomen's equal right to work, the United Nations has promulgated a series of internationalcovenants on human rights, which require contracting parties to not only rectify deep-rootedgender imbalances in their legal systems, but also take affirmative measures to provide effective6legal protection for women.International treaties play a positive role in promoting China's anti-discriminationlegislation. In fact, the United Nations (UN) did not recognize the PRC for twenty-two years.After that, China began to gradually accede to various treaties against discrimination againstwomen in the workplace. Examining the international law foundations for China’s anti-discrimination and gender equality laws assists in establishing the legal foundation for andcontent of its obligations explored in this thesis.In this section, I discuss three types of international legal obligations that China hasundertaken through its participation at the UN: international human rights; international laborrights; and, international women’s rights. There are many provisions on combatingdiscrimination against women in employment in the field of international human rights law.Internationally, conventions and normative documents concerning women’s labor rights haveplayed a significant role in protecting women’s rights and interests and promoting women’sdevelopment, effectively promoting women’s equal employment and the realization ofemployment-related rights.First, I review international human rights covenants, focusing especially on theInternational Covenant on Economic, Social and Cultural Rights, 12and the Convention on theElimination of All Forms of Discrimination against Women13, which work to addressdiscrimination and protect women's rights and interests. Second, I examine how the InternationalLabor Organization (ILO) formulates labor standards, including in relation to maternityprotection, special protection and so on. Third, I introduce the efforts that the World Conferenceon Women has made regarding the gender equality and the protection of women. TheInternational Women's Conference, alternately referred to as the United Nations WorldConference on Women, is a significant gathering of women's organizations from across theworld. Women’s issues have always been one of the priorities of the United Nations in the fieldof society and development, and it has so far held four World Women Conferences to promotethe cause of women around the world. These began in 1975 in Mexico City, 1980 in Copenhagen,12 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered intoforce 3 January 1976) [ICESCR].13 The Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249UNTS 13 (entered into force 3 September 1981) [CEDAW].71985 in Nairobi, and 1995 in Beijing.14 Beijing's 1995 Fourth World Conference on Women wasa watershed moment in the global agenda for gender equality. The Beijing conference drew onthe political commitments made at three recent global women's conferences and reinforced fivedecades of legal progress in ensuring women's equality with men in law and practice.15 The fourconferences on women set different themes and achieved different outcomes, which worktogether to raise women's status all over the world. “These conferences and treaties had a distinctinfluence on domestic laws concerning labor discrimination against women.”16 Theseconventions and normative documents cover women’s employment, labor remuneration, socialsecurity, and specialized labor protection for women workers.Introducing the international laws and conventions in which China has participated enablesa better understanding of China's involvement in the international anti-discrimination movements,the reasons why China is active in participating in these international covenants, and the positiveeffect of these international laws on the advancement of women’s status in China. This sets animportant foundation from which to explore China’s own laws regarding anti-discrimination andgender equality at work, which is at the heart of this thesis.1.2.1. International human rights lawThe “International Charter of Human Rights” includes the Universal Declaration of HumanRights,17 the International Covenant on Economic, Social and Cultural Rights,18 and theInternational Covenant on Civil and Political Rights and its two Optional Protocols.19 TheUniversal Declaration of Human Rights is the founding statement of the international humanrights charter scheme, stressing that both men and women worldwide have an equal right topossess the Declaration's fundamental rights and freedoms. Besides, with the development of14 “A Plan of Action for Canada to Reduce HIV/AIDS-related Stigma and Discrimination” (2020), online: UNWomen <>[].15 “A Plan of Action for Canada to Reduce HIV/AIDS-related Stigma and Discrimination” (2020), online: UNWomen <>[].16 Jamie Burnett, “Women’s Employment Rights in China: Creating Harmony for Women in the Workforce” (2010)17:2 Ind J Global Legal Stud 289 at 289.17 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810(1948) X.18 ICESCR, supra note 12 at.19 International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, 999 UNTS 171 (entered intoforce 23 March 1976) at 171.8research, people understand that not everyone fits into the gender binary of man/woman.20 Here Ifocus especially on the International Covenant on Economic, Social, and Cultural Rights, whichsets out key obligations regarding work and non-discrimination, and the Convention on theElimination of All Forms of Discrimination Against Women.21The International Covenant on Economic, Social, and Cultural Rights [ICESCR] is anessential instrument of human rights theory and practice today. It specifies the rights of a personor a resident of a contracting state, such as the right to employment, the right to fair wages forequal work, the right to organize and enter labor unions, the right to rest and daily paid leave, theright to social protection, and the right to an adequate standard of living.22 “Traditionally, labor isconsidered to be a means of earning a living. Modern concepts promote the concept of labor as ameans of human value, social needs, self-realization, and human personality development. Itsessence involves protecting workers' rights to survival and growth.”23The ICESCR embeds non-discrimination guarantees in several ways through its content.24First, it requires that “[t]he States Parties guarantee that the rights enunciated in the presentCovenant will be exercised without discrimination of any kind as to race, colour, sex, language,religion, political or other opinion, national or social origin, property, birth or other status.”25This demonstrates that the general provisions of the ICESCR on equality and non-discriminationcontain a requirement to prohibit gender discrimination and that the universal exercise of allrights contained in the Convention must not be based on gender-based discrimination. Second,Article 3 requires States to extend equal rights to ensure that men and women enjoy all economic,social and cultural rights contained in the Covenant.26 Third, the ICESCR stipulates that womenhave equal rights with men to work and their rights related to work.27 It also requires the State totake appropriate measures to guarantee the realization of this right. The right to work is regardedas an economic right; it is an essential guarantee for women's financial independence and self-20 Jessica J Cameron & Danu Anthony Stinson, “Gender (Mis) Measurement: Guidelines for Respecting GenderDiversity in Psychological Research” (2019) 13: 11 Soc Pers Psychol Compass e12506 at 37.21 CEDAW, supra note 13 at.22 ICESCR, supra note 12 at 2.23 Xixia Li, “Research on the Legal System of Anti-Female Employment Discrimination in China-- From thePerspective of International Human Rights Law” (2017) 1 HR 79 at 37.24 ICESCR, supra note 12 at 15.25 Ibid at 15.26 Ibid at 15.27 ICESCR, supra note 12 at 15.9development. Fourth, under the framework of the ICESCR, equal pay for equal work for menand women is an economic right related to the right to work. Article 7, paragraph 1, of theConvention contains a special provision that requires the State to guarantee “fair wages andequal pay for work of equal value without any discrimination, in particular to ensure that womenenjoy working conditions not worse than those enjoyed by men and enjoy equal pay for equalwork.”28The Convention on the Elimination of All Forms of Discrimination against Women[CEDAW] is legally binding and contains internationally recognized principles and measuresaimed at fighting for and safeguarding women's equal rights. It is not regulated in political, social,economic, cultural, and public affairs. Giving women equal rights in all fields is regarded as the“International Charter of Women's Rights.” Article 1 of the Convention defines “discriminationagainst women” as “any distinction, exclusion or restriction made on the basis of sex which hasthe 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 andfundamental freedoms in the political, economic, social, cultural, civil or any other field.”29Article 11, paragraph 1, of the Women's Convention, specifically stipulates women's employmentand labor rights and requires the State Parties to take all appropriate measures to eliminatediscrimination against women in the profession to ensure equal rights to work, same rights toemployment opportunities, free choice of occupation, the right to employment, the right to equalpay for same work (including allowances), the right to social security, and the right to maternityprotection.30 This provision establishes and strengthens many women's rights in relation to theiremployment and in society.1.2.2. International labor lawInternational labor standards play a role in coordinating, guiding, and regulating labor laws.Within international labor law, equality in rights and treatment between women and men withrespect to work are included in many instruments. Relevant content and rights include: equalemployment opportunities for men and women, fair treatment, elimination of employment andoccupational discrimination, special protection for female employees, and maternity protection.28 Ibid at 15.29 CEDAW, supra note 13.30 CEDAW, supra note 13.10Employment and Occupational Discrimination Convention No. 111 (1958) definesdiscrimination as “any distinction, exclusion or preference based on race, color, gender, religion,political opinion, ethnic origin or social origin, which has the effect of canceling or impairingequal employment or professional opportunities or equal treatment.”31 The purpose is to promoteequal employment and career opportunities and eliminate discrimination based on race, color,sex, religion, ethnicity, and social origin.International labor standards also exist in relation to women’s rights and interests in theworkplace. There are, first, standards regarding equal pay for equal work, namely underConvention No. 100 on Equal Remuneration for Men and Women Workers, and WorkRecommendation No. 90.32 There also exist international labor law instruments regardingmaternity protection. Convention No. 3 of 1919, Convention on Women’s Work Before and AfterChildbirth,33 was the first standard in this regard, which was later revised by Convention No. 103of 1952, theMaternity Protection Convention,34 and again at the end of 2000 with the MaternityProtection Convention No. 183.35 The purpose of such standards is to ensure that femaleemployees enjoy maternity leave and are eligible for cash allowances and medical care.Complementing the ICESCR and CEDAW, ILO instruments also prohibit discriminationon the basis of sex in employment, promote gender equality in employment, including withregard to pay, and offer special protection to women regarding maternity.1.2.3. World Women’s CongressDrawing out from international legal instruments that seek to protect and advance women’srights and interests, the United Nations has convened four world conferences on women, andeach conference has set out important objectives on issues such as gender equality anddevelopment. The First World Conference on Women held in 1975 adopted the “MexicoDeclaration” and “World Action Plan”, which defined equality between men and women.36 TheSecond World Women’s Congress was held in 1980,37 and the General Assembly adopted the31 Discrimination (Employment and Occupation) Convention, C111, 25 June 1958, ILO (entered into force 15 June1960) at 1 [DEOC].32 Ibid at 1.33 Equal Remuneration Convention, C100, 29 June 1951, ILO (entered into force 23 May 1953).34 Maternity Protection Convention,15 June 2000, ILO (entered into force 7 February 2002) .35 Ibid.36 World Conference of the International Women’s Year, 1975, UN Doc E/CONF.66/34.37 1980 World Conference on Women, 1980, UN Doc A/CONF.94/35.11United Nations Women’s Program of Action for the Second Half of the Decade, with specialemphasis on employment, health and education as important components of development, with aview to achieving the goals of equality, development and peace at an early date. In July 1985, thethird conference was held in Nairobi, the capital of Kenya. The conference adopted the NairobiStrategy, which called for equality and the elimination of all forms of discrimination againstwomen, including women’s labor and society.38 Fair job opportunity, equal compensation forequal jobs, equal labor standards, equal opportunities for technical training, sufficient social care,and unemployment benefits are also included in the defence of rights and interests.In September 1995, the Fourth Women’s Congress adopted the “Beijing Declaration” andthe “Beijing Program of Action” in Beijing.39 “By lobbying to host this conference, Chinashowed both a continuing dedication to improving relations with the international communityand an interest in promoting women's rights in China. Though the primary goal of the conferencewas development and peace, a secondary goal was to address gender-related employmentproblems.”40 The World Women's Movement's priorities and objectives for the next five yearswere explicitly defined, and policymakers were encouraged to make political promises to takesteps to end all forms of violence against women and to pursue the lofty goals of equity,prosperity, and peace.41Together, international human rights and labor laws, coupled with the specific objectivesand commitments made through the World Conferences, establish a robust international legalfoundation for the protection and advancement of women’s rights at work. The next sectionexamines how the international legal foundation has been adopted in China, and challenges thatremain.1.3. China’s Adoption of International Laws on Women’s Rights at WorkThe realization of the rights contained in international conventions, such as the ICESCRand CEDAW, depend largely on national adoption by member states, and therefore on the social38 Ibid.39 Beijing Declaration and Platform of Action, GA Res 50/203, UNSCOR, 1995, UN Doc A/CONF.177/20 [BDPA].40YongQing Fang, “Women’s Development in Hebei Province, PRC” in Cherlyn S Granrose, ed, Employment ofWomen in Chinese Cultures: Half the Sky (Cheltenham: Edward Elgar Publishing, 2005) 157 at 163.41 BDPA, supra note 39.12and economic development of the contracting countries and their domestic legal, judicial, andadministrative measures. This section examines how these international instruments exist andoperate within the Chinese legal system. I examine the legal quality of international law in China,the layered motivations that have given rise to its adoption and implementation of internationalnorms regarding women’s rights at work in national law and policy, and operational challengesthat have arisen in this process.China ratified the ICESCR and CEDAW on March 27, 2001, and November 4, 1980,respectively. Similarly, it signed the International Labor Organization Convention for EqualRemuneration for Equal Work in 1990, signaling renewed interest in the status of workingwomen.42 However, China's “Constitution”, “Legislation Law”, and other related laws do notaddress how to apply international law. Therefore, there are different legislative practices inreality. For example, the “General Rules of Civil Law” and “Civil Procedure Law” and otherlaws stipulate the priority application of international treaties. However, there are a large numberof laws that do not provide for the application of international treaties or foreign law.43 Inpractice, the ICESCR and CEDAW cannot be directly applied in China. They must be writteninto domestic law by the National People's Congress and its Standing Committee in order for therights and obligations to be law in China.China's foreign engagement and adoption of domestic regulations may act as a expressivefunction in transmitting public policy goals and interests, and the policy message conveyed bylegislation can have implications for society that are equivalent to or greater than the substanceof the law.44 When required to decide whether to ratify an international covenant, every countrywill consider its domestic economic, political, social, and cultural conditions and China is noexception.45 Generally speaking, several factors influence this assessment in China, includingchanges in Chinese people’s traditional ideas, trends in international law, and advancement of thestatus of Chinese women. Since the reform and opening up, China has always aimed to keep42 Xun Zeng, “Enforcing Equal Employment Opportunities in China” (2006) 9 U PA J LAB & EMP L 991 at 991.43 Li, supra note 23 at 37.44 44 Crystal Roberts, “Far from a Harmonious Society: Employment Discrimination in China” (2012) 52:4 SantaClara L Rev 1531 at 37.45 Xiaobing Zhang, “China’s Ratification and Implementation of the Convention on the Elimination of All Forms ofDiscrimination against Women” (2016) 6 HR 57 at 37.13pace with international society, and the ideology must also keep up with international trends. Forexample, China acknowledged the problem of gender discrimination in employment situationsand stated that the government was dedicated to solving these problems through legislation suchas the Law on the Protection of Rights and Interests of Women.46 Relatedly, it has become aninternational trend to participate in all kinds of international covenants on human rights andformulate anti-discrimination laws. The performance of a country in human rights protection hasbecome an important criterion to evaluate the country.Advancement of women’s rights in China have also been the result of women’s movementswithin China. Under the influence of prevalent women's movements and the spread of feministtheory, Chinese have gradually developed their own standpoints and positions in a series ofideological trends. Some Chinese scholars, inspired by feminist ideas, have also carried outwomen’s movements and put forward their demands. The advanced views on women putforward by the movement of encouraging women’s education and abolishing foot binding, aswell as the translation of western feminist thought, not only reflected the strong desire of Chinesewomen at that time to fight for freedom and gender equality, but also indicated that Chinesewomen's consciousness of right and self-consciousness that had been suppressed for thousands ofyears began to awake. 47 These women rights fighters carried out a series of women movements,which not only raised women’s social status, but also made it possible for China to participate ininternational covenants and join international organizations.China's participation in the international community is beneficial to China. First of all,ratifying the instruments canvassed above has become an important channel for China to keep upwith international society, as well as the way in which China can accept international supervision.China has signed many international treaties and joined many international organizations tocooperate with other countries in the world. In turn, these groups can monitor whether Chinaactually fulfils their promises. For example, if China is committed to promoting gender equality,China must seriously consider whether its current domestic laws can be implemented and pushforward the legislative process to fulfill their commitments. Secondly, the ratification of theinstruments urges China, as a contracting party, to be active in performing the obligations46 Christine M Bulger, “Fighting Gender Discrimination in the Chinese Workplace” (2000) 1 BC Third World LJ 345at 37.47 Roberts, Supra note 44 at 37.14stipulated in the covenants, implementing the aims and purposes of the covenants, andeliminating discrimination against women by legislative, judicial and enforcement means. Finally,the ratification of the instruments enables China to respect and protect women's rights from ahigher point of view, in a bid to speed up gender equality, fight against gender discrimination,and respect and protect human rights in China.However, implementation and enforcement of the relevant international obligations hascreated some challenges. “Although China has ratified these international conventions, they haveproven less than effective due to enforcement problems.”48Absent adoption into national law,resort must be had to international bodies for enforcement. Despite being technically enforceablethrough the International Court of Justice, the International Labor Organization must “oftenresort to soft power, such as public shaming or providing incentives for compliance such asfunding or technology.”49As this and the previous section establishes, there is firm grounding, both withininternational and domestic law, for China’s commitment to gender equality and women’s rightsat work. However, as Chapters 2 and 3 will explore, there remain significant challenges forwomen experiencing discrimination in employment in China. Before engaging in this substantiveanalysis, the next section reviews the theoretical approach I adopt in relation to gender equality,feminism and the law.1.4. Feminism and the Law: Theoretical OrientationsAlthough there are many discussions about feminism that have been conducted in China,few of them integrate feminism with jurisprudence and law. In addition, China lacks theenvironment for people to explore feminist jurisprudence. Feminism is a new topic for Chinesesociety; only in recent years, when the Metoo movement was launched, has the topic offeminism been discussed more in society. Compared to Western countries, feminist-related legalstudies in China is young, few people study related theories, and few schools offer specialcourses on these topics.As a result, the theories of feminism only have limited influence on Chinese jurisprudence.It is hoped that the integration of the theories of feminism and the jurisprudence of China can48 Burnett, supra note16 at 289.49 Roberts, supra note 44 at 37.15enable people to better understand equality and difference. Feminism is an indispensabletheoretical basis for research on the protection of women laborers’ rights and interests. Thissection sets out the theoretical orientation I adopt for this thesis, reviewing the history offeminism and the law, and discussing several key theories of feminism that inform this thesis:liberal feminism; cultural feminism; radical feminism and anti-essentialist feminism.Feminist movements are social movements that are created to eliminate sex discriminationand oppression, and to achieve sex equality in all aspects of life. Feminist movements can bedivided into three generations which are often referred to as three “waves” in the academy.“Early feminists and the original feminist movement during the 19th and early 20th centuries areoften referred to as “first-wave feminism”. This “wave” focused on attaining basic legal rights,including voting rights and property rights, for women. The feminist movement from 1960 untilthe 1980s is generally referred to as “second-wave feminism.”50 Second-wave feminismbroadened the debate on sex equality to include issues such as domestic violence and equality inthe workplace. Third-wave feminism, the current movement, seeks to advance a more inclusiveapproach to feminism and sex equality. “They accused second-wave feminism of being elitistand ignoring groups such as women of color and transgender women. Third-wave feministsbegan to apply feminist theory to a wider variety of women, who had not been previouslyincluded in the feminist activity.”51 “Under these new feminism ideas, the awareness of women'srights in the West has been rapidly revived and strengthened because of the massive civil rightsmovements.”52 The feminist movement reached a climax again.Within and across these movements, different theories of feminism emerged. This thesisadopts a view of feminism that draws on cultural feminism and radical feminism. Each of theseconceptions respond to limitations associated with liberal feminism. Here, I discuss each of thesetheories and their dominant perspective regarding gender equality and the law. I then go on todiscuss how these theories reveal certain challenges and issues as reflected in the law, and socialcontext of women in the workplace, in China.50 Charlotte Krolokke &Anne S Sorensen, “Three Waves of Feminism: From Suffragettes to Grrls” in, CharlotteKrolokke &Anne Scott Sorensen, eds, Gender Communication Theories and Analyses: From Silience toPerformance (California: SAGE Publishing, 2005) 1 at 24.51 Edward Burlton Davies, Third Wave Feminism and Transgender: Strength Through Diversity (London: Routledge,2018) at 37.52 Ming Zhao, “Viewing China’s Legislation from the Perspective of Gender Equality in Feminist Jurisprudence”(2009) 3 J Chin Women's Stud 10 at 37.16Liberal feminist jurisprudence emphasizes the commonality of men and women, i.e., theequality of men and women, with its demand to downplay so-called biological differences,changing “equality” to “parity” as well as equal treatment to parity treatment. In particular, itseeks gender neutrality in law, which means that the rights of men and women should beregulated in exactly the same way, and refuses to legally recognize the inherent biologicaldifferences between men and women. Concurrently, it argues that gender-specific provisions inthe law represent a “legal” denial of women’s rights and a restriction of their freedom under theguise of protecting them. Within liberal feminism, the concept of gender equality centres onwomen having equal legal rights as men, and adopts a formal equality approach under law. Theybelieve that women can achieve equality without revolutionary reforms of social structures andinstitutions being carried out. In addition, they hold that the state and the law will eventuallybecome arbiters of gender neutrality and protect the interests of both women and men, which isin line with the view of liberalism that the society is progressing constantly. 53Liberal feminismpresumes that once discriminatory rules are changed, opportunities of and for equality willappear, leading naturally to gender equality. “Based on this kind of equality, liberal feministjurists reject any legal differentiated treatment and special protection given to pregnantwomen,”54 and think that protective legal provisions formulated on account of women'spregnancy, childbearing, or parenting actually emphasize the difference between men andwomen, which is not beneficial to women’s employment.Cultural feminism amends the definition of “equality” proposed by liberal feminism and“they think that equality does not merely mean giving women the same treatment as men.”55 Thecompletely same treatment given to two different individuals is actually unequal, for men andwomen are different. At present, laws are male-dominated standards, and it is necessary to givewomen special protection under certain conditions. According to cultural feminism, a vision ofequality that is blind to sex will cause greater inequality to both sexes. As such, culturalfeminism aligns more closely to a conception of substantive equality, which is attentive to theways in which difference requires different treatment to create fairness or equity in outcomes.“Based on this theory, cultural feminism advocates maternity leave for female employees in53 Ibid at 37.54 Jenny Morgan, “Feminist Theory as Legal Theory” (1988) 16:4 Melbourne UL Rev 743 at 26.55 Cheris Kramarae & Dale Spender, Routledge International Encyclopedia of Women: Global Women’s Issues andKnowledge (London: Routledge, 2000) at 26.17terms of the welfare of pregnant female employees, which will be conducive to giving womenworkplace care and realizing real equality in practice.”56“Since the second wave of feminism sprung up in the 1960s, radical feminism has becomethe center theory of a number of analyses related to feminism.”57 It criticizes liberal feminism forplacing an inordinate amount of emphasis on the "metamorphosis" of women into men, obliviousto the importance of women's conventional roles.58 Contrary to liberal feminism, whichemphasizes the similarities between men and women, radical feminism advocates that men andwomen are fundamentally different, and belong to gender classes with irreconcilable interests. “Itis precisely the relationship between men and women based on male dominance and femalesubordination that leads to gender inequality.”59 “Radical feminists assert that society is apatriarchy in which the class of men are the oppressors of the class of women.”60 Radicalfeminists believe that state, laws, and policies all are men’s protective tools directly used tomaintain their dominant position and women’s subordinate position. According to radicalfeminism, the society, rules, and regulations are all instruments utilised by men to preserve theirsuperior status and women's inferior role. Radical feminism anticipates the abolition ofpatriarchal dominance and the establishment of a female-centered culture and process.The central ideas of the above-mentioned theories of feminism, and their differences,provide guidance in assessing and evaluating laws related to women’s rights at work, includingin relation to equal protection or special protection models, and the content of substantive rightsfor women in the workplace. “Although these theories appeared under different historicalbackgrounds, with their core concepts not completely integrating with each other and evenconflicting with each other,”61 because of the common goal, they all share a basic premise thatcurrent society is based on a male-centered patriarchal society, which results in women beingoppressed and discriminated against. Therefore, they will have a common inspiration for theformulation of anti-gender discrimination laws in spite of their different views and methods.56 Zhao, Supra note 53 at 37.57 Ellen Willis, “Radical Feminism and Feminist Radicalism” (1984) 9/10 Soc Text 91 at 26.58 Tong Rosemarie, Liberal feminism, Feminist thought: a comprehensive introduction (London: Routledge, 2000) at26.59 Zhao, Supra note 53 at 27.60Alice Chols, Daring To Be Bad: Radical Feminism in America 1967-1975 (Minneapolis: University of MinnesotaPress, 1989) at 48.61Yue Zhao, Research on the Legal Protection of Labor Rights and Interests of Female Workers in China (Masterthesis, Beijing: China Youth University of Political Studies, 2016) 26.18The theories of feminism mentioned above are instructive for the implementation of theprinciple of equality between men and women in Chinese legislation, especially as regards thediscussion of formal equality and substantive equality. While formal equality was of historicalsignificance for women to achieve the same legal status as men under the law, the limits ofliberal feminism are illustrated in the outcomes that result from continued reliance on gender-neutral laws. Meaningful gender equality in practice requires substantive equality rights forwomen, which acknowledge the difference between women and men, in line with culturalfeminism. This, in turn, requires legislators to formulate laws and regulations to protect women'shuman rights based on women's actual needs and interests, and taking equality of results as theaim. To encourage women who face unfair development circumstances to provide equitabledevelopment opportunities as men, it is both fair and appropriate to accord women specific legalrights and care in order to achieve gender equity in reality. This is reinforced by radical feministjurisprudence, which demonstrates that gender inequality against women is systematic and aresult of patriarchy.In sum, liberal feminism and a reliance on formal equality may be an important first-stepto equal recognition under the law. However, it is insufficient to realize equality for women inpractice. Rather, cultural feminism, which emphasizes the difference between women and men,and radical feminism, which unpacks the patriarchal system that operates to oppress women,work together to illustrate a vision of substantive equality that is attentive to institutional, socialand legal structures needed to guarantee specific rights for women under law.With the rise of women's internal differentiation consciousness, feminism also furtherdifferentiated and entered a stage of diversification. Feminism began to emphasize thedifferences within the female group and the diversity of female individuals. People start to arguethat whether women have common characteristics that can be used to describe the female group.Now anti-essentialist feminism has become a core theory in Canada. Anti-essentialist feminismis a theory against essentialist feminism. “Gender essentialism holds that there is some property(or properties) necessary to my being a woman, like being nurturing, or being oppressed, orhaving a uterus.”62 Gender essentialism believes that there are common characteristics betweenwomen and their experiences, and these qualities connect all women together. Anti-essentialist62 Charlotte Witt, “Anti-Essentialism in Feminist Theory” (1995) 23:2 Philos Top 321 at 321.19feminists object to the claim that women can only be called women if they have certaincharacteristics. “Anti-essentialism holds the point that there is no single category “female”pointing instead to the varying perspectives resulting.”63Anti-essential feminism has broadenedthe scope of equality from “men and women” to “women and women”. “Anti-essentialistsmaintain that sex and gender categories are limiting and fail to include the unlimited variety ofdifference in human identity and impose identities rather than simply note their differences.”64Anti-essentialists emphasize the need to account for different perspectives of different groups ofwomen than from the perspective of a single group of women in crafting law and policy.Therefore, when seeking to pass laws to protect women, it should not just be considered womenas a single group, but the differences between individuals and intersectional characteristicsshould be fully considered. Moreover, the reasons why different people are treated in adiscriminatory manner may vary greatly. For instance, the same discrimination in the workplacemay well not be the result of a single factor, but the result of a combination of reasons or factors,so the design of the law should also take into account individual differences.1.5. Women’s Rights and Discrimination at Work in China: Thesis OutlineThis thesis examines the ways in which China’s family planning policies impact women’sexperiences of discrimination in employment, and investigates the current limitations andchallenges of the legal approach to address gender discrimination in employment in this regard.This first introductory chapter has set the context for this investigation and analysis.Chapter 2 explores the history and social context of family planning policies in China, andanalyses how such history and policies impact women’s experiences of discrimination in relationto employment in China. This chapter unfolds from two different perspectives. First, I discuss theevolution of family planning policies in China, examining the gradual shift from one-child policyto two-child policy in recent years. Second, I analyze the prevalence and experience of genderdiscrimination suffered by working women in China. I describe various ways in whichdiscrimination and unfair treatment manifest for women in the workplace, exploring these inrelation to career stages: job search, remuneration, the promotion at work, retirement age and the63 Cynthia Grant Bowman & Elizabeth M Schneider. “Feminist Legal Theory, Feminist Lawmaking, and the LegalProfession.” (1998) 67:2 Fordham L Rev 249 at 249.64 Nancy Levit, “Feminism for Men: Legal Ideology and the Construction of Maleness” (1996) 43:4 UCLA L Rev1037 at 1037.20requirements on claiming pension. Furthermore, I argue that, based on this analysis, enacting thetwo-child policy is likely to reinforce and increase discrimination against working women inChina. I explain why this is a concern and why gender discrimination against women is likely tobe exacerbated following introduction of the two-child policy.Chapter 3 builds from this analysis of experiences of discrimination to examine the legalframework governing gender discrimination and women’s rights at work in China. This chapteranalyzes how China’s current legal framework governing workplace discrimination is constituted,and how it is applied in practice. There are three main lines of inquiry in this chapter. The firstpart introduces China’s domestic laws against gender discrimination in the workplace. At present,there are no specific laws against workplace discrimination in China, and relevant articles arescattered across different areas of regulation. I discuss five primary areas of law: the Constitution,the Labor Law, the Labor Contract Law, the Employment Promotion Law, and the Law on theProtection of Women’s Rights and Interests. The second part analyzes how these laws operate inpractice, and identifies several challenges, including lack of clarity in legal definitions, a lack ofclarity in legal responsibility, and a lack of specialized law enforcement body to oversee theoperation of relevant laws. Finally, the third part analyzes relevant dispute resolution processes,and identifies several procedural challenges that limit access to justice under existing processes.Having identified the scope, content and limitations of China’s existing legal approach toaddressing gender discrimination in employment, Chapter 4 takes up a comparative examinationof Canadian law in order to identify and analyze potential best practices and recommendationsfor law reform. I examine the theoretical basis and orientation of Canadian law as regardsequality between women and men, and analyze how this translates to legal doctrine andoperation under the federal and provincial Human Rights Act and Pay Equity Act. I study howCanada defines gender discrimination in the workplace, the burden of proof and legalresponsibility to prevent discrimination, remedies and penalties, and institutions and disputeresolution processes to deal with these issues. Through the comparative analysis of legislation,law enforcement, judicial and other aspects between China and Canada, this chapter identifiesuseful recommendations to improve the legal framework and its operation in China addressinggender equality and gender discrimination at work.Finally, Chapter 5 details the set of recommendations and solutions proposed based on the21comparative analysis undertaken in Chapter 4.22Chapter 2. The Impact of the Two-Child Policy on Women’s Employment (In)Equality inChinaIn the past, China has caused widespread controversy because of its family planning policy.Since the implementation of China's family planning policy, there have been accusations that theChinese government is forcing people to have only one child. Some people believe that it isagainst human.65Several decades have passed, and the family planning policy, also known as theone-child policy, has been entirely replaced by the two-child policy. In October, 2015, Chinaannounced that the iconic one-child policy had finally been replaced by a universal two-childpolicy. This is regarded by the academic community as a typical major change in 36 years.66 Thisis a huge shift in China's population policy. Fertility policies are not stable. These arecontinuously adjusted and improved, which is a dynamic process. Therefore, China's populationpolicy is regularly adjusted, along with China's social and economic development. Like manycountries in the world, China has an aging population. China’s economic level and populationgrowth are seriously inconsistent。According to the China Development Foundation's ChinaDevelopment Report 202067: Development Trends and Policies for Aging Population, there were130 million citizens aged 60 and over in 2000, accounting for 10.3 percent of the total population.Additionally, there are 88.27 million individuals aged 65 and over, representing 7% of the overallpopulation. In 2010, there were 178 million elderly people aged 60 and over, accounting for13.3% of the total population, and 118 million elderly people aged 65 and over, accounting for8.9% of the total population. At the end of 2019, China's elderly population totaled 254 million,or 18.1 percent of the total population, while the elderly population aged 65 and over totaled 176million, or 12.6 percent of the total population.Under the trend of population aging, the supply of labor is declining, social productivity isinsufficient, and the economic growth rate is declining.65 Martin King Whyte, Wang Feng & Yong Cai. “Challenging Myths About China’s One-Child Policy.” (2015) 74:1Chin J 144 at 144.66 Zeng, supra note1 at 1935.67 “Actively Respond to the Aging Society -- China Development Report 2020 Released” (11 June 2020), online:CDRF <> [].23This chapter examines the impact of China’s shift from the one-child to two-child policyon women’s participation and experiences form application to retirement in the workplace. Thischapters explores the on-the-ground context and experience of issues attending genderdiscrimination in employment in China. In doing so, it illustrates the challenges sought to beremedied by law, and sets a foundation for the next chapter, which takes up a detailedexamination of the current laws attending gender discrimination in employment in China.In the first section, I explain how the Chinese childbirth policies have evolved since theirinception. I introduce China's major changes in birth policy in recent years, from the one-childpolicy to the two-child policy. I describe the process of the development and transformation ofChina's birth policy and explain why China has changed to a two-child policy. I discuss why theimplementation of the two-child policy is not as effective as expected. I examine how the two-child policy has induced social debate about the gender-based discrimination which women aresubjected to in the workplace. I explore women's attitudes towards the two-child policy and thereasons behind it.In the second section, I analyze how the two-child policy has impacted socialunderstandings about women and their roles in Chinese society. I discuss the influence oftraditional opinions, and illustrate how the two-child policy entrenches traditional ideas aboutgendered divisions of labor, creating impacts on women’s equality in the workplace, access toeducation, and the enduring tension between work and family life that shapes their choices aboutboth.In the third section, I examine how the two-child policy has impacted genderdiscrimination in employment from the employer perspective. I unpack how perceived costs areused to legitimate discriminatory treatment against female employees and job candidates. Idiscuss how costs are framed in relation to monetary costs associated with maternity leave, andalso in relation to time and productivity, both as concerns of individual women employees whotake maternity leave, as well as in the broader workforce.Finally, in the fourth section, I describe the experiences of discrimination that women aresubject to in their workplaces at different stages, including during recruitment, during theirperiod of employment, and on retirement. This sets the stage for understanding where there arelegal gaps that may work against women’s equality in the workplace, a subject which the next24chapter takes up.2.1 A Brief History of the Family Planning Policy in China: Movement from a One-Child toTwo-Child PolicyIn this section, I briefly detail the chronology of China’s movement from a one-child totwo-child policy for family planning. I outline some of the dominant concerns two-child policyhas given rise to for women in China, particularly in relation to their employment prospects andpotential for further discrimination in employment.2.1.1. A Brief History of Family Planning in ChinaChina's excessive population was treated as an obstacle that had adverse effects on thecountry's development. Therefore, it should control the population growth. Additionally,demographic increase must be consistent with economic growth. If population increase exceedsthe availability of essential living resources, this would have an adverse effect on thedevelopment of people's living conditions. Meanwhile, it will aggravate the contradictions suchas more people and less land and difficult employment, well as affect the development ofeducation and national economy. Therefore, the Chinese government formulated a familyplanning policy. The family planning policy asked each family to only one child. The one-childpolicy was introduced in 1979 by the Chinese Government to improve poverty. The governmentbelieved that controlling population is necessary.68 In 1982, the PRC Constitution69 designatedthe one-child policy as a "fundamental national policy."China has accumulated fewer births since the family planning policy was introduced. Thisresult significantly reducing the pressure on the resources and environment caused by the rapidpopulation growth and promoting economic and social development. However, it has alsoresulted in an imbalance in China 's population. First, there are fewer newborns and a growingelderly population. In addition, the family planning policy has reduced the risk of childbirth forwomen, and the probability of female death due to childbirth has decreased.70 In addition, each68 Hesketh Therese & Wei Xing Zhu, “The One Child Family Policy: The Good, the Bad, and the Ugly” (1997) 314:7095 BMJ 1685 at 1685.69 Ellen Keng, “Population Control through the One-Child Policy in China; Its Effects on Women” (1997) 18:2Wome’’s Rts L Rep 205 at 205.70 World Health Organization, UNICEF, UNFPA, “The World Bank Trends in Maternal Mortality: 1990 to 2010”25family could only have one child, and many intended parents preferred a boy. The culture ofpreference for boys has existed in ancient feudal society since long ago in China, and manypeople believes that only boys can ensure the continuation of the entire family. They may havean abortion if the first pregnancy is a girl, resulting in a higher male-to-female ratio in thepopulation.Because of the rapid transition from high fertility to low fertility, the main concern of theChinese population is no longer the rapid population growth. China is concerned that thisdemographic dividend is disappearing as the population decreases due to prolonged populationcontrol and reduced availability of labor, which can no longer be used to help the country’seconomic development. In 2012, China’s ‘total dependency ratio of population 71 (refers to theratio of the number of people of non-working age to the number of people of working age in theoverall population) decreased from 34.4% in 2011 to 34.9%, and rose to 35.3% in 2013.72 In2012, China's working-age population declined severely for the first time in quite a long time,with the number of working-age people aged 15 to 59 dropping by 3.45 million and 2.33 millionin 2013.73 The increase of the total dependency ratio of population and the decrease of theabsolute number of working-age population indicate that China's demographic dividend ischanging and disappearing.74Against this backdrop, China began to reconsider its basicpopulation policy, gradually liberalized its population control, and formulated a two-child policy.The two-child policy will not only optimize the age structure of the population and protect laborforce, but also stimulate consumption and guarantee sustained economic growth. Therefore, theeconomic development will not be affected by the shortage of labor force and the increase oflabor cost.China's “two-child policy” has gone through three stages. China permitted families inwhich both parents were the only children to have a second child in the first stage, in 2011. Only(2016), online (pdf):World Health Organization<;jsessionid=D15D5413E6E1FBF9D324F983BD759757?sequence=1> [].71 The total dependency ratio of the population is the ratio between the number of non-working-age people and thenumber of working-age people in the total population. It is the manifestation of the social demographic dividend.The lower the total dependency ratio, the higher the demographic dividend.72 Hongmin Yin & Lifang Guo, “Transformation of Construction Industry Economic Growth Mode Under theBackground of Demographic Bonus’ Disappearing” (2015) 36:6 Constr Econ 21 at 37.73 Ibid at 37.74 Ibid at 37.26China's ethnic minorities were previously permitted to have a second child. On November 15,2013, the Third Plenary Session of the Communist Party of China's Eighteenth CentralCommittee introduced a policy encouraging couples with at least one only child to have twochildren.75 In the third and final stage, the Chinese government officially implemented the two-child policy, available to all families to solve the problems of aging people and relieve the heavyburden of society in 2015. Article 18 of the amendment to the population and family planninglaw clearly states: “the state encourages couples to have two children.” The law came into effectin 2016, marking the end of China's 36-year-old one-child policy.2.1.2. Women’s Attitudes towards the Two-Child Policy in ChinaThe two-child policy is an essential adjustment and improvement made by China's fertilitypolicy to adapt to the situation of the population and economic and social development since thebeginning of the 21st century. Additionally, it is a critical strategic option for the country'sdemographic growth. As soon as the new policy was released, it immediately aroused greatattention from the public. “Do you want to have a second child?” has become the most popularquestion to more than one billion Chinese people. However, this is a question not easilyanswered by individual women in China. As will be further discussed below, given the currentworkplace environment in China, choosing to have another child will bring negative effects totheir career development. A second child also comes with additional financial and time costs forwomen, adding to their burden. Nonetheless, older family members such as grandparents maywish women to have another child, especially if the first child is a girl. All these factors addpressure to women’s decision-making under the new two-child policy.The purpose of the two-child policy is to increase the number of young people, maintain areasonable size of the labor force, delay the rate of population aging, and improve thedemographic structure, so as promoting sustainable and healthy economic development.Although the two-child policy hoped to improve the structure of Chinese population, it has failedto produce the expected results. [B]y May, 2015, only 1.45 million (13.2%) of 11 million eligiblecouples applied for permission to have a second child.76 The reasons for this low uptake are75 Zeng, supra note 1 at 1935.76 “Press conference of National Health and Family Planning Commission” (2015), online: National Health and27highly complex and have sparked widespread discussion. There are various reasons for this,including economic, cultural, political, and social factors. Here, I explore women’s reasons andattitudes towards the two-child policy, linking the reticence to have a second child to thepotential for negative career impacts. By reading the extensive empirical research literature onthe responses of female groups to the two-child policy, from which I have analyzed andcompared to draw my views. Surprisingly, people, especially the attitudes held by womentowards the two-child policy is negative。Many women are unwilling to have a second child due to pressure and conflict betweenwork and household economics.77They expect to gain economic independence and a sense ofself-identity from work like men do. The enforcement of the two-child policy has only served tointensify the conflict between career development and family status. Women are fearful of losingtheir jobs and the opportunities to be promoted. The extensive empirical research literature onwomen’s responses to the two-child policy, show a widespread belief that the two-child policywill make gender discrimination worse in the workplace, a large majority of women suppresstheir fertility desires for career development. According to the data released by the World Bank,female employees account for 65% of the total job market in China.78 Women make up a largeproportion of the workforce in China, and their opinions should be more valued in policydevelopment。Women, especially those who are unmarried, have been subject to gender inequality in theworkplace for quite a long time. “In China, women may face discrimination in every aspect oftheir social life.”79 Stereotypes about women manifest in various aspects of life, for example,family status, career, education, preference for sons and others.80 In employment, theintroduction of the two-child policy may create additional disadvantage for women due, forFamily Planning Commission <>[].77Yanxia Zhao, “Research on the Influencing Factors of Career Women’s “Second Child” Birth Choice” (2019) 3:8Comp Study Cultural Innovation 192 at 192.78 “Rate of women entering job market higher in China than in US and Japan” (10 December 2018), online: GlobalTimes <> [].79 “Gender Equality And Women’s Development in China” (22 September 2015), online: The State CouncilInfomation Office of China <>[].80 UN Report of 201428example, to the fact that employers bear part of the cost of maternity leave, despite a maternityinsurance system in China81. Consequently, implementation of the two-child policy has onlyexacerbated hidden disadvantages for women in employment. In addition, since women in highereducation generally have their first child between 30 and 32 years of age, if they have anotherchild, they will be between 34 and 36 years old. Most were in their 40s when their second childborn was in kindergarten.82A second childbirth may leave them needing to quit their posts tofulfill family duties, which hinders career development for women and makes it more difficultfor them to have an improved social status. This can cost them the best employmentopportunities. As such, women are forced to confront the tension and conflict caused by the needfor a balance between childcare and work.This section briefly reviewed the history and evolution of family planning policies inChina towards the now-implemented two-child policy. This policy has given rise to concernsamongst women about further discrimination in employment, and created a situation where manywomen perceive conflict and tension between their family and work lives. The next sectionunpacks these tensions, analyzing how the two-child policy impacts women’s employmentprospects, higher education, and family status.2.2. The Impact of the Two-Child Policy on Women’s Social Positions in ChinaThis section analyzes how the two-child policy impacts women’s status and experiences inChina, particularly in relation to their potential careers and the tension between work and familylife. I first discuss the influence of traditional opinions on women’s position in Chinese society. Ithen discuss how the policy exacerbates existing employment inequality for women in China.Second, I discuss how it influences women’s choices regarding higher education and careerprospects. Third, I discuss how this functions to lower the social status of women in theirhousehold.81 Maternity insurance: A social insurance system whereby the state and society provide medical care, maternitybenefits, and maternity leave to women workers during pregnancy and childbirth when the labor is temporarilyinterrupted, i.e., it provides the necessary financial compensation and medical care to workers who give birth.China’s maternity insurance benefits consist of two main categories: maternity allowance and maternity medicaltreatment. Besides, its purpose is to help working women recover their ability to work and return to work byproviding them with maternity benefits, medical care, and maternity leave.82 Quancheng Song & Qingying Wen, “The Significance, Current Situation and Problems of the Implementation ofthe Policy of Single Second Child Population in China” (2015) 31:1 J Nantong Univ Soc Sci Ed 122 at Influence of Traditional Opinions“In traditional feudal China, reproduction was the main criterion to measure the value ofwomen, and the seeds of sexism had long been planted. The division of labor pattern of “men incharge of the outside and women in charge of the inside” keeps women separated from work fora long time. Even in modern times, traditional gender discrimination continues to impactwomen's employment.”83Although, in the 21st century, gender discrimination are rarelyrecognized in public, and the law clearly stipulates equality between men and women。But thefeudal idea that men are superior to women still lingers in the subconscious of many people.Society's definition of women tends to ignore women's innovative spirit and creativity, andexpectations of women center on gentle obedience to tradition. Social norms position women tofocus more on the family, which has a profound influence on the Confucian cultural societyrepresented by China. “Confucius believed that the woman's place was in the home to take careof her husband and to raise sons.”84 “Confucius emphasized the need for women to be quiet,obedient, neat, chaste, and hard-working within the home, all of which furthered women'sseclusion and isolation in Chinese society.”85 These ideas can, and do, influence women’sinternal thoughts and narratives, as well, which may be accepting of these entrenched norms. Asa result, women may underestimate their own abilities, blindly identify with the image created bysociety for them, and believe that family is the most important for them. For other women,challenging such prevalent and entrenched norms can be equally difficult.2.2.2. Women’s Employment Inequality in ChinaChina’s “Law for the Protection of Women’s Rights and Interests” clearly stipulates thatwomen have the same right to employment as men.86 Employers have a duty to safeguardwomen's wellbeing and wellbeing at work and to avoid assigning workers to hazardousemployment. Women have the right to enjoy employment, but they also have an moral obligationto reproduce and nurture the next generation. In the advent of the two-child policy, some83 Qiwen Tang, “Reasons and Solutions for Female Employment Discrimination in the Background of the UniversalTwo-Child Policy” in 6th International Conference on Humanities and Social Science Research (Shenzhen: AtlantisPress, 2020) 38 at 38.84 Fang, Supra note 40 at 163.85 Lin Yutang,My Country and My People (New York: Reynal & Hitchcock, 1935) at 153.86 Law on the Protection of Women’s Rights and Interests of the People’s Republic of China, NPC 1992, c22[LPWRIPRC].30enterprises are reconsidering the impact this will have vis-à-vis female employees. As anexample, an employer is concerned about whether a female worker they recruit who has not hadchildren will have two births in the first years of employment so that the woman will work for ashort period at the unit. For this reason, many employers do not want to hire such a workerbecause they believe that are paying more in time and money costs. This may make it morechallenging for women to both enter employment, and return to the workplace followingchildbirth.This shift may result in a retreat of women from the workforce. Engels once said that theprerequisite for the advancement of women's social status is to go out of the small familyenvironment into the general environment of the workplace.87 On the contrary, the “full-fledgedtwo child” policy may cause women in society to retreat from the workplace back into the familyenvironment.In addition, in light of child care and family duty expectations, some women choose stableand uncompetitive occupations. These expectations and the employment choices flowing fromthem have, over time, led to a wider lack of ambition for women to pursue higher education,which has, in turn, affected the process of women 's socialization. Especially in rural areas withstrong traditional values ​ ​ that favor men over women, most parents will think that under theinfluence of this policy, the central role of women is to take care of two children at home, as longas they are able to do housework.Women tend to work in jobs that reflect gender-based stereotypes about the traditionaltemperament of women, such as kindergarten teachers and nurses. It does not mean that womenchoose their job independently. Choices are often constrained by systems, structures, attitudes,limitations. The two-child policy may operate to further entrench the gendered divisions of laborboth within the household and the workplace.2.2.3. Women’s Right to Education and Career ProspectsThe right to education is a basic citizen's right. Article 46 of the Constitution stipulates,“Chinese citizens have the right and obligation to receive education.”88 Women's cultural andeducational rights are equal to men's, which is the premise of women's equal competition with87 Friedrich Engels, The Origin of the Family, Private Property, and the State (New York: Penguin, 2007) at 12-32.88 Constitution of the People’s Republic of China, NPC 1982, c 46 [CPRC].31men in the workplace. A lack of education will directly lead to disadvantage in the labor market.If women cannot fully enjoy the right to education, it will inevitably affect their economicindependence and employment prospects. This recognizes the fundamental importance ofeducation, which has a great impact on a woman's life and is the basis for the realization of otherrights.The two-child policy will likely affect women’s rights to education. First, female collegestudents may choose to marry and have children early, in order to enter the labor market withoutthe question of marriage and child-bearing hanging over their heads. In this scenario, somewomen will give up the opportunity to continue their education, such as by undertaking a mastersor doctoral degree. This, in turn, limits the overall career trajectory and employment prospectsfor these women, excluding them from professions and occupations requiring post-baccalaureateeducation.89The introduction of the two-child policy creates similar effects for women who alreadyhave jobs, but wish to improve their education and update their knowledge. With the fullimplementation of the two-child policy, the progress of many women in pursuing highereducation will be slower, and fewer women will pursue higher positions in their workplace. Aftergiving birth to their first child, women had the opportunity to learn to improve their vocationalskills. The possibility or desire of having a second child will further reduce these opportunities,particularly given family duty expectations of women in China. 902.2.4. The Tension between Work and Family LifeWomen in China face a difficult choice between family and work. It is generallyunderstood to be a woman's responsibility to raise children at home. “At the same time, thedemands of the elders in the family are often in conflict with the fertility desire of the women.”91Some women do not want to have a second child. “However, the elders with traditional familyvalues tend to think that more children are better and they urge women to have a second child.”92Under the encouragement of new national policies and at the request of many elders in the family,89 Qianqian Cheng et al, “An Empirical Study on the Fertility Desire under the Two-children Policy——TakingGuangzhou as an Example” (2019) 19:5 Mod Hosp 633 at 633.90 Ibid at 633.91 Wen Xiao, Shumeng Li & YuXuan Zhong, “The Influence of the Universal Two-Child Policy on the “Birth” and“Rise” of Career Women” (2017) 18 Labor Secur World 24 at 24.92 Ibid at 24.32women often do not have a meaningful choice to decide whether to have children, which has adirect influence on their career development.In recent years there has been a social ethos that encourages women to return to the homearound the world. It is believed this can be beneficial to the education and healthy developmentof children. Actually, high quality child care is beneficial to children and women. Therefore,women do not need to care for children in home. Even this research is not focus on childcarepolicies. Childcare policies are part of a package of reforms which support women in workface.But I think it's very dangerous. Many women who have a second child give up going back towork and stay at home because of financial pressure and concern for their children. “Returningwomen to the family is a trap” is a new concept that fully opens up in the context of the secondchild.”93 Due to the long-term trajectory of women's separation from society after giving birth totheir second child, women lack a certain degree of social competitiveness. “Returning women tothe family” has appeared in society, but after returning to the family, women have no jobs and nosource of income, increasing dependence on their husbands, and moving women into a“marginalized” position.“In real life, the fact that women are in a marginalized position is not a result of women'sstatus but a result of a more severe female employment environment in the process of furtheradjusting the fertility policy.”94 If women do not have independent income, the power of theirvoice in the family will become smaller. This may be further compounded in situations whereshe is devalued within the home, such as by her husband, because she does not earn income andthe productive value of her domestic labor is not recognized.The long-term absence of women from the labor market further negatively impacts theirability to rejoin that market at a later date. When the children are old enough and these womenwant to find work again, they may find that she is not competitive, does not meet jobrequirements, and faces substantial difficulty in improving or adapting her skillset andqualifications.Having canvassed the various ways in which the two-child policy may operate tonegatively impact women’s employment access and equality in China, the next section goes on93 Wang Yizhi, “A Brief Analysis of Women’s Rights and Interests Protection under the Background of UniversalSecond Child” (2016) 2 Leg Forum 192 at .19294 Ibid at 192.33to examine how expectations concerning childbearing impact an employer’s “cost calculations”,leading to gender discrimination in employment on this basis.2.3. The Impact of Childbearing Expectations on Gender discrimination in Employment inChinaUnder the background of the universal two-child policy, women's employmentdiscrimination has deepened in China. Women's lower productivity during pregnancy anddelivery, extended maternity leave, and the welfare policy of paid leave all contribute to thediscrimination against women in employment. In the face of a difficult employment situation andeconomic pressure, more women and families are afraid to have children even though the two-child policy is open to all.This section analyzes the causes of gender discrimination against women in the workplace.From an employer perspective, heightened costs and burdens are used to justify continueddiscrimination against women in employment, including in relation to recruitment and duringtheir employment.2.3.1. Gender discrimination in Employment: the Employer PerspectiveThe workplace is regarded as one of the most prominent places for gender discriminationand is also a place where discrimination cases occur frequently. The current labor market isdominated by private enterprises. Pursuing full benefit, as the market economy's primary body, isessential for businesses to improve their productivity and sustain sustainable growth, and itserves as the market economy's regulator.95 Women's working time and the cost of specialrequirements, such as in relation to maternity leave, are often seen as contrary to the company'sgoal of maximizing benefits during the development process.The implementation of the two-child policy may exacerbate these impacts on women. Oneof reasons that employers center discriminatory treatment is physiological difference betweenmen and women. Women physiologically perform the task of childbirth and parenting the nextgeneration, which ensures that women's employment position is less secure than men's, andwomen are physically weaker than men. This notion of physiological difference often becomes95 Tang, supra note 83.34the reason for employers' contempt for women's rights. Business owners will also take thesefactors into account and are more inclined to hire fewer female employees to reduce the cost oftime and money.2.3.2. The “Cost” of Maternity LeaveIn China, the maternity leave system is mainly stipulated in Article 7 of the Rules on theLabor Protection of Female Employees: Female workers are entitled to 98 days paid parentalleave, which includes 15 days of antenatal leave. In the event of a traumatic birth and childbirth,an additional 15 days of parental leave would be given. Female workers who have more than onechild in a single birth shall be given an additional 15 days of maternity leave for each additionalchild.96 Therefore, when the rights of female employees are violated, it can take the followingmethods to protect their legitimate rights and interests: First, the employers can appeal to thecompetent department of the enterprise or labor supervision department. Second, it can apply forarbitration to the labor dispute arbitration committee. Third, if it is not satisfied with the decisionof the labor administration department or the arbitration award, female employees can sue in thepeople’s court.Maternity leave policies create employment costs for employers. “According to therelevant policies of Zhejiang Province, female employees have 128 days of maternity leave,including 98 days of necessary leave and 30 days of incentive leave. The allowance provided bythe 128-day maternity leave comes from the company's monthly employee maternity insurancecosts.”97As such, there are direct financial costs to employers for each employee who takesmaternity leave, creating a disincentive to employ women who an employer expects will takematernity leave.There are also indirect costs caused by job vacancies when an employee takes maternityleave. This includes not only the maternity leave pay for the employee on leave, but also timeand monetary costs for recruiting and training replacement workers to fill vacancies during amaternity leave. Further, after an employee returns from maternity leave, the employer may berequired to pay her wages for breastfeeding. The implementation of the two-child policy will be96 Rules on the Labor Protection of Female Employees, 28 April 2012, DSCPRC No 619, article 7.97 Shuibin Meng et al, “Explore the Causes of Employment Discrimination against Women in Enterprises under theUniversal Two-Child Policy” (2008) 11 Leg Forum 10 at 10.35seen as increasing all of these costs for employers, creating a basis for further discriminationagainst women in employment.2.3.3. The “Costs” Associated with Women’s Employment as “Temporary”Relatedly, employers may see women’s participation in the workforce as temporary,creating additional costs and risks associated with a lack of stability in the workforce, and thuscreating further incentive against employing women. The staffing of vacant positions left byfemale employees on maternity leave is seen as a significant management problem. Often, jobsrequire consistency among employees or members of a project team. “For example, someresearch projects require researchers to be involved from start to end. Such projects requireswomen to work long hours. Female staffs choose to give a birth and take care child for one ortwo years may affect the whole project98 This is one of the reasons why women who have asecond child may have difficulty finding a job or getting promoted. “Reducing staff mobility isconducive to reducing the company's employment costs.”99Hiring female employees will inevitably (or, at least, be seen to inevitably) lead to furtherinterruption of work if they have a second child. “The employer needs to find new staff toreplace them and those new staff are not familiar with the work, which will reduce the workefficiency.”100 In addition, for some women who return to work after maternity leave, their careermotivations and general life expectations will have changed. They may focus greater energy andtime on their family, or may even leave their job altogether.In sum, employers perceive women’s role or expectations concerning childbearing as“costs” that negatively impact the enterprise in many ways. This creates a foundation from whichgender-based discrimination against women in employment unfolds in myriad ways and atvarious stages of employment in China. With this context in mind, the next section howemployment discrimination manifests for women in China. This sets a stage for a deeperexamination of the current legal framework regarding employment and gender discrimination.98 Xiao, supra note 91 at 24.99 Ibid at 24.100 Hang Gao, “A Study on the Employment Impact of the Two-Child Policy on Female Labor Force” (2019) 33:7Businessman 90 at 90.362.4. Mapping Gender-Based Employment Discrimination in China: Women’s Experiencesduring the Employment Life CycleEmployment discrimination is a new concept in Chinese law. It was not until 2005 that thestanding committee of the National People's Congress (NPC) of China ratified the ILO's coreconvention, the Discrimination (Employment and Occupation) Convention,101 that employmentdiscrimination began to be identified consistently in China. According to the ILO Convention,discrimination refers to “any distinction, exclusion or preference which, based on race, color, sex,religion, political opinion, national origin or social origin, has the effect of abolishing orundermining equality of opportunity or treatment in employment or occupation.”102 In otherwords, discrimination means mistreating someone on the basis of an identity characteristic theypossess and that cannot be changed. Any distinction, exclusion, restriction, and preference madebased on gender is gender discrimination in employment.As Chinese culture develops and living standards rise, an increasing number of Chinesepursue economic independence and personal freedom through work opportunities. However, thephenomenon of sex discrimination in employment continues to hinder women's employment anddevelopment. There is also discrimination in employment services. For example, rural womenfind it challenging to enjoy various employment information, vocational guidance, and skilltraining provided by government employment service agencies. China has been graduallyimproving the status of women in recent years. However, gender discrimination remains inemployment, and other, settings.The implementation of the universal two-child policy has made employmentdiscrimination for women even worse as the job market has become very competitive. “In fact,China's current job market is not short of talents, nor lack of women willing to give up the ideaof having a second child for the sake of career. Therefore, under such market competitionmechanism, women's right to choose is often in great conflict with reality.”103This section describes the experiences of employment discrimination women face in China.It unfolds from a temporal perspective to elaborate on the various difficulties facing Chinesewomen, from joining the workforce to reaching the end of their career. It is split into three phases:101 DEOC, supra note 31 at 1.102 Ibid at 1.103 Xiao, supra note 98 at 24.37recruitment; employment; and, retirement.2.4.1. Gender-Based Discrimination in RecruitmentThe most prominent manifestation of gender-based employment discrimination in Chinaarises in the context of job searches and recruitment. “According to the 2015 Gender EqualityWhite Paper104, more than 72 per cent of Chinese women have a distinct feeling that they aredenied the job opportunity and the chance of promotion because of their gender.”105 Gender-based discrimination at this phase manifests in various ways, often focused on particularrequirements in the job advertisement and interviews, and, at times, explicitly in relation toassumed family planning.In Chapter 3, I will focus on China’s legal provisions on human rights and discrimination.Moreover, I will first briefly introduce the relevant legal background in China in order to betterhelp readers understand this part. There is no law specifically addressing discrimination in China,nor is there a specific human rights law, except for individual provisions in the Labor Law,106 theEmployment Promotion Act107, and the Protection of Rights and Interests of Women.108Amongthem, the most significant one is the Labor Law, which establishes the principle of equalemployment and prohibits discrimination. However, anti-discrimination provisions do notconstitute a large part and are not the main issue addressed by the Labor Law. It means that theLabor Law also does not formulate more detailed regulations on employment discrimination,such as the definition is not classified, the criteria for judging discrimination, and other issues.Also, these issues will be described in Chapter 3.“Employment discrimination during recruitment generally takes two forms, explicit104 2015 marked the 20th anniversary of the UN Fourth World Conference on Women held in Beijing. The Chinesegovernment issued a white paper to comprehensively introduce China’s policy measures and unremitting efforts topromote gender equality and women’s development. The white paper Gender Equality and Women’s Development inChina is about 11,000 words in length, detailing the Chinese government’s policy measures and remarkableachievements in the areas of institutional safeguards, women and the economy, women and education, as well aswomen and health, etc. for gender equality and women’s development. See: “Gender Equality and Women’sDevelopment in China” (22 September 2015), online: The State Council Information Office of the People’s Republicof China <> [].105 Hui Yang, “Urban Women’s Gender discrimination Issues in Employment”, online: Women of China<> [].106 Labor Law of the People’s Republic of China, NPC 1994, [LLPRC].107 Employment Promotion Law of the People’s Republic of China, NPC 2007, [EPLPRC].108 LPWRIPRC, supra note 86 .38discrimination and implicit discrimination.”109 Explicit discrimination is giving direct unfairtreatment on the basis of a particular identify characteristic, such as gender. For example, insome recruitment advertisements in China, the employer makes it clear that they prefer maleapplicants even there is no reason why this position is not suitable for women. “Even now, thephrase “prefer to hire” or “hire only” is often used in job ads. According to a labor magazinesurvey, 26 percent of job ads explicitly state “men only.”110In the recruitment process, the employer may also take into consideration factors such asmarital status, fertility status, and willingness or desire to bear children of the female applicants,which affects the competitiveness of female applicants. To make themselves more competitive,some women will attempt to resolve the marriage and childbirth “problems” before applying forjobs. Many women choose to get married and have children directly following graduation, andthen apply for jobs so employers no longer have hesitations about these two aspects. Otherfemale applicants choose to accept employment conditions prohibiting marriage or pregnancy fora particular period. For example, many employers ask female applicants in the interview process:Do you have a boyfriend now? Are you planning to get married in a few years? How manychildren do you want to have? More employers will ask female applicants if they are willing toarrange their planned parenthood according to the company's plan. Such explicit questions canput pressure on female workers, who may be forced to accept absurd conditions in order to get ajob.Increased education and awareness of women’s rights have marked the start of movementaway from explicit gender-based discrimination hiring. In order to avoid unnecessary legaldisputes, many companies have gradually stopped excluding women from employment in suchexplicit and direct ways. Nonetheless, although reduced, explicit discrimination remains, and isan essential part of the protection of women's employment equality to be addressed.Unlike explicit discrimination, implicit discrimination appears to set the same conditionsfor all groups, but creates conditions that are difficult for women to achieve, resulting in anunequal position for women in employment. “Implicit discrimination means that seemingly109 Therese Macan & Stephanie Merritt, “Actions Speak Too: Uncovering Possible Implicit and ExplicitDiscrimination in the Employment Interview Process” in Gerard P Hodgkinson & J Kevin Ford, eds, InternationalReview of Industrial and Organizational Psychology (New Jersey: Wiley Blackwell, 2011) 293 at 293.110 Jiefeng Lu, “Employment Discrimination in China: The Current Situation and Principle Challenges” (2009) 32:1Hamline L Rev 133 at 133.39neutral rules or standards cause undue adverse consequences in terms of opportunities andtreatment for people with specific characteristics, resulting in discrimination against a particulargroup.” 111 “For instance, rather than outright rejecting female candidates, employers can employproactive initiatives such as requesting applicants to be "very good at playing soccer.”112 Settinggender requirements in recruitment advertisements is a common phenomenon. “There are manyforms of gender discrimination in the workplace, such as the requirements for women's age,education, height, and appearance. Most of these requirements are not related to job positions'responsibilities and are not necessary for the job position.”113In practice, implicit discrimination is more widely applied than explicit discrimination inemployment settings in China. Because of its apparent neutrality, implicit discrimination is moredifficult to identify than explicit discrimination. “Implicit discrimination is not based onconditions, but on results, which potentially have adverse consequences for an individual or agroup of people.”1142.4.2. Gender-Based Discrimination during EmploymentWomen in China are disproportionately subjected to two types of workplace harassment.To begin, women often experience horizontal sexism and segregation in the workplace.115Horizontal discrimination applies to women's difficulties accessing occupations classified as"male," such as manual labour such as drivers and porters, as well as jobs of elevated socialstanding and technical designations such as physicians, attorneys, and university professors.Although certain occupations are classified as "women's employment," they are typicallyidentical to those who stress feminine and nurturing qualities, such as domestic service, nursing,kindergarten teachers, and the majority of service workers.Women also face vertical segregation and discrimination in employment.116 Verticaldistinction applies to men and women working in the same sector, where men often hold a higher111 Macan, supra note 109 at 109.112 Lu, supra note 110 at 133.113 Ibid at 133.114 Jie Chen, Equal Protection or Invisible Discrimination Study on the Anti-employment Gender discriminationSystem in America (Master thesis, Xiamen: Xiamen University, 2017) at 37.115 Robert M Blackburn et al, “Explaining Gender Segregation” (2002) 53:4 BJ S 513 at513 .116 Maria Charles, “Deciphering Sex Segregation: Vertical and Horizontal Inequalities in Ten National LaborMarkets” (2003) 6:4 Acta Sociol 267 at 267.40job and earn a higher income, whereas women work in lower-level positions that do not needtechnology, earn lower wages, and do not advance rapidly. Employers also compensateindividually for equal jobs performed by men and women. For instance, a part-time work for awoman in lieu of a full-time job, or a job with a subdivision or a separate name in order to assertthat the man and woman have distinct jobs with distinct earnings.Occupational segregation has long been a significant concern for feminists. Feminists'anxiety over gender inequality created by workplace gender disparity has focused aroundwhether the female population is heavily clustered in low-skilled, low-wage, and low-social-status professions.117 Feminists have analyzed the causes of gender segregation from manyperspectives, including cultural and institutional perspectives.118 They demonstrate how women'soccupational segregation is based on traditional gender roles: women are primarily responsiblefor childbearing, childrearing, and family management. Male and female is a mode of genderdivision of labor that patriarchy adheres to. This pattern continues in the labor market, wheremen naturally gravitate toward high-skilled, well-compensated occupations due to their inherentadvantages.119 Due to family role constraints and insufficient investment in human capital,women are frequently forced to seek jobs that accommodate their family and caregivingresponsibilities, which are frequently low-skilled and low-paid. Thus, the so-called "male" and"female" occupations have established the occupational gender division in society and reachedan absolute consensus: those in "male" occupations, whether the employer or male staff, willactively or inadvertently oppose female entry; men who enter "feminine" occupations are vieweddifferently by society.120At the same time, due to the primary responsibility of raising children and taking care ofthe family, it is complicated for women to obtain information which results in a disadvantageposition for women in terms of employment information, work experience and technical skills.Employers treat economic rationality as their most important goal: Employers are more117 Xianguo Yao & Sisheng Xie, “The Economic Effect of Occupational Segregation -- An Analysis of OccupationalGender discrimination in China’s Urban Employed Population” (2006) 36:2 J Zhejiang U H & Soc Sci 73 at 73.118 Hedi Hartmann, “Capitalism, Patriarchy, and Job Segregation by Sex” (1976) 1:3 Signs 137 at 137..119 Yao, supra note 117 at 73.120 Ibid at 73.41inclined to select men for careers and jobs requiring a high degree of competence, expertise, andobligation, on the one hand. In the other hand, due to the nature and stage of their employment,as well as their relative lack of knowledge and experience, female workers are more likely towork in marginal departments with low ability standards, limited development space, and lessadvancement opportunities.2.4.3. Gender-Based Discrimination: Impacts on RetirementThe retirement age of women in China is 50 years old, and that of men is 60 years old inlaw. This is considered as the statutory retirement age that women generally aged 50 years oldshould quit their positions. Regardless of unwillingness, they have to do so all the same. All overthe world, the average retirement age difference between men and women is 4.41 years, while inChina, the difference between male and female workers is 10 years. Clearly, the gap between theretirement ages of men and women in China is higher than the world average.121 Furthermore,China 's pension system is benchmarked against working hours, which means that becausewomen tend to work fewer hours than men, women will receive less pension than men afterretirement. In Liaoning province, men received an average pension of 2,386 yuan per month,while women received only 1,714 yuan, a gap of 40%.122 According to the 2016 report on theWomen's Labor Market, less than 30 percent of the 85 countries surveyed have a genderdifference of more than 10 percent between male and female state pensions, including China.123The earlier women retire, the greater the difference wage gap between women and men. This isespecially true for some highly educated women who start to work later due to longer education.In addition, early retirement is also a waste of female power. According to United Nationsstatistics, women accounted for 54% of the global population aged 60 and over in 2010 and 61%of the global population aged 80 and over in 2015. 124According to statistics, the average lifeexpectancy for men is 73.64 years, and 79.43 years for women in China.125 Compared with men,women face greater pension pressure due to their longer life expectancy. Women live longer thanmen, but work fewer hours than men, which is clearly a paradox. It is a waste of female value totake women out of work at 50, when they are still a productive and creative.121 Jia Lin, “Legal Analysis and Institutional Arrangement of Retirement Age” (2015) 6 LCS 5 at 24.122 Jiang Su, “The Gender Gap in China’s Pension System” (2019) 9 TF 112 at 112.123 Ibid at 112.124 124 Ibid at 112.125 Ibid at 112.422.5. ConclusionWhen the two-child policy was first implemented, there were more than 150 million one-child families in China. The policy shift ignited serious debate about the potential socialrepercussions, such as whether the population could surge in light of the number of eligiblecouples of child-bearing age who might have a second child. After the implementation of thepolicy, people from all walks of life began to pay attention to the problems and challengesbrought about by the “two-child policy.” For example, women of child-bearing age are oftendiscriminated against for having a second child in their career development. Women'swillingness to have a second child or the possibility of having a second child has become anobstacle to women's employment or promotion. In addition, women's reproductive rights, lifeand health rights, marriage and family rights, and women's social status are also being challenged.“In the context of the new fertility policy, how do women balance fertility and employment?How to weaken employment discrimination and create an inclusive employment environment? Ithas become an urgent issue of people's livelihood and society[.]”126The protection of women's rights received renewed attention from legal professionals inlight of the “two-child policy”, with particular consideration given to how to protect women'semployment rights in this new context, and in light of increasing discrimination on this basis.The introduction of the two-child policy has increasingly highlighted the inadequacy of relevantsupporting policies, laws, and regulations, and the lack of specific supporting measures.At present, and as examined in this chapter, the costs associated with the two-child policyare mainly distributed at the individual employer and employee levels. Economic disincentiveson the employer have led to abandonment and exclusion of women in employment. Employers’goal to maximize profits is seen as at odds with the numerous costs perceived to arise for femaleemployees who bear children, including direct maternity leave costs, as well as ripple effects,both monetary and production-oriented, on the enterprise.As a result, women face discrimination both in obtaining employment and also during theiremployment. Women who become pregnant may experience further adverse treatment. Pregnantwomen may be transferred to inappropriate positions or have their bonuses reduced. Employersmay find other unreasonable and illegal ways to force female workers to resign, or even pay a fee126 Tang, supra note 83 at 38.43to dismiss female workers. Some women have to delay or give up having a second child in orderto save their jobs. These examples illustrate that the issues resulting from the two-child policy interms of its impacts on women’s employment equality require legal reform and intervention.In China, employment discrimination has become one of the essential factors that seriouslyaffect women's equality. It exists in the entire process of female employment from they start towork until retirement. The next chapter goes on to analyze consequential impacts on, and failingsof, the current legal framework in light of the two-child policy, examining how the current lawsgoverning women’s rights and employment do, and do not, adequately address the discriminationarising from the two-child policy as analyzed in this chapter.44Chapter 3. Laws Addressing Employment Discrimination on the Basis of Sex in China: AnAnalysis of the Relevant Legal Frameworks and ProcessesChapter 2 addressed the history of China's two-child policy and the effect it has had onwomen's perceptions of workplace harassment. This chapter discusses the current status ofChina's employment discrimination regulations. I analyze how China’s current legal frameworkto address employment discrimination is not sufficient to provide meaningful protection andprevention of gender discrimination at work. I first review the existing legal framework in China,and then discussed how the laws operate in practice, illustrating the myriad challenges arising inthe operation of the law. I analyze identified issues within China’s existing legal framework indoctrine, in enforcement or operation on the ground, and in administrative of justice and accessto remedies.In the first section, I set out China’s laws against gender discrimination in the workplace.In order to understand the full complement of laws promoting gender equality and non-discrimination in employment, I discuss an array of rights and obligations that are contained inseveral different laws and regulations in China. I analyze laws relating to gender discriminationin the workplace under: the Constitution, the Law on the Protection of Women’s Rights andInterests, the Labor Law, the Labor Contract Law, and the Employment Promotion Law. Idescribe and demonstrate how these laws work together to protect women’s labor rights andguarantee equality between men and women in the workplace.In the second section, I analyze how the laws described in the first part work in practice,how effective they are, and what limitations and challenges arise in their operation. In particular,I establish three key problems with the implementation and operation of these laws. First, Iidentify a legislative gap in defining and responding to gender discrimination in employment. Atpresent, there is no clear definition about what workplace discrimination is under the variousrelevant laws, nor an identification of forms of workplace discrimination. Second, there is a lackof clear legal consequences for discrimination in the workplace. There is no uniform standard fordefining employer obligations, assigning legal responsibility, and gathering evidence to meet theburden of proof in cases of workplace discrimination. These all contribute to a lack of effectivedeterrent effect under the law. Third, there is no specialized law enforcement agency or45administrative body in China to enforce relevant laws against gender discrimination in theworkplace, further creating conditions in which employers may act with impunity.In the third section, I discuss access to, and effectiveness of, existing dispute settlementprocedures. At present, the dominant approach in addressing instances of gender discriminationin the Chinese workplace is: one conciliation, one arbitration and two deliberations. This processrequires labor disputes to first be mediated at the organization level (one conciliation). Failingresolution at that stage, parties may submit the dispute to a labor dispute arbitration committee(one arbitration). If one party refuses to accept the outcome at arbitration, it may then bring a suitto the people’s court, with the possibility of appeal from the first instance judgment (twodeliberations). As I discuss, this dispute resolution process is lengthy, costly, and potentiallyineffective both at an individual level to provide a meaningful remedy and at a systemic level tochange behaviors and conditions.3.1. The Legal Framework Addressing Gender discrimination in the Workplace in ChinaThis section sets out and doctrinally analyzes China’s current legal framework addressinggender discrimination in the workplace. Relevant laws are located in several disparate areas ofregulation under the Chinese legal system. The first is the Constitution that guarantees citizens’basic labor rights and equal rights. Second is the Law on the Protection of Women’s Rights andInterests, which specifically protects women’s rights and interests. The third is the Labor Law,which identifies specific labor rights, and the Labor Contract Law, which regulates the signing oflabor contracts. Fourth, there are employment promotion laws that promote employment.As I discuss in greater detail in this section, each of these areas of law provide somerecognition of women’s rights in the workplace. The Constitution guarantees women’s equalright to work mainly through the provision of basic equality rights. However, as it is thefoundation of the state, this right is framed generally, and other specific laws are needed toimplement these basic rights. The Labor Law mainly protects women’s right to equalemployment, including in relation to employment opportunities and workplace treatment. TheLabor Law also protects women’s employment and job security during childbirth, pregnancy andlactation. The Labor Contract Law prohibits employers from minimizing their responsibilitiesand damaging the rights of employees through standardization of the Labor Contract. Since laborlaws protect all workers, women are also protected. No one can infringe the rights of female46workers. The Employment Promotion Law aims to standardize the workplace environment,creating a fair environment for all workers, providing equal employment opportunities andtreatment, and requiring the state to take strong protection measures to help workers find jobs.Finally, the Law on the Protection of Women’s Rights and Interests directly focuses on theprotection of women. It safeguards women's civil, cultural, and educational rights, labor andsocial security rights, property and personal rights, as well as marriage and family rights.Within each of these areas, laws concerning gender discrimination in employment in Chinamay be divided into two conceptual frameworks: first, laws that guarantee equal protection andrights regarding employment to both sexes; and, second, laws that afford special protection towomen’s rights in employment. Feminist legal theory brings an important and sharp lens tounderstanding discrimination against women. However, the influence of feminist theory onChinese law has been limited to date. There are few studies combining feminist theories withjurisprudence. In this chapter, I use feminist legal theory, especially cultural and radical feministtheory as explained in my Introduction chapter, to examine China’s laws addressingdiscrimination against women in the workplace.This section first outlines the relevant laws in each of the identified areas above. I thenanalyze how the relevant laws promote anti-discrimination and equality for women in relation toemployment. I comment on the particular form of equality advanced by each area of law,illustrating the ways in which a reliance on formal equality may limit the effectiveness of thedoctrine in advancing equality and non-discrimination for women, particularly as it relates tofamily status and child-bearing, in the workplace3.1.1. The ConstitutionA brief introduction to the validity of the Constitution in China and how it operates is inorder to better help the reader understand Chinese law. The Constitution is the fundamental lawof the country and it sets out general norms and principles for making specific laws. What ismore, Constitutional review in China is the responsibility of the National People’s Congress andits Standing Committee. The National People’s Congress is the highest organ of state power andlegislature in China. However, China does not have a constitutional court, and specialized courtssuch as the Constitutional Council are responsible for handling cases of unconstitutionality. Incontrast to countries such as the United States and Canada, China’s ordinary judiciary authorities47are not allowed to conduct the constitutional review, Chinese courts cannot directly citeconstitutional provisions as a basis for adjudication in their review, and the Constitution is notjusticiable, nor can the courts accept and try cases brought by parties based on the constitution.Although this system has been controversial, China’s constitutional oversight system is acomplex issue. Those issues are beyond the scope of this thesis.“Most of the significant provisions regarding labor issues were provided in the 1982Constitution.”127As the fundamental law of our country, the Constitution is the basis for makingother laws. “Article 42 provides that “Citizens of the People's Republic of China have the rightas well as the duty to work.”128 This article shows that labor rights are not only the rights of theChinese people but also the obligations of the Chinese people to the country and society. Everycitizen who has the ability to work has an equal right, and duty, to work. As long as citizens havethe ability to work, regardless of gender, ethnicity, and property status, they have the right toparticipate in labor and receive labor compensation, the right to choose occupations andemployers that meet their characteristics. The right to work is related to the security of citizens’lives and the exertion of workers’ personal abilities. It is also a significant issue for social andeconomic development and social stability.The Constitution also guarantees the rights of women explicitly. For example, Article 48 ofthe Constitution clearly states that “Women of the People's Republic of China enjoy equal rightswith men in political, economic, cultural, social and family life. The state protects the rights andinterests of women, applies the principle of equal pay for equal work for men and women alikeand trains and selects cadres from among women.”129However, the legal provisions on gender equality are general in nature under theConstitution, given its purpose and function within the legal system. The principal regulations donot provide a basis for specific implementation, such as in the context of employmentdiscrimination. “These principles still need to be extended and implemented in practice byspecific department laws or other forms of regulations.”130 For instance, Article 42 states theprinciple of equality: “Citizens of the People's Republic of China have the right as well as the127 Susan Tiefenbrun, “China’s Employment Laws and Their Impact on Women Working in China” (2017) 23:2 UCD J Intl L Pol’y 253 at 253.128 CPRC, supra note 88 at 46.129 Ibid at 46.130 Tiefenbrun, supra note 127 at 253.48duty to work.”131 However, the principle is generally used to provide guidance to other specificlaws and regulations. In practice, constitutional provisions cannot be directly invoked as a basisfor adjudication, so it can be argued that such a principle requires more detailed and specific lawsto complement it. Moreover, the effect of such a principle is limited in practice.The provisions of the Chinese Constitution on the equal rights of men and women are amanifestation of formal equality (or liberal) feminism. “Formal equality posits that men andwomen should be treated the same in all aspects of life, including in respect of access toemployment and conditions of employment.”132 Formal equality feminism, as a branch of formalequality theory, focuses on providing equal entitlement to rights and benefits under law,regardless of sex, as a means to achieve this equality. It further focuses on equal treatment underthe law, regardless of sex. As a foundational law in China, the Constitution clearly requires thatmen and women have equal treatment in the workplace. “However, as critics of formal equalityfeminism argue, true equality requires a consideration of the gender differences between men andwomen in order to achieve women's emancipation.”133As such, the promotion of formal equalityunder the Constitution does not translate to substantive equality for women in practice. TheConstitution does not adopt certain appropriate, reasonable, and necessary measures to deal withthe de facto differences between women and men in economic, social, and cultural aspects inaccordance with specific situations and actual needs. Rather, specific laws are needed to achievethis goal.3.1.2. Women's Rights Protection LawThe Law on the Protection of Women's Rights and Interests is a special law that explicitlyprotects women's rights and interests. It has more comprehensive rules on gender equity in jobsthan the Constitution does, and its stated aim is to safeguard women's legal rights and advancegender equality. The Law on the Protection of Women's Rights and Interests is China's firstrelevant law which takes women as its primary subject, and comprehensively protects women'srights and interests. This legislation safeguards women's rights and interests by establishing anational policy on gender equity and defining the roles of people's governments at all levels in131 CPRC, supra note 88 at 46.132 Li Wang, “The Double Dimension of Equality: Formal Equality and Substantive Equality” (2011) 2 Theoretical I58 at 58.133 Weiwei Li, “Application and Development of the Principle of Equality in anti-Discrimination Law - Also onAnti-Discrimination Legislation in China” (2009) 27:1 Tribune Pol Sci L 126 at 126.49protecting women's rights and interests. The Federation and local women's federations at alllevels represent and safeguard the interests of women of all nationalities and walks of lifefollowing the law and the Constitution of the All-China Women's Federation.134“The law stipulates that women enjoy the following six rights: political rights, cultural andeducational rights, labor and social security rights, property rights, personal rights, and marriageand family rights.”135 Political privileges provide the freedom of women to handle publicrelations across a variety of platforms and forms; women have equitable voting and electoralrights with men; and the state systematically cultivates and hires female leaders. The All-ChinaWomen's Federation and local women's federations at all levels advocate for women'sparticipation in political decision-making, administration, and oversight of state and social affairs.Cultural and educational rights include: equal rights with men in terms of enrollment, furthereducation, graduation allocation, degree-granting, and study abroad; ensuring that school-agewomen, children, and adolescents receive compulsory education; eliminate illiteracy and semi-literacy among women; organize women to receive vocational education and practical technicaltraining; Women are given the freedom to participate in science, technical, literary, musical, andother forms of culture on an equal footing with males. Labor and social security rights includethe prohibition on discriminating against women in hiring or raising employment standards forwomen on the basis of gender; equal pay for equal work for men and women; equal promotion;special protection through menstruation, pregnancy, childbirth, and lactation; wage equality;protection against dismissal; and equality under the national retirement system.The Law on the Protection of Women’s Rights and Interests has proposed many moredetailed and specific regulations during pregnancy and breastfeeding, special labor protectionand a maternity insurance system. Officially implemented as early as 1992, it has madeprogressive achievements in women's rights and interests protection in 6 major aspects, includingpolitical rights, cultural and educational rights, labor and social security rights, property rights,personal rights, marriage and family rights, encouraged women development and eliminatedvarious discrimination against women. Although this law still needs to be further improved, as aspecial law enacted in China with the protection of women's rights and interests, it is of greatsignificance to women's rights and rights protection in my country.134 LPWRIPRC, supra note 86 at 22.135 Ibid at 22.50The legal definition of equality for men and women may be classified in two ways: One isinstitutional equity, which ensures that men and women are treated equally under the law.Substantive equality is the other. Substantive representation should take a multifaceted approach,recognizing and addressing the distributional, recognition, systemic, and exclusive injusticesfaced by out-groups, rather than focusing only on the right to fair rights, equal opportunity, andequal outcomes. The Law on the Protection of Women’s Rights and Interests advanced a visionof substantive equality in relation to work, It proposes some provisions grounded on specialprotection for women, like the 26th article stipulating that women shall be under special shelterduring their menstruation, pregnancy, maternity and lactation period.136 It building importantlyon the limits of formal equality associated with the more general guarantees under theConstitution.Some feminists support formal equality, such as liberal feminists. They believe that as longas men and women are treated same in law, discrimination in the workplace can be eliminated.They advocated establishing gender-neutral laws. For example, the Constitution states that allpeople should be treated equally and enjoy the same rights. These rules are expressions of formalequality. But with the development of feminist theory, the theory of formal equality has beenquestioned. “Gender-neutral laws ignore the physiological differences between men and womenare in an unfavorable situation in terms of the possession of cultural, economic and politicalresources caused by historical and realistic reasons, causing it to finally hinder the realization ofreal gender equality.”137 Formal equality in such conditions is far from enough, cannot reallyeliminate discrimination in the workplace.Substantive equality sees the difference between men and women. Legislators are expectedto enact legislation and regulations to safeguard women's civil rights that are founded onwomen's real needs and the direction of consequence equity, so order to compensate for theequality women have suffered as a result of their disadvantage. To ensure that women haveequitable development opportunities as men, it is fair and appropriate to have special care andsecurity for women by legislation, which is indeed the only way to achieve gender equality.According to the radical feminist analysis of patriarchy, the cause of gender inequality is the136 LPWRIPRC, supra note 86 at 2 s 26.137 Zhao Ming, “The Enlightenment of Feminist Jurisprudence on Gender Equality to Chinese Legislation” (2009) 3J Chin Women’s Studi 10 at 10.51discriminatory social structure and social relations. The purpose of taking protective measures isto construct substantial equality.138 The Law on the Protection of Women's Rights and Interestsnot only stipulates the same rights and treatment for men and women, such as equal pay for equalwork, but also provides protection for the special rights and interests of female workers, such asthe rights of female workers during pregnancy.3.1.3. Labor Law and Labor Contract LawThe “Labor Law” and “Labor Contract Law” are two laws that specifically address therights and interests of workers. The "Labor Law" and "Labor Contract Law" were drafted inconjunction with the Constitution with the objective of safeguarding workers' legitimate rightsand desires, modifying labor relations, developing and sustaining a labor structure compatiblewith the socialist market economy, and encouraging economic growth and social change. Theyare designed for all Chinese staff. They safeguard all staff, even female workers. While there isno specific chapter on women's labor rights, many have protections for women's labor rights.“The Labor Law, passed in 1994, provides Chinese women with additional laborprotections.”139The labor law is made for the state to adjust the labor relations and the socialrelations. This campaign to eliminate gender-based workplace discrimination was primarilymotivated by foreign pressure on China to recognize the presence of discrimination and enactlaws prohibiting it.140 The Labor Law is a fundamental law in China. It is an essential aspect ofChina's anti-discrimination legislation. It provides provisions for the protection of women's equalemployment rights by prohibiting discrimination in relation to employment opportunities,treatment in the workplace, pay, services, and safety.First, the Labor Law prohibits discrimination in relation to employment opportunities;workers enjoy equal employment. “The provisions of Article 12 establish the basic principles ofanti-employment Discrimination.”141Article 13 further stipulates: “Women shall enjoy the equalright, with men, to employment. With exception of the special types of work or post unsuitable to138 Ibid at 10.139 LLPRC, supra note 106.140 Christine M. Bulger, “Fighting Gender Discrimination in the Chinese Workplace” (2000) 20:1 BC TW L J 345at345.141 LLPRC, supra note 106 at 12.52women as prescribed by the State, no unit may, in employing staff and workers, refuse to employwomen by reason of sex or raise the employment standards for women.”142 This article explicitlyemphasizes the equal rights of men and women. Second, workers' right to obtain equal pay forequal work is guaranteed. “Article 46 and Article 48 stipulate that the distribution of wagesshould follow the principle of distribution according to work, implement equal pay for equalwork, and specify the minimum wage.”143 Third, employment services and employment safetydiscrimination are prohibited, and workers are guaranteed the right to participate in vocationaltraining, sign valid labor contracts, and participate in social insurance. “These are regulated inChapters 8, 3, and 9 of the Labor Law. “144The Labor Law also provides job protection for women in relation to child-bearing andmaternity leave. The Labor Law stipulates (Article 29) that “during the period of maternity,pregnancy and breastfeeding of working women, the employing unit shall not cancel its laborcontract.”145 “In addition, the Law also provides special provisions on the special protection ofwomen and juvenile workers (Article 58).”146The Labor Contract Law also protects the rights of employees by regulating labor contracts.The labor contract law is designed to solve problems that can arise from a lack of knowledge orpower by workers, including women, when negotiating terms and conditions of employment.“The Labor Contract Law adds sanctions for employers who do not create written contracts withtheir employees, do not honor the terms of the contract, or impose excessive probationaryperiods, etc.”147 This law has particular benefits for women, many of whom who work for yearswithout a contract.148 Thus, while this law appears facially neutral in application, it ameliorates aproblem that disproportionately affects women in the workplace in China.Labor law and Labor Contract Law stipulate equal treatment of men and women in theworkplace, and establish formal legal equality. These laws further advance substantive equalityfor women. For example, the special protections extended to working women who are pregnantor breastfeeding ensure that they have equality in employment security and outcome through a142 Ibid at 13.143 Ibid at 46 48.144 Ibid at 8, 3, 9.145 Ibid at 29.146 Ibid at 58.147 Tiefenbrun, supra note127 at 253.148 Ibid at 253.53law designed uniquely for them. Similarly, the Labor Contract Law, while facially neutral, solvesa problem known to acutely affect women in the workplace. These approaches complement theformality equality guarantees under the Constitution by recognizing the different situations ofmen and women in the workplace. This aligns with a cultural feminist approach, whichemphasizes the differences between men and women, including in relation to child birth andcaregiving. As set out in Chapter 3, these differences require specific attention under law toprovide special protection for women and ensure they are not treated unfairly in the workplaceon this basis.In contrast to the general equal rights of the Constitution against discrimination, labor lawand labor contract law have more detailed provisions on equal rights. These laws involves equalemployment rights in the workplace and some special protections for women's labor rights.Although the provisions on anti-gender discrimination in the workplace are not detailed andcomplete enough and not perfect, there is no denying that these two laws are importantexpressions of equal rights of Constitution in the field of labor.3.1.4. Employment Promotion LawThe Employment Promotion Law is an essential law against employment discrimination.Although the primary purpose of the Employment Promotion Law is to help people find jobs, itcontains several provisions prohibiting discrimination in the workplace. Article 3 establishes theprinciple that “laborers shall enjoy equal employment and the right to choose their jobs by law,and employees shall not be discriminated against based on ethnicity, race, gender, religious belief,etc.” A particular chapter is provided to stipulate “fair employment”. Articles 25 and 26 obligatesthe people's governments at all levels to “create a fair employment environment, eliminate jobdiscrimination, and draw up policies and take measures that give support and assistance topeople encountering employment difficulties. Employers shall provide equal employmentopportunity and equal employment conditions to workers and shall not practice employmentdiscrimination.”149 In addition, “Articles 27-31 make special provisions for women, ethnicminorities, persons with disabilities, carriers of infectious disease pathogens, and rural migrantworkers to enjoy equal rights without discrimination.”150Article 27 of the EmploymentPromotion Law stipulates: “The state shall guarantee that women enjoy the same right to work as149 EPLPRC, supra note 107 at 25,26.150 Ibid at 27-31.54do men. Except for the types of work and positions stipulated by the state, hiring units cannotrefuse to hire women or raise the employment standards for women based on their sex. Whenhiring female workers, hiring units are not allowed to set marriage and childbirth restrictions onfemale workers in the labor contract.”151The Employment Promotion Law is a manifestation of substantive equality, focusing onensuring equality for women and other marginalized groups under the law. Doctrinally, it aims toensure equality in practice by specifically prohibiting discrimination against women and othergroups in employment settings, including in relation to hiring practices and conditions ofemployment. Although the Employment Promotion Law includes some provisions aboutdiscrimination against women, it is unlikely to be an effective law to prevent discriminationagainst women. For example, article 3 of the Employment Promotion Law enumerates prohibitedgrounds of discrimination, but does not explain the concept of employment discrimination. TheEmployment Promotion Law does not specify the categories of employment discrimination,burden of proof, punitive measures and so on. It is impossible to rely solely on the employmentpromotion Law to combat gender discrimination in the workplace. It is not a law that trulyaddresses gender discrimination in the workplace. China still needs to establish a systematic,comprehensive and specific law on employment discrimination.“In fact, it is not difficult to find that China's existing equal employment laws andregulations are only a passive strategy to simply respond to various employment problems in theworkplace.”152 When China enacted these laws, it did not realize the importance of workplacediscrimination, nor did it consider these problems and take the initiative to solve them. But associety has developed and gender discrimination in the workplace has become more prominent,these laws have failed. “This is also a microcosm of the immature equal employment right inChina, which shows that the cause of equal employment right in China still has a long way togo.”153The above description and analysis of the legal framework in China establishes a focus onformal equality, but with some attention paid to substantive equality and particular needs of151 Ibid at 27.152 Xiong Li & Jun Liu, “The Dilemma of Equal Employment in Employment Promotion Law”, (2010) 25:2 J HenanU Econ L 1 at 37.153 Ibid at 37.55women in the workplace. Although the majority of legislation explicitly state that men andwomen are equivalent, the Rule on the Protection of Women's Rights and Interests takes intoconsideration the distinctions between men and women and creates laws that are based onwomen.Working in concert, the formal guarantee of equality under the Constitution iscomplemented by specific women’s rights, as well as specific rules governing labor andemployment contexts. However, as the next section will examine, further challenges exist in theoperation and enforcement of those laws in practice.3.2. Challenges in the Operation and Enforcement of Laws Addressing Gender Equalityand Discrimination in the WorkplaceTo assist readers unfamiliar with China's judicial system in comprehending the following, Iwould like to begin by providing a quick overview of the preceding system and itsimplementation. China's judiciary structure is made up of national judicial institutions (courts),national prosecutorial organs (procuratorates), and administrative organs that perform bothadministrative and judicial roles (public security organs, national security organs and judicialadministrative organs). China regards the people's court as the highest judicial entity of the world.The People's Republic of China has established a Supreme People's Court, as well as localpeople's courts at all levels (with three levels: basic people's courts, intermediate people's courts,and senior people's courts), as well as military courts.In a collegiate system, people's courts adjudicate cases. Cases before people's courts can bedecided by a collegial panel of judges or by a collegial panel of judges and people's jurors;common civil cases, minor criminal cases, and cases expressly specified by law may beprosecuted by a single judge. Due to the fact that hearings are conducted in people's courts, thetwo-trial-for-final law applies. Concerning first-instance rulings and orders issued by localpeople's courts, parties can appeal to the next higher level people's court in compliance withlegislative procedures, and people's procuratorates can file a lawsuit against the people's court inaccordance with procedural procedures.In China, the procuratorate acts as a national legal oversight body, created by the People'sCongress, and accountable to and reporting to the People's Congress. Parallel to the People'sJudiciary and the People's Government, the procuratorate is collectively referred to as "the56People's Government, the People's Court, and the People's Procuratorate," with its dutiesincluding monitoring and accepting arrests, agreeing to sue, and appearing in court in support ofcriminal prosecution. China has founded special people's procuratorates at various stages,including the Supreme People's Procuratorate, local people's procuratorates, and militaryprocuratorates. Judicial administration, in the broadest sense, includes administrative rolesperformed by civil security organs, national security organs, judiciary administrative institutions,and organizations such as prisons, labor instruction, notarization, judges, and mediation.To include a more detailed explanation of why China becomes stuck in the operation andexecution of legislation concerning gender equity and workplace discrimination, I would firstoutline channels that may assist individuals in protecting their rights and resolving issues thatarise through compliance as they believe they have been subjected to workplace discrimination.If someone feels discriminated in their work, the following ways apply in China. First ofall, you may choose communication with corporate management, or complaining to the humanresource management department. If no reasonable feedback arrives you, you can resort tolitigation channels. Presently in China, there are no special provisions for discrimination cases inthe workplace which are treated as ordinary labor cases instead of a kind of discrimination casesalone. According to China’s laws, labor arbitration must be carried out first concerning withlabor cases, rather than direct litigation. The Regulations on Settlement of Labor Disputes inEnterprises (1993)154 and the Labor Law of the People's Republic of China (1994)155 requireparties to submit to labor arbitration before they can file a lawsuit with the people’s court forwork-related disputes, including employment discrimination. However, there are no specific lawsand regulations for Chinese courts to handle discrimination cases. There are still many problemsto be solved in order to successfully protect rights through litigation.First, there is a lack of clear assignment of responsibility within organizations. Asmentioned above, various laws seem to rely on and assign responsibility to a correspondingcompetent authority. The words “relevant competent authority” and “superior authority” are veryambiguous. This often means that victims do not know who to ask for help. The most directconsequence of not having clear law enforcement is mutual evasion of responsibility betweenagencies, with the result that all departments treat employment discrimination passively. This can154 Regulations on Settlement of Labor Disputes in Enterprises, NPC 1993, [RSLDE].155 LLPRC, supra note 106.57create not only a sense of confusion, but of distrust and helplessness for individuals who seekassistance.Second, existing governmental agencies or departments either lack legal authority, or lackclear direction to address employment discrimination in their work. “Article 53 of the Law on theProtection of Women's Rights and Interests stipulates that the specialized agency for theprotection of women's rights is the Women's Federation.”156 However, its legal status is that of apublic welfare social organization. It can only play an auxiliary role and has no ability to executethe law. “Article 85 of the Labor Law clarifies the supervisory responsibilities of the laboradministrative department, including the internal rules and regulations formulated by thecompany, contract conclusion and social insurance payment, and does not include employmentdiscrimination.”157 The role of the labor inspection department in protecting women's rights andaddressing employment discrimination has not been implemented, and the supervision is notstrong enough.Along with the questions addressed in the preceding segment about the legislative systemaddressing occupational gender inequality, there are a number of concerns about the operationand feasibility of these laws in reality. To begin, the absence of a precise description ofworkplace discrimination and an appreciation of the different types of discrimination, such asdirect versus indirect discrimination, impedes attempts to avoid discrimination on the field.Second, current statutes do not explicitly define remedies or disciplinary measures againstcontractors that discriminate against employees. As a consequence, there is no deterrence, andworkers are free to disregard or violate the statute. Third, since prejudice may be relatively subtleand often depends on witness statements, it can be challenging for staff to assemble adequatefacts to assess whether discrimination has happened. This necessitates a debate on whether thelevel of evidence or duty of proof can be altered in prejudice situations. Finally, and even mostsignificantly, China lacks a professional or devoted law enforcement or supervisory authority tocounter workplace discrimination. The decentralization of authority undermines the laws'efficacy in securing women at work. This segment delves into and analyses each of theseorganizational issues, highlighting major deficiencies in China's response to workplace genderdiscrimination.156 LPWRIPRC, supra note 86 at 53.157 LLPRC, supra note 106 at 85.583.2.1. Lack of Definition of “Discrimination”The current provisions on employment discrimination laws are too general. As the previoussection outlined, the Constitution and other laws and regulations stipulate equal rights for menand women, including labor rights, rest and leave, labor protections, and the right to participatein labor insurance. The Employment Promotion Law further prohibits discrimination inemployment, including in relation to hiring and conditions of work. However, such generalprovisions are too vague, resulting in weak application in practice.Because there is no clear definition of discrimination in law, only the most obvious anddirect forms of discrimination may be readily understood as such. “Discrimination includes bothdirect discrimination when an employer directly proposes “male only” when hiring and indirectdiscrimination when screening female applicants.”158 Discrimination has emotional factors, andemployers mostly use indirect discrimination, which is more covert and challenging to detect.China has not articulated a definition of discrimination, nor has it distinguished between directand indirect discrimination. This limits the ability of employers to effectively regulate workplacebehavior, and the ability of women employees to seek legal remedy when they have beendiscriminated against.The current laws in China appear only to prohibit direct discrimination. The lack ofexplicit attention given to indirect discrimination, in particular, creates a significant loophole inavailable legal protections. Companies who discriminate against women in recruitment directlywill be investigated by the labor inspection department. Therefore, companies often only collectresumes during recruitment, and simply do not contact female job candidates for interviews, orcontrol internal processes to limit hiring of women. Companies may transfer pregnant women topoor job positions or to create conditions in which they will resign from their post. These areeach forms of indirect discrimination that are difficult to prove and punish under the current lawsin China. Companies use these gaps to eliminate female job seekers and employees whileavoiding accusations of discrimination.Article 27 of the Employment Promotion Law states: “The state guarantees that womenenjoy equal labor rights with men. Employers shall not refuse to recruit women except for jobs or158 Fei Li, Study on the Legal Protection of Women’s Employment Under the Universal Two-Child Policy (Masterthesis, Shijiazhuan: Hebei University) at 396.59positions that are not suitable for women as stipulated by the state. They shall not refuse to hirewomen or raise the employment standards for women on the grounds of sex. Employersemploying female employees shall not stipulate in the labor contract the content restrictingfemale employees from getting married or giving birth.”159 This Law prohibits discriminationagainst women in employment, but approaches the issue from a formal equality standpoint, as Idiscussed earlier. It is commonly understood as prohibiting direct employment, however, as Idetailed above, many instances of discrimination are indirect in nature.Article 13 of the Labor Law stipulates: “Women enjoy equal employment rights with men.When hiring employees, employer may not refuse to hire women or rise standards because oftheir gender, except for types of jobs that are not suitable for women.”160 However, the law doesnot specify what is not suitable for women. Due to the lack of law, companies can make full useof the loopholes in the law to make discrimination “legal”. For example, as discussed in Chapter2, job advertisements may include specific requirements that will implicitly exclude women fromcandidacy. Moreover, as outlined above, companies may use other tactics to eliminate womenjob seekers during the recruitment process.Articles 12 and 13 of the Labor Law161 and Article 27 of the Law on the Protection ofWomen's Rights and Interests162 have designed equal employment for men and women, equalpay for equal work, occupational safety, development rights, and social security rights. However,these regulations are high level principles; they lack specificity. Because of the lack of specificlegal provisions and implementation procedures, there are no specific legal provisions todetermine the standard for establishing equality or compliance with the law. This lack ofspecificity contributes to the limited understanding of discrimination as this section hasillustrated. Further, because of the lack of definition, it is difficult for judges to judge when asituation constitutes gender discrimination in the workplace. This weakens the effectiveness ofthe law, and means that many instances of discrimination likely go unrecognized.3.2.2. Lack of Legal Consequences and Deterrent Effect of Discrimination LawsThe current laws in China do not clearly set out consequences that employers will face if159 EPLPRC, supra note 107 at 27.160 LLPRC, supra note 106 at 13.161 Ibid at 12,13 .162 LPWRIPRC, supra note 86 at 27.60they engage in discrimination in the workplace, nor do they set out sufficient remedies availableto women who have been discriminated against.The first problem is that the assignment of legal responsibility is not clear. For example,Article 57 of the Law on the Protection of Women’s Rights and Interests stipulates: “Anyonewho evades, delays or suppresses the investigation and disposition of a victim woman's charge,complaint, exposure, or retaliates against a person making a complaint, a charge or an exposureregarding an infringement upon a woman's rights and interests, shall be ordered to makecorrections by his or her unit or by an organ at a higher level, and the person who is held directlyresponsible or other responsible persons may, in light of the specific circumstances, be subjectedto administrative sanctions.”163 However, in practice, there is often no corresponding governmentbody to oversee this or order corrections within the organization. As a result, many complaintsare simply unaddressed at this stage.Second, the corresponding liability provisions are not clear, and therefore create a relatedthe lack of corresponding legal liability for some infringements. For example, if there is anincident of employment discrimination, the law only requires the superior competent departmentto ask the company to make corrections (as set out in the previous paragraph), which has nodeterrent effect. “Chapter VIII of the Employment Promotion Law stipulates that the laboradministration and professional intermediaries shall bear legal responsibility for some illegalacts.”164 Unfortunately, no specific punishment measures are taken after a violation. The cost tothe employer is very low.The determination of legal responsibility is the foundation of judicial relief foremployment discrimination. Only when the legal responsibility is clear, the law can be betterimplemented in judicial practice. The lack of clear assignment of legal responsibility andaccountability for it, as demonstrated in the previous two paragraphs, hampers the effectivenessof anti-discrimination laws on the ground.Moreover, the lack of clear legal consequences and remedies further limits theeffectiveness of the law by creating a minimal deterrent effect. First, liability is primarily locatedin the administrative, rather than civil, arena. An employer may be obligated to provide163 Ibid at 57.164 EPLPRC, supra note 107 at 8.61compensation where they have been found to have discriminated against an employer, but thereare significant ambiguities in the calculation of a compensatory award, including the overallquantum of the award, and the ratio and quantum of punitive versus compensatory allowanceswithin the award. In short, no specific legal provisions exist regarding the method and standardfor compensation in instances of discrimination. Because the cost to the employer is uncertain, itis not an effective deterrent against discrimination.Third, the current legal framework is unclear regarding the burden and standard of proof,which exacerbates evidentiary challenges that arise in the context of discrimination. Due to thesubjectivity of discrimination and the concealment of employers' discriminatory behavior,Female workers also find it daunting to testify on their experiences of gender inequality. Withoutjudicial support, labor inspection agencies and courts had difficulty enforcing and supervisingprosecutions. In brief, the litigation mechanism and the necessary evidence of a causal linkbetween racist conduct and harm to rights and interests obstruct attempts to comprehensively andadequately recognize and remedy cases of discrimination on the field. As a result, employmentdiscrimination is becoming more common in practice. When employers perceive that they willnot bear legal responsibility for their conduct, they may act with impunity, increasing theprevalence of gender discrimination. Further, as the previous chapter discussed, there are reasonsto be concerned that the two-child policy will result in further discrimination, compoundingexisting challenges in practice.3.2.3. Lack of Specialized Law Enforcement or Supervisory BodyFinally, the effectiveness of the law in operation is limited because of a lack of specializedlaw enforcement or supervisory body to oversee its administration and implementation on theground.The lack of clear assignment of responsibility and legal authority, both within governmentand within organizations, is compounded where discrimination occurs within government as theemployment setting. “Some discrimination comes from certain departments of the government,such as various kinds of discrimination in civil service examinations. The “relevant departments”and “superior institutions” provided for in the current law are all subordinate to eachgovernment.”165As we know, the most powerful supervision often comes from the outside, and165 Ziji Zhou, Studies of the Legal Protection of the Equality Rights of Employment (Master thesis, Shenyang:62self-supervision from the inside is often unreliable. At present, this model is not feasible. It istherefore necessary to set up a specialized law enforcement agency to regulate and addressgender discrimination in the workplace.3.3. Challenges in the Legal System and Access to Dispute Resolution in Instances ofGender discrimination in EmploymentThe noted issues regarding the scope and application of the laws addressing genderdiscrimination in employment, coupled with issues arising in their operation and effectiveness onthe ground, are further compounded by challenges navigating the dispute resolution processesthat currently apply in China. This section is interpreting and applying the laws as set out above.Currently, the system of dealing with labor disputes caused by discrimination in theworkplace in China is summarized by “one mediation-one adjudication-two trial”, which meansthat after a labor dispute occurs, the parties can apply for labor mediation in addition tonegotiation first. If the mediation fails, or if the parties are not willing to mediate, they can applyto the Labor Dispute Arbitration Committee for arbitration. If the parties are not satisfied withthe arbitration award, they can file a lawsuit in the People’s Court, and the lawsuit procedure isbased on the provisions of the Civil Procedure Law to implement the two-instance system. Whenworkers encounter workplace discrimination, they must first take self-relief measures, such asnegotiations with employers. If they do not want to negotiate, the negotiation fails, or thesettlement agreement is not implemented, they may then choose to be hosted by a mediationorganization (one conciliation). If mediation does not resolve the dispute, they can apply forlabor arbitration (one arbitration). Those who are dissatisfied with the result of arbitration mayfile a suit in a people's court with a preserved right of appeal (two deliberations).On the surface, the dispute resolution system provides a variety of remedies, promotesdiversion of cases, and protects the rights and interests of parties through multiple channels. Infact, with increased awareness of employees' rights and interests, labor disputes have increased.However, this has resulted in more complicated and difficult cases emerging, which highlightseveral limitations and issues with this system.This part discusses whether China's current relief procedures for employmentdiscrimination are effective. I focus my analysis on the pre-litigation steps in the disputeNortheastern University, 2010) 26.63resolution process, highlighting existing challenges and issues that make these steps largelyineffective for workers, and inefficient at their primary objective of diverging cases from thecourts and encouraging early resolution of disputes. I discuss the ways in which insufficientindependence and neutrality create issues at both the mediation and arbitration stages. Further, Ianalyze how a lack of coordination between arbitration and litigation creates both procedural andsubstantive access to justice issues, including in relation to time delays and cost. Overall, Iestablish that the compulsory nature of each step in the process creates inefficiencies andineffectiveness for parties in resolving disputes.3.3.1. Mediation and Internal Resolution MeasuresAs mentioned above, if informal internal dialogue does not resolve the issue, a worker mayfirst request mediation to resolve their dispute. However, the mediation mechanism only haslimited practical effects. This is due to a combination of challenges arising from the current rules,and the variables that exist in practical settings. Mediation is a term that applies to the actions ofan impartial third person that acts as a mediator between groups, assists in the exchanging ofideas, proposes alternatives, and encourages the two parties to settle disputes. Mediation, as aninformal method for resolving disputes, is not legally binding.“[The] Law of the PRC on Labor Dispute Mediation and Arbitration authorizes three typesof mediation mechanisms including enterprise mediation committees, township and sub-districtoffice, and grassroots people's mediation.”166 However, these mechanisms only play a limitedrole in resolving disputes, given challenges with their independence and neutrality in practice,and the lack of specific and clear rules governing mediation mechanisms.An enterprise mediation committee is a statutory mediation organization that should be athird-party organization independent from enterprises and laborers. This independence isrequired to ensure that the mediation can occur in a manner that best aligns with its disputeresolution purpose. However, in practice, both labor union members of the mediation committee(who act as a staff representative), and the committee director (a position held by management ofthe enterprise), are paid by the enterprise-employer. Because mediation committee members arepaid by the enterprise, the independence and neutrality of the members is compromised.In addition to concerns regarding independence and neutrality of the mediation166 Labor Dispute Mediation and Arbitration Law of the People’s Republic of China, NPC 2007, [LDMALPRC].64organization membership and composition, mediations are limited in their practical effectbecause there are no specific rules for mediation, meaning that the process and outcomes ofmediations are affected substantially by individual membership, discretion, and expertise. Incontrast to arbitration and court processes, mediations have no specific procedural andsubstantive rules in China at present. This often means that how a mediation unfolds is highlydependent on the individual understanding, perspective and approach of the person in charge.Accordingly, immoderate discretionary power effects the fairness, predictability, and consistencyof mediation. The impact that discretionary power can have on the process and outcome ofmediation is further compounded by the fact that most members of the mediation organizationsdo not have specific professional experience or knowledge about mediation or dispute resolution.This lack of expertise affects the ability for mediation committee members to engage in their roleeffectively. This further leads to distrust and dissatisfaction by parties to a mediation, increasingthe likelihood that they will seek to use arbitration and litigation processes at the next stages ofthe dispute resolution system.3.3.2. LaborArbitrationIf parties are not satisfied with the process and outcome of mediation, they will be requiredto submit to labor arbitration. The arbitration committee for labor disputes adjudicates andarbitrate the labor disputes applied for arbitration by the parties. In China, labor arbitration is amandatory procedure for parties of labor disputes to undertake before they can file a lawsuit tothe people’s court. “It is stipulated in Law of the PRC on Labor Dispute Mediation andArbitration that the party initiating labor arbitration shall submit a written application to the labordispute arbitration committee within one year from the date of the labor dispute. The arbitrationcommittee shall not accept the application for arbitration exceeding the limitation prescribed bylaw, unless due to force majeure or other legitimate reasons.”167The labor arbitration mechanism currently creates several challenges for resolvingemployment discrimination disputes. First, like mediation mechanisms, it raises concernsregarding adjudicator independence. Second, the lack of finality and authority of arbitrationdecisions limits its effectiveness in practice. Third, the lack of coordination between laborarbitration and litigation mechanisms creates and compounds challenges regarding time and cost167 Ibid at .65by producing redundancies in the overall dispute resolution system.Like the above-mentioned mediation, labor arbitration suffers from insufficientindependence. “It has been clearly stipulated in Article 81 of the Labor Law of the People'sRepublic of China that a labor dispute arbitration committee shall be composed of three partiesincluding representatives of the labor administration department, representatives of the laborunion as well as the employer, and the committee directorship shall be held by the representativeof the labor administration department.”168 In terms of personnel composition, labor arbitrationcommittees lack independence and neutrality, similarly to that described in relation to themediation mechanism in the previous section.Unlike other civil and commercial arbitration institutions, labor arbitration institutions arenot independent. Consent of the relevant local government is required to establish a laborarbitration institution, and it operates under the guidance of the labor administration department.“Different from civil and commercial arbitration institutions, which are established afterregistering in the judicial administration institutions and have independent location and funds,labor arbitration committees have no independent location and their office is located in the laboradministration department. In terms of the fund sources, labor arbitration committees obtainfunds from labor administration department.”169 “In conclusion, the labor arbitration committeewill inevitably be subject to the local government faced with the complicated and changeablelabor disputes, and taking the local economic, political and cultural policies as the weathervaneof labor arbitration, labor arbitration is bound to escort the development of local economy.”170Asa result, the influence of local government and community concerns mean that labor arbitrationis more likely to protect the interests of enterprises, causing laborers to be in an unfavorableposition.In addition, the lack of finality and weak enforceability of labor arbitration decisions limitsthe effectiveness of this mechanism on the ground. “The mandatory provision on front arbitrationmakes the party lose their freedom of choice. The non-governmental arbitration institution andthe flexibility of the procedures make the enforceability and authority of arbitration obviously168 LLPRC, supra note 106 at 81.169Yishu Shu, “The Connection of Labor Arbitration Procedure and Litigation Procedure- From the Perspective ofEfficient Allocation of Litigation Resources” (2015) 27:1 J Shandong Police C 57 at 57.170 Ibid at 57.66not as good as the judicial proceedings.”171 In addition, arbitration results typically require theassistance of the judicial departments in enforcement. This can, again, cause dissatisfaction forworkers involved in the process. As with the ways in which concerns regarding independenceand neutrality can influence parties’ decisions to proceed to the next stage of dispute resolution,so too does the lack of enforceability of arbitration decisions. In other words, this characteristicof labor arbitration results in fewer cases where the dispute is resolved at this stage. Rather,parties are more likely to proceed with litigation, or abandon their complaints early in the processdue to the perceived issues and inefficiencies. This further impacts the efficiency and efficacy ofthese stages of the dispute resolution system. In addition, the transfer of many cases ultimately tothe courts creates greater drain and pressure on the resources within that system.3.3.3. The Lack of Coordination between Arbitration and Litigation ProcessesThe Regulations on Settlement of Labor Disputes in Enterprises (1993)172 and the LaborLaw of the People's Republic of China (1994)173 require parties to submit to labor arbitrationbefore they can file a lawsuit with the people’s court for work-related disputes, includingemployment discrimination. This requirement creates additional challenges and issues for partiesinvolved. First, the mandatory steps create time delays and additional costs in resolving disputes,particularly in light of the inefficient and ineffective nature of the pre-litigation processes as setout above. Second, this requirement creates redundancies in the system given the lack ofcoordination between the arbitration and litigation mechanisms. This lack of coordination arisesin relation to differences in jurisdictional boundaries between the two mechanisms, evidence, andlimitation periods and procedures.This labor dispute settlement mechanism has many drawbacks, one of them is longprocessing period and high cost of workers' rights protection. “The general arbitration limitationfor labor arbitration is 60 days.”174 However, arbitrations typically take several months to resolve,“generally 6 months for the first instance, and 3 months for the second instance.175 In addition,there are further issues regarding time and cost relating to preparation time for time, time for171 Genjie Xu, Research on legal Issues of Female Employment Discrimination under the universal two-child Policy(Master thesis, Chongqing: Southwest University of Political Science & Law, 2018) 37.172 RSLDE, supra note 155 .173 LLPRC, supra note 106 .174 LDMALPRC, supra note 167.175 Lingling Hou, “The Reflection and Reform of the Labor Dispute Final Adjudication System” (2017) 34:3 Stud LBus 160 at 160.67accepting, hearing and examination or complaints, delivery and transit time for legal documents,certification time, delays due to closure for holidays and festivals, prolonged time for pendingcases within time limit, execution time and more.176 This means that labor dispute cases areactually handled for a long time and are inefficient, which will greatly increase the time cost. Itmay take a long time to get results even if the money awarded is small. Due to suchconsiderations, people may be reluctant to choose judicial relief. For example, if a workerinitiates an arbitration to request the employer to pay one month's wages in arrears, it will takethe laborer more than one year to have an effective judgment if the employer goes through onearbitration and two trials, excluding the time for execution of the judgment.177 During this period,if the employer goes bankrupt, or transfers property, it may affect the execution of the judgment.In addition, the costs to undertake such processes are very high and the remedies awarded maybe very low. Further, this system is seen by some as a waste of judicial resources. All of thiscombines to create circumstances in which workers choose not to seek judicial relief when theyare discriminated against.Second, a lack of coordination between arbitration and litigation mechanisms producesaccess to justice issues for workers. This lack of coordination can result, in part, from adifference in jurisdictional boundaries between the two mechanisms. “According to Article 21 ofLaw of the PRC on Labor Dispute Mediation and Arbitration, labor dispute cases shall be underthe jurisdiction of the arbitration institution in the place where the labor contract is performed orwhere the employer is located.”178 “Rules for Labor Dispute Arbitration further stipulate that “theplace where the employer is located is the place where the employer is registered.”179 There is nolabor procedure Law in China, therefore, Civil Procedure Law is applicable to labor litigation.According to the provisions of General Principles of The Civil Law180 and Civil ProcedureLaw,181 the place where the employer is located should be thought to be the main place ofbusiness or the place where the main administrative office is located. This may be different thanthe “location of the employer” as defined under the “Rules for Labor Dispute Arbitration”182 that176 Ibid at 37.177 Ibid at 37.178 LDMALPRC, supra note 167 at 21.179 Rules for Labor Dispute Arbitration, NPC 2017, [RLDA].180 The Civil Law of the People’s Republic of China, NPC 2020.181 The Civil Procedure Law of the People’s Republic of China, NPC 2017, [CPLPRC].182 RLDA, supra note 180.68it is the place where the employer is registered. This means that cases moving from laborarbitration to litigation in court may first have to transfer territorial jurisdiction, creating a furtherobstacle for workers in the dispute resolution process.In addition to jurisdictional issues, a lack of coordination impacts the evidentiaryprocedures and creates redundancies in this regard. In the mode of “one arbitration and twotrials”, there is a disconnection in the authenticating of facts between labor arbitration andlitigation. If a side declines to recognize the labor arbitration agreement and brings a case in theappropriate people's court, the labor arbitration award becomes null and void. As the arbitrationaward has no legal effect, the evidence that has ever been presented in arbitration cannot bedirectly accepted as the basis of judgment in litigation.183As a result, the evidence submitted inlabor arbitration is separated from that submitted in the phase of litigation. This means thatevidence must be freshly tendered, resulting in administrative redundancies. Further, it can leadto different authentication of facts and factual findings from the evidence. “In theory, what laborarbitration and litigation are aimed at are the same facts of the case that have already occurred,however, they can only be inferred by evidence instead of recurring, which causes uncertainty tothe authenticating of facts.”184 This potential disparity in factual findings and authenticationaffects the credibility and fairness of the overall system.Finally, a lack of coordination creates further issues between arbitration and litigationsystems in respect of limitation periods. It is clearly stipulated in the Law of the PRC on LaborDispute Mediation and Arbitration that the limitation of labor arbitration is one year.185As aresult, “without any force majeure or other justifiable reasons, if the laborer applies to the laborarbitration committee for arbitration one year after the date when they know or should know thattheir rights are infringed, the arbitration committee shall not accept the application.As there are no special provisions on the limitation of labor actions in civil law (lawsuits),“the limitation of labor action in China shall refer to the provision of 3 years of limitation of civilprocedure.”186 In other words, there is a two-year limitation period for civil suits related to labor183 Liwu Cheng, “The Connection and Transformation of Non-Lawsuit and Lawsuit in Labor Dispute SettlementProcedure” (2015) 1 JLA 67 at 67.184 Weidong Ju, “The Significance of Legal Procedure: Another Reflection on China’s Legal System Construction”(2009) 1 Soc Sci Chin 83 at 83.185 RLDA, supra note 180 at 188 .186 CPLPRC, supra note 182.69disputes. This longer limitation period facilitates the use of lawsuits after arbitration assumingthat a worker engages the full dispute resolution system and steps in a timely manner.However, if a worker files a lawsuit to a people's court without having first engaged inlabor arbitration, and the people's court finds upon examination that it has already exceeded thelimitation period for arbitration (one year), without justification, the people's court will dismissthe suit 187 This means that once the laborers lose the relief of labor arbitration, they will alsolose the right of action, as a result, the flaws in legislation will bring serious damage to the rightsof the laborers. In addition, cases of discrimination may give rise to special concerns regardinglimitation periods due to the delay that may occur between the instance of discrimination, and theworker’s discovery or realization of it. This means that the challenges noted above may acutelyimpact women who experience discrimination in the workplace.3.4. ConclusionWithout adequate means of redress, it is impossible to guarantee the realization ofcitizenship. Judicial relief is the last line of support for female employees' privileges and interests.When female employees' rights and interests are violated, they have the ability to seek legalredress and protect their own rights and interests. However, as this chapter has detailed, thecurrent labor dispute settlement procedure in China takes a long time and is relatively complex.It creates many hurdles for women to make a successful complaint of discrimination and have itadequately remedied.The challenges associated with mediation and arbitration are particularly worrisome inlight of the cultural context in China. “In traditional Chinese culture, people think that litigationis disgraceful. When people encounter disputes, they are not willing to choose to settle throughlitigation.”188 “It is not a likely scenario that someone will be willing to seek a court order to askto be hired.”189 In such a social context, if the law cannot effectively protect the victims throughprevention and proactive enforcement, and neither through dispute resolution outside of courts,people will be reluctant to rely on the law to solve their problems. Therefore, “If China adopts anindividual anti-discrimination law, effective remedies will have to be one of the most important187 Fan Yueru, “Research on Labor Dispute Adjudication Institutions” (2007) 2 TJ 114 at 114.188 Lu, supra note 110 at 133.189 Ibid at 133.70components.”190Issues regarding access to justice through the existing legal procedures are compounded bya lack of clarity in defining employment discrimination and in defining employers’ obligations inrespect of discrimination in the workplace. Having analyzed the multi-faceted challengesattending China’s current legal framework, procedures, and dispute resolution mechanisms, inaddressing gender discrimination in the workplace, the next chapter will engage in a comparativeanalysis of anti-discrimination law and dispute resolution processes in Canada, with a view toidentifying best practices and recommendations to improve the system in China.190 Ibid at 133.71Chapter 4: Canada’s Approach to Addressing Gender discrimination in the WorkplaceDiscrimination against women in employment is a general problem, and governments ofall countries have implemented various legal measures to safeguard women's employment. Thecurrent status of China’s laws related to anti-discrimination in employment were analyzed inChapters 2 and 3. Those chapters analyzed the manifestations and causes of discrimination in theworkplace in China, and determined that there are many gaps and imperfections in China's lawsagainst workplace discrimination. Key findings include that there is no clear definition ofworkplace discrimination, including in relation to indirect discrimination, no clear process orevidentiary standard to establish discrimination in the workplace through legal vehicles, and nosupporting enforcement agencies, amongst others.This chapter engages in a comparative analysis of Canada’s anti-discrimination laws, witha view to identifying lessons that China can learn from the Canadian model to remedy theidentified deficiencies of its current anti-discrimination system, as outlined in the previouschapters. In order to identify and explain recommendations for reform to China’s laws onworkplace discrimination, this chapter takes up an examination of Canada's laws ondiscrimination in the workplace, especially in relation to pregnancy and family status. Accordingto the World Economic Forum's annual Global Gender Gap Index, Canada was ranked 16th outof 149 countries in 2018 based on the gender gap between women and men in health, education,economy, and politics.191This chapter is divided into five main sections. In the first section, I review the historicalbackground and establishment of Canada’s anti-discrimination laws, including how women’smovements influenced the development of anti-discrimination laws, and the legislative processthat led to their enactment. In the second section, I present an overview of Canada’s anti-discrimination laws. I draw on a few representative and influential Canadian statutes to illustratenot only general anti-discrimination laws but also specific laws against workplace discriminationand for the promotion of equality in the workplace. First, I discuss how the Canadian Charter of191 World Economic Forum, The Global Gender Gap Report (Geneva: World Economic Forum, 2018) at 26.72Rights and Freedoms192 provides a foundation of equality rights. Second, I discuss the CanadianHuman Rights Act193 and Canadian Human Rights Commission, and how cases of workplacediscrimination are dealt with under these systems. Third, I examine the Ontario Human RightsCode, Ontario Human Rights Tribunal and the Ontario Human Rights Commission and how theywork together, and as a provincial counterpart to the federal Act and Commission. Fourth, Ireview the federal Pay Equity Act194 and Employment Equity Act195, which are specificallydesigned to address workplace discrimination.In the third section, I discuss the discrimination complaints process in Canada. I examinepregnancy as a prohibited ground of discrimination in employment, how to initiate a legalcomplaint for pregnancy-related discrimination at work, and legal principles governingdiscrimination complaints in Canada. I explain the protections for pregnant women at work inCanada and how discrimination based on pregnancy is determined. In addition, I explore howemployees can seek legal protection and litigate when they feel they have been discriminatedagainst, the functions of the Human Rights Tribunal and Human Rights Commission, and thecriteria for establishing prima facie discrimination complaints, and available justifications,especially the bona fide occupational requirement justification, that an employer may put forth toexcuse their conduct.In the fourth section, I review different forms of discrimination in Canada: direct, indirect,and systemic discrimination. I define these three types of discrimination and illustrate how theyare prohibited by law in Canada.Finally, in the fifth section, I discuss the role of institutional actors such as human rightstribunals and commissions in Canada. This section corresponds to the previously mentioned lackof specialized enforcement agencies in China, and I have selected representative examples ofhow different Canadian administrative bodies enforce anti-discrimination legislation. I focus onthe Pay Equity Commission and the Human Rights Commission in Ontario to introduce thenature, process, and functions of these institutions respectively.192 Constitution Act, 1982.193 Canadian Human Rights Act, RSC 1985.194 Pay Equity Act, SC 2018.195 Employment Equity Act, SC 1995.734.1. Brief History of Canadian Human Rights LawCompared with many other countries in the world, Canada has an advanced human rightsprotection system. This developed from a series of social transformations throughout Canada’s20th century history. Women in Canada were disadvantaged and did not have equal social or legalstatus as men, including in relation to employment. As a result, most women in Canadaexperienced socio-economic dependency and had limited employment and income opportunitieshistorically.196 However, history establishes that Canadian women protested againstdiscrimination they suffered, resulting in a series of legal changes to advance their equality. Forexample, the Edwards decision made by the Judicial Committee of the Privy Council of theUnited Kingdom in 1930 became a watershed moment, which determined that the meaning ofthe term “person” includes women.197 It was no longer possible for the Canadian government torefuse to appoint women as members of the Senate of Canada because of their gender, becausethey are “persons” like men. It should be noted be that this case is an early important example foradvocating women rights but the real movement started later.The legislative and judicial history addressing gender discrimination in employment inCanada unfolds in three periods. First, before World War II, federal and provincial laws paid verylittle attention to discrimination in employment against women, with few prohibitive clauses.198Second, in the 1940s and 1950s, various provinces of Canada began to formulate employmentequity statutes; accordingly, protective clauses related to women’s employment graduallyappeared.199 In Ontario, the Jewish Labor Committee and the Association for Civil Libertiessuccessfully rallied scores of groups to advocate for anti-discrimination laws.200 Their actionspaid off in 1951, when Leslie Frost's Conservative government enacted the country's first FairWork Practices Act and, in 1954, the Fair Accommodation Practices Act—basically prohibiting196 Mary Eberts & Anne F Bayefsky, “Sex-based Discrimination and the Charter” in Anne F Bayefsky & Mary AEberts, eds, Equal Rights Chart Rights Freedom (Toronto: Carswell, 1985) 183.197 Edwards v A.G. Canada, [1930] AC 124 (PC) reversing the Supreme Court of Canada in In the Matter ofReference as to the Meaning of the Word “Persons” in Section 24 of the British North American Act, 1867, [1928]SCR 276.198 Chuang Ai Jin, Research on the Issues of Contemporary Chinese Women’s Employment (PhD thesis, NortheastNormal University, 2012) 26.199 Ibid at 26.200 Dominique Clément, William Andrew Silver and Daniel Trottier, The evolution of human rights in Canada(Ottawa: Canadian Human Rights Commission, 2012) c 4.74cultural, national, and religious segregation in employment and housing (the government alsopassed, in 1951, a Female Employees Fair Remuneration Act).201 In 1956, Equal Pay for EqualWork law is adopted in Manitoba, preventing discrimination in salary based on gender.202 In theearly 1950s, Canadian provincial legislatures and the federal government began to realize that itwas necessary to enact comprehensive legislation prohibiting discrimination. However, it wasnot until the 1960s that unified protection for women’s employment was established, Third, fromthe 1960s to 1970s, the Human Rights Code represented a new approach to conceptualisingdiscrimination.203 Human Rights laws were noted that prejudice could be unspoken andsystemic.204 In this way, the Human Rights Code of Ontario addressed both substantive andformal equality.205 However, the Ontario legislation did not even ban sex discrimination.206 Sincethe 1980s, the Canada Human Rights Act, which is mainly targeted at discrimination, hasbecome more inclusive, like its provincial counterparts, constructing an anti-discriminationsystem to protect various grounds, including race, nationality, religion, age, gender, sexualorientation, marital status, family status, disability and pardoned crimes.207 In addition, thefederal government passed the Pay Equity Act and other laws in order to further safeguardwomen's employment.4.2. Canada’s Legal Framework on Sex Discrimination in Employment: An OverviewCanada has a relatively complete legal system to address anti-discrimination in theworkplace. Human rights are also legally protected in Canada by a dual mechanism of civilentitlements and federal and regional legislative human rights codes. There are laws specificallyagainst discrimination, such as human rights laws, and laws specifically aimed at equalprotection in the workplace, such as the Pay Equity Act. This section analyses relevant laws thatcomprise Canada’s legal framework to address sex discrimination in employment, including as201 The Fair Employment Practices Act, SO 1951, c 24; The Fair Accommodation Practice Act, SO 1954, c 28; TheFemale Employees Fair Remuneration Act, SO 1951, c 26.202 The Fair Employment Practices Act, SO 1951, c 24; The Fair Accommodation Practice Act, SO 1954, c 28; TheFemale Employees Fair Remuneration Act, SO 1951, c 26.203 Dominique Clément, William Andrew Silver and Daniel Trottier, The evolution of human rights in Canada(Ottawa: Canadian Human Rights Commission, 2012) c 4.204 Ibid .205 Mary Cornish, Fay Faraday and Jo-Anne Pickel, Enforcing Human Rights in Ontario (Aurora: Canada LawBooks, 2009).206 The 1960 federal Bill of Rights banned sex discrimination, and the first provinces to ban discrimination on thebasis of sex were British Columbia and Newfoundland, both in 1969.207 Canadian Human Rights Act, RSC 1985, s 3.75they are located: (a) under the Constitution; (b) under the Human Rights Act; and, (c) under thePay Equity Act and Employment Equity Act.4.2.1. The ConstitutionThe Charter safeguards the fundamental rights and liberties of all Canadians that aredeemed necessary for Canada to remain a free and democratic country. It is applicable to alllevels of government – federal, provincial, and territorial – as well as the legislation theyenact.208 The promise of equality, even on the grounds of sex and ethnicity, is based on Canada'sCharter of Rights and Freedoms' section 15 right to equality. The Supreme Court of Canada hasstated that section 15's purpose is to protect marginalized groups in society from social, political,and legal disadvantage. The Charter's Section 15 states unequivocally that all individuals shall behandled fairly regardless of ethnicity, faith, national or ethnic origin, color, sex, age, or physicalor mental impairment.209As setting out the requirements of substantive equality for all legislation but only providinga direct remedy for employment discrimination if it is found in federal law or federal governmentaction that applies to workers in the federal sector. Most recently, the Supreme Court of Canadaconsidered whether a job-sharing program that disadvantaged primarily women employees fromgaining access to pension programs violated s.15 in Fraser v Canada.210 on. Three womenemployees of the RCMP took up job sharing arrangements after 1997 when the RCMP began tooffer this option. “To over-simplify, their requests to “buy” (pay into the pension fund)themselves back into the pension position they would have been in as full-time workers for thatperiod of job sharing were repeatedly denied by their employer.”211 “The claimants initiated anapplication arguing that the pension consequences of job‑sharing have a discriminatory impacton women contrary to s. 15(1) of the Charter.”212 The Supreme Court found that “The RCMPpension”, which was created through federal legislation, had adverse effects on women. It metthe two-step test for a prima facie violation of s. 15(1) of the Charter. “The first step: in order for208 “Guide to the Canadian Charter of Rights and Freedoms” (April 2006), online: Government of Canada<>[] [GCCRF].209 Ibid at 15.210 Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII).211 Sonia Lawrence, “Thinking about Fraser v. Canada (Attorney General), 2020 SCC 28” (November 2020), online:York University <>[].212 Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII).76a law to create a distinction based on prohibited grounds through its effects, it must have adisproportionate impact on members of a protected group. The second step: whether the law hasthe effect of reinforcing, perpetuating, or exacerbating disadvantage — will usually proceedsimilarly in cases of direct and indirect discrimination. The goal is to examine the impact of theharm caused to the affected group, which must be viewed in light of any systemic or historicaldisadvantages faced by the claimant group.”213“Fraser is the first successful adverse effectsclaim under section 15 of the Canadian Charter of Rights and Freedoms in over 20 years.”214 Itconfirms that laws that seem neutral may still discriminate against members of protected groupsand affect them differently.Significantly, section 15(2) of the Charter specifically extends protection to affirmativeaction programs.215 It notes that subsection (1) does not prohibit any statute, policy, or operationwith the purpose of improving the circumstances of vulnerable persons or classes, includingthose who are disadvantaged due to their ethnicity, national or ethnic origin, color, faith, sex, age,or mental or physical impairment. Affirmative action applies to a collection of policies andprocedures within a government or agency that aims to incorporate certain populations based ontheir ethnicity, color, creed, or national origin in fields such as education and jobs that they werepreviously exempt from. 216. Section 15(2) is therefore aimed at improving, in part, employmentopportunities for women, Indigenous peoples, visible minorities, and those with mental orphysical disabilities.2174.2.2. The Canadian Human Rights ActIn addition to safeguarding equality under s.15 of the Canadian Charter of Rights andFreedoms, comprehensive anti-discrimination laws are set out under provincial and federalhuman rights legislation. At the federal level, the Canada Human Rights Act [CHRA] prohibitsdiscrimination on the basis of race, gender, disability, religion, and other enumerated grounds.218213 Fraser v. Canada (Attorney General), 2020 SCC 28 (CanLII).214 Jennifer Koshan & Jonnette Watson Hamilton, “Tugging at the Strands: Adverse Effects Discrimination and theSupreme Court Decision in Fraser” (November 2020), online (Blog): ABlawg: The University of Calgary Faculty ofLaw Blog <> [].215 Ming Feng Zhang, “Canada’s Action to Correct Discrimination and Its Implications for China” (2006) 7 Law Sci103 at 103.216 Oxford University Press, Oxford Dictionaries (Oxford: Oxford University Press, 2014).217 GCCRF, supra note 2018 at 15218 Canadian Human Rights Act, RSC 1985, c H-6, s 3(1).77The CHRA prohibits discrimination in the following settings: goods and services; commercialand residential premises; and, employment.219 In particular, the CHRA prohibits discrimination inmany specific contexts related to employment, including in relation to recruitment, employeeorganizations, and wages.220As a federal instrument, the CHRA applies to settings under federal authority in Canada,such as the aviation and airline industry, postal service, and federal fisheries.221 Canada is ademocratic democracy with a 'modern welfare state' constitution. The division of powersbetween the federal, state, and municipal governments is well defined and closely guarded.222There are similar legislative protections and institutional structures in different provinces. Due tothe federalist structure under the Canadian Constitution, the federal laws (i.e., Canadian HumanRights Act) only apply in federally regulated workplaces. Provincial laws apply in all otherworkplaces.At the federal level, the Canadian Human Rights Commission [CHRC] and Tribunal settlecomplaints of discrimination.223Additionally, the Employment Equity Act empowers the CHRCto ensure that workers have fair opportunity for women. 224 If an individual believes they haveexperienced discrimination in a setting that comes within the jurisdiction of the CHRA, they maycontact the CHRC and file a complaint225. Once a complaint is filed, a human rights officer willreview the complaint to determine its admissibility. And they will inform respondents andrecommend you both participate in mediation. Mediation is an entirely mutual and privatemethod. It provides an incentive for the parties to discuss their side of the storey and address thequestions that prompted the lawsuit.226All parties can sign a compromise document if mediationis effective. This resolution will detail the steps you and the respondent have agreed to take tosettle the conflict. If a settlement cannot be reached, the human rights officer will prepare areport on the file and transfer this to a Human Rights Commissioner,227who will review the file219 Ibid at ss 5-11.220 Ibid at ss 7-11.221 Constitution Act, 1867, s 91.222 Kim England & Gunter Gad, “Social Policy at Work? Equality and Equity in Women’S Paid Employment inCanada” (2002) 56:4 GeoJournal 281 at 281.223 Canadian Human Rights Act, RSC 1985224 The Employment Equity Act, SC 1995.225 “About the Process” (no date.), online: Canadian Human Rights Commission <> [].226 Ibid.227 Ibid..78and make a determination on the complaint. The Commissioner may decide to dismiss thecomplaint, send the complaint to conciliation or to the Canada Human Rights Tribunal [CHRT]for adjudication, or request more information to reach a decision.228The Tribunal and the Commission are distinct entities with distinct roles in the humanrights litigation procedure. The Canadian Human Rights Commission should be contacted first tofile a lawsuit under the Canadian Human Rights Act. The Commission has the power to reviewcases of prejudice and, if the allegation is found to be justified, to send the matter to the Tribunalfor a trial.229 The CHRT is a quasi-judicial entity that operates in a comparable manner to ajudge.230 The Tribunal's task is to hear testimony and testimonies about discriminationcomplaints; to assess if discrimination occurred; and, if so, to determine an adequate remedy.Forexample, it has the power to summon witnesses to testify. The judgment made by the CHRT islegally binding, and remedies for discrimination that the CHRT can award include an apology,compensation for material loss or mental impairment, ordering employers to provideemployment opportunities for employees who are deprived of work and correcting or eliminatingdiscrimination. A judgment made by the CHRT can be appealed to the Federal Court of Canadafor judicial review.231Prior to a hearing, the Tribunal’s complaints resolution process involves many steps. First,once a complaint is referred to the Tribunal, the complaint can opt for mediation. If both sidesconsent on the complaint, the case is closed. If the complaint is not resolved, the matter is sent topre-hearing case management. Second, parties prepare a declaration of particulars, whichincludes a collection of records and witnesses, during pre-hearing case management. The partiesthen provide facts to the jury, which could include notes and eyewitness testimony. Finally, theTribunal renders a ruling under which it determines if prejudice occurred and, if so, grants an228 Wei Wei Li, “The Domestic Implementation Mechanism of the Principle of Non-discrimination in InternationalHuman Rights Law - the Legal Model of Canada and Australia for Reference” (2003) 24:4 Law Sci Mag 44 at .229 “A Guide To Understanding The Canadian Human Rights Tribunal” (no date), online: Canadian Human RightsTribunal <> [][AGUCHRT].230 “Home” (no date), online: Canadian Human Rights Tribunal <>[].231 Li, supra note 224 at 37.79adequate remedy.2324.2.3. Ontario Human Rights CodeThe Human Rights Code is a law in the Canadian province of Ontario that forbidsdiscrimination in such social fields on the basis of a variety of factors (such as ethnicity, sex, ordisability) (such as services, housing or employment).It is a provincial law and all other Ontariolaws must conform with the Code. The Code is administered by the Ontario Human RightsCommission(OHRC)and enforced by the Human Rights Tribunal of Ontario.233 The OHRC is anindependent government body that reports to the legislature through the Ministry of the AttorneyGeneral of Ontario.234 The OHRC largely engages in public policy, education and awarenessactivities.The Human Rights Tribunal of Ontario is an administrative tribunal located in the provinceof Ontario, Canada. It hears and decides applications filed under the Ontario Human Rights Code.It is one of Ontario's eight criminal justice tribunals.235As a direct-access Tribunal, any personwho believes they have been discriminated against under the Ontario Human Rights Code maybring an application to the Tribunal and is not required to have their application vetted by theCommission, diverging from the CHRA approach outlined above. The OHRC can bring its owncases before the Tribunal or participate in human rights cases before the Tribunal in matters ofgeneral public interest. Additionally, the OHRC designs legislation and educates the public,tracks human rights, performs study and review, and conducts human rights investigations.236Each province in Canada has a similar legislative and remedial structure for responding todiscrimination in settings that fall within provincial jurisdiction, such as under the BC HumanRights Code, which prohibits discrimination on similar grounds and in similar settings to thatcontained under the Canadian Human Rights Act and Ontario Human Rights Code. Provincesalso have similar institutions and procedures to the federal Commission and Tribunal, although232 AGUCHRT, supra note 229.233 “Guide to your rights and responsibilities under the Human Rights Code” (December 2013), online: OntarioHuman Rights Commission <>[].234 “About the Commission” (no date), online: Ontario Human Rights Commission <> [].235 “Home” (no date), online: SJTO <> [ “The Human Rights System” (no date), online: Ontario Human Rights Commission <> [].80some provinces, like BC and Ontario, provide a direct access model for complaints to be heard atthe Tribunal, mirroring a court-like system more closely than jurisdictions that require aCommission to serve a gatekeeping role on complaints.4.2.4. Employment and Pay Equity LawsIn addition to anti-discrimination laws contained in Canada’s Charter and Human RightsAct, Canada also has specific laws to address equity in employment and pay. For example, thefirst equal pay legislation to come into effect was Ontario's Female Employees FairRemuneration Act of 1951.237 Like the federal Female Employees Equal Pay Act of 1956 andsimilar legislation in a number of other provinces, this statute provided for equal pay for thesame work done in the same establishment.238 In the 1970s and 1980s, pay equality policiesproliferated, based on a recognition that women’s salaries were generally lower than men’s, andthat women’s ability to work was underestimated, leading to low salaries.239 These policies andlaws generally relate to either employment equity, or pay equity.Employment equity is not synonymous with wage equity. Pay equality, as a legislativeconcept in Canada, applies to the legal provision that predominantly female professions becompensated equally with predominantly male occupations of comparable value within aspecified entity.240 One way to think about the difference between job equality and wage equity isto consider how they treat the issue of underpaying disproportionately female jobs differently.Pay equity is concerned with the pay disparity between men and women, while employmentequity is concerned with and women's employment prospects.241 Wage equity clearlyacknowledges the difficulty in integrating primarily male professions and thus seeks tomaximizes compensation for predominantly female occupations. Employment diversity seeks toexpand women's participation in well-compensated, historically male-dominated industries.The Pay Equity Act is designed to address horizontal occupational segregation and reducethe gender pay gap, ameliorating the impact of concentration of women in less-skilled, less-paid,and less-prestigious occupations. The Pay Equity Act indicates that some female-dominated jobs237 Female Employees Fair Remuneration Act, SO 1951.238 Shirley GE Carr, “Sex-Based Discrimination in Employment: Problems and Progress in Canada” (1983) 122:6Intl Lab Rev 761 at 761.239 Ibid at 761.240 Carr, supra note 238 at 761.241 Ibid at 761.81(e.g., nursing) are considered to be of equal value as male-dominated jobs. This act penalizesemployers who violate pay equity, and takes a variety of measures to protect pay equity.Employment equity focuses more on increasing the number and status of people in the sameprofession, especially in relation to professions that have long been dominated by men, and tendto have higher status and pay, such as managerial positions. Employment equity is primarilydesigned to address vertical occupational segregation, and it aims to increase employmentopportunities for women and to ensure that women and men compete on the same platform anddo not lose out on job opportunities and promotions because of their gender. Canada has adoptedtwo statutes to address the issue of occupational segregation between men and women from bothhorizontal and vertical perspectives.Pay equity is required under both the CHRA and the Pay Equity Act242 for federallyregulated employers. The CHRA stipulates that the difference of salary between male and femaleemployees engaged in work of equal value in the same organization is a manifestation ofdiscrimination.243 The “Equal Wage Guidelines 1986” issued by the CHRC providecorresponding guidance for ensuring equality of wages under the CHRA. Under the CHRA,federally regulated employers have a legal obligation to ensure that male and female employeesin the enterprise receive equal remuneration for work of equal value. The federal public sectoralso has clear provisions on wage equality. In order to compare whether wages are fair, it isnecessary to consider wages including all forms of compensation, such as commissions, bonuses,holiday wages, housing funds, insurance, and other benefits directly or indirectly obtained fromemployers 244.The Pay Equity Act also requires employers to detect gender discrimination inremuneration measures in a timely manner and make improvements. Under this Act, employerswill be required to adjust the wages of female employees to ensure that women receive the samewages when they perform a job of comparable value to men. In addition, sections 182 and 249 ofPart III of the Canada Labor Code empower labor program inspectors to inspect all records offederally regulated companies to determine whether there is gender-based wage discrimination.If an inspector discovers the existence of wage inequality, the inspector may report the situation242 Pay Equity Act, SC 2018, c 27, s 416 [not in force].243 Canadian Human Rights Act, RSC 1985, s 11.244 Carr, supra note 238 at 761.82to the CHRC.Work equity, as described by federal legislation in the Employment Equity Act245,mandates federally controlled companies to take affirmative measures to expand inclusion offour identified groups: women, people with disabilities, Aboriginal communities, and visibleminorities.246 The Act states that “employment equity means more than treating persons the sameway but also requires special measures and the accommodation of differences”.247 The Act aimsto enable disadvantaged groups who have been excluded from certain areas to obtain greateremployment opportunities so as to reduce or eliminate discrimination, such as by allowing morewomen to participate in high-paying jobs traditionally held by men 248. It emphasizes the needfor and goal of equality in the workplace by maintaining fairness in labor, and providing allemployees with a fairer working environment.249 Therefore, as a pursuit of equal rights,employment equity requires not only procedural equality, but also specific measures toameliorate systemic discrimination in labor and employment. Moreover, the Employment EquityAct requires employers to adopt an employment plan to increase the representation of women andother disadvantaged groups.250 In the section 5 of the Employment Equity Act from two aspects.It notes that all employers must enforce job diversity by removing obstacles to employment forvulnerable communities. Additionally, it allows employees to implement affirmative practicesand fair accommodations to ensure that individuals from specified communities attain a certainlevel of inclusion in each occupational group.251Although some provinces have established detailed pay equity legislation, they also facethe challenge of effectiveness. The Quebec Pay Equity Act252 contains 135 articles that addressall facets of pay equity implementation. This Act establishes the most progressive policy in thefield of pay equity.253 The Quebec Act on Pay Equity allows a pay equity plan which comprises245 Employment Equity Act, SC 1995, c 44.246 “Frequently Asked Questions on Employment Equity” (August 2009), online: Archive<> [].247 Employment Equity Act, SC 1995, c 44, s 2.248 Lorne Foster & Lesley Jacobs, “Workplace Practice and Diversity in Canada: Employment Policy in GlobalModernity” (2012) 15:3 Think India Q 57 at 57.249 Ibid at 57.250 Ibid at 57.251 Employment Equity Act, SC 1995.252 Pay Equity Act, SC 1996.253 Séverine Lemière, “Un Salaire Égal Pour Un Emploi De Valeur Comparable” (2006) 1:15 Travail, Genre Et83four stages to judge the presence of sex-based pay discrimination. While this act is probably themost comprehensive and structure example, one of its limitation is that employees are notexpected to report back which could adversely impact on the degree of law enforcement.254Anumber of companies may not follow the rules even pay equity has been set by law. One ofreasons is that the Pay Equity Commission need so much time lag to public its applicationguidelines. Many companies need to wait for more precise guidelines to draw up their equityplans.255Another explanation may be that companies with less than 49 workers are exempt fromdeveloping a structured pay equality action plan. Certain small businesses are opposed tocreating a pay equity scheme. According to a report commissioned by the Institut de laStatistique du Québec, 80.2 percent of wage equality programmes for businesses with 200 ormore workers have been completed.256According to a 2002 study conducted by the Quebec PayEquity Commission, workers in overwhelmingly female occupations in businesses with between10 and 49 employees received an average pay adjustment of 8.4 percent. Half of these employershave begun or concluded efforts to address pay equality.257Having reviewed the overall structure of Canada’s anti-discrimination law framework, thenext section will examine how this process unfolds for an individual who experiencesdiscrimination in the workplace.4.3. Protection forWomen at Work in Canada: AView of the Legal ProcessIn this part, I describe how human rights law in Canada functions, focusing especially onemployment protection for women who are pregnant. I explain how the legislation described inthe above section applies (including the protected grounds and employment-related activities),the process required to enforce legal rights against discrimination, and the ultimate remediesavailable. This review provides a foundation through which to identify practices that willimprove the current process, and its limitations, in China, as described in the earlier chapters.Sociétés 83 at 83.254 Ibid at 83.255 Marie-Thérèse Chicha, “A comparative analysis of promoting pay equity: models and impacts” (September 2016),online: ILO<>[].256 Ibid.257 Ibid.844.3.1. Pregnancy as a prohibited ground of discrimination in employmentThe Canadian Human Rights Act prohibits discrimination on a number of grounds,including ethnicity, national or ethnic origin, color, faith, age, sex, sexual preference, genderidentification or speech, marital status, family status, genetic traits, and impairment.258Specifically, it clarifies that discrimination related to pregnancy or child-birth is discriminationon the basis of sex. Discrimination against pregnant women includes any behavior, decision, orprocedure that adversely affects an individual as a consequence of her pregnancy status. Brooks v.Canada Safeway Ltd., the Supreme Court of Canada also ruled,259that sex discriminationincludes discrimination based on pregnancy. Safeway breached the provincial Human Rights Act,the Court ruled, by declining to offer fair pay to employees who lost work owing to maternity.The protection of pregnant women in employment in Canada is relatively complete,covering recruitment activities (applications, interviews, job selection), employment (job security,promotion and career advancement), and maternity leave and return-to-work specifically. Forinstance, the CHRA states that decisions regarding employment or promotion should not bemade in a discriminatory manner. Section 8 of the Act states that: “It is a discriminatory practice(a) to use or circulate any form of application for employment, or (b) in connection withemployment or prospective employment, to publish any advertisement, or make any written ororal inquiry, that expresses or implies any limitation, specification or preference based on aprohibited ground of discrimination.”260 Interviewers should refrain from inquiring regardingcandidates' family plans, contraception use, or maternity.261Additionally, the CHRA allowsemployers to meet a pregnant employee's desires by avoiding obstacles that impede her capacityto do her work. They should offer reasonable and dignified solutions to accommodate theemployee. When an employee returns from maternity leave, they should be assigned to the sameor similar position. Provincial legislation and its interpretation contain the same or similarrequirements as described here.Along with the Canadian Human Rights Act, federally supervised workers are required tocomply with additional occupational regulations, such as the Employment Equity Act and the258 Canadian Human Rights Act, RSC 1985, s 3.259 Brooks v. Canada Safeway Ltd., 1989 SCR 1 at 1219.260 Canadian Human Rights Act, RSC 1985, s 8.261 “Policy on Pregnancy & Human Rights in the Workplace - Page 2” (no date), online: Archive <> [].85Canada Labor Code. This and other employment-related laws and policies can provide pregnantwomen with additional safeguards and benefits. 2624.3.2. Initiating a legal complaint for pregnancy-related discrimination at workAs examined in the previous chapter, China’s current legislation does not specifyinstitutions that can receive complaints of discrimination. As I discussed, this has createdsignificant challenges and obstacles for women who experience discrimination in the workplaceto seek legal remedy through an effective and efficient means. The administrative tribunal modeladopted in Canada may provide an alternate pathway for complaints to improve access to justice.If a pregnant employee feels that she is discriminated due to being pregnant at work, shemay seek assistance to file a complaint with a relevant human rights body (either the federalCommission, or a provincial Tribunal or Commission). At the federal level, as described earlier,the Commission will analyze the complaint and determine how to proceed. They may attempt toeffect resolution through mediation, or send the case to the Canada Human Rights Tribunal. TheTribunal is a separate entity that has the authority to render binding rulings and grant remedies.They have the power to order a company to pay penalties or modify its procedures or policy tolessen or remove the discriminatory impact.263In Ontario or BC, which each have a direct-access tribunal model, the employee would filea complaint directly with the Tribunal. This would proceed through a series of pre-hearingprocesses, which may include mediation or other settlement-type conferences. If the complaint isnot resolved, it would proceed to a full hearing and the relevant Tribunal would decide the matter.Provincial human rights tribunals have broad remedial authority, which can include awardingcompensation, requiring the employer to change their policies or practices, and others.4.3.3. The legal principles governing discrimination complaints in CanadaIn Canada, the burden of proof in a human rights complaints process is clearly dividedbetween the complainant and respondent. First the complainant must prove prima faciediscrimination. The Supreme Court of Canada has stated the following as the norm for this: Inlitigation before human rights tribunals, the applicant must define three elements: (1) they262 Jessica Howard, “No, Moms, the gender pay gap is not on us” (September 2018), online: Archive<> [].263Ibid.86possess a protected characteristic; (2) they have been subjected to an adverse effect or procedure;and (3) their protected characteristic was a contributing factor to the adverse effect ortreatment.264Once a complainant has established prima facie discrimination, the respondent mayestablish that the discriminatory treatment was justified in order to excuse them from liability.For example, if a complainant claims she was not hired for a job because she is a woman, theemployer may present evidence that the complainant wasn't qualified for the job. In Canada, thisis referred to as a bona fide occupational condition [BFOR]. A BFOR is a condition that isneeded for the job to be performed. It must be essential for the job to be completed and itsabsence must be difficult to handle without causing unnecessary inconvenience to the employer.“The Supreme Court set out a test for determining whether a discriminatory standard is aBFOR in its 1999 Meiorin decision:(1) The employer must show the standard is adopted for a purpose rationally connected tothe performance of the job;(2) The employer just establish it adopted the standard in an honest and good faith beliefthat it was necessary to the fulfilment of that legitimate work-related purpose; and,(3) The employer must show that the standard is reasonably necessary to theaccomplishment of that purpose. To demonstrate this, the employer must show that it isimpossible to accommodate individual employees sharing the characteristics of the complainantwithout imposing undue hardship upon the employer.”265If the respondent cannot justify the standard as a BFOR, the discrimination complaint willbe allowed, meaning that the respondent is liable. Other forms of justification are available forrespondents to advance in discrimination complaints, the definitions and tests for which areoutlined individually and in relation to the specific site of discrimination at issue.266Despite the existing approach in Canada, there are concerns that remain in requiring an264 Moore v British Columbia (Education), 2012 SCC 61, [2012] 3 SCR 360.265“Gender Equality And Women’s Development in China” (22 September 2015), online: The State CouncilInfomation Office of China <>[]..266 Other than the BFOR justification, the issue of accommodation to the point of undue hardship often arises inemployment discrimination complaints.87individual employee to bear the burden of proof in an employment discrimination complaint.First, in the workplace, the employee is in a weaker position relative to the employer. In addition,an employer may uniquely have in their possession or knowledge relevant evidence orinformation about the rules or practices that relate to the discrimination complaint. It may beparticularly difficult, therefore, for employees to gain access to such evidence or information.This is all the more concerning in light of the fact that a majority of discrimination complaintswill arise in the context of indirect discrimination, where the evidences and facts giving rise tothe complaint will often be more subtle in nature. This may lead to unsubstantiated cases, andcases that do not marshal sufficient evidence may be dismissed or abandoned.2674.4. Classifying Discrimination in Employment: Direct, Indirect and SystemicDiscriminationAt present, although it has been stipulated in China's legal provisions that directdiscrimination is prohibited, indirect discrimination remains widely documented in practice. As aconsequence, in order to better respond to sex-based discrimination in employment, China couldadopt a similar approach to Canada, to expand the categories of discrimination protected againstunder law, including not only direct discrimination but also indirect discrimination. This sectiondiscusses the definition and expression of direct discrimination, indirect discrimination andsystemic discrimination, and analyzes how these classifications may operate to better identifyand remediate employment discrimination for women, and in particular, in relation to pregnancyand family status.Direct discrimination is when someone is treated unfairly because of their gender or otherprotected characteristics.268 If the employer adopts a standard that discriminates on the surfacebased on a protected characteristic, this is considered as direct discrimination.269 For example, ifa woman loses the opportunity to be promoted because she is female, or the company givesreasons that the woman will be pregnant and take maternity leave, and therefore refuses topromote her, these are manifestations of direct discrimination. Absent the ability to prove267 Guang Peng Chen, “The Judicial Practice of Sex Discrimination in Employment-- Based on the ComparativeStudy Between China and the United States” (2019) 34:4 Grad Law Rev 12 at .37268 Colleen Sheppard, “Mapping Anti-Discrimination Law Onto Inequality at Work: Expanding the Meaning ofEquality in International Labor Law” (2012) 151:1-2 Int Labor Rev 1.269 Caterina Ventura, From Outlawing Discrimination to Promoting Equality: Canada’s Experience with Anti-Discrimination Legislation (Geneva: Employment Department, International Labor Office, 1995) .88justification (such as in relation to a bona fide occupational requirement), direct discrimination isprohibited under Canadian law,270 and a woman will have access to legal complaint and remedyunder human rights law.Indirect prejudice acknowledges that such procedures, regulations, or requirements thatseem to be neutral on the surface can have an unjustifiable or substantial detrimental effect onspecific individuals or cultures in reality.271 For instance, apparently benign laws, guidelines,procedures, activities, or requirements can have a "adverse impact" on individuals withdisabilities.272 Indirect prejudice is often imperceptible. Discriminatory comments are seldommade explicitly, and people seldom use stereotypical beliefs to justify their actions.273 Forexample, in the process of hiring sales executives for a company, the human resourcesdepartment issues specific requirements that are gender-neutral, but only those who meet theapplication requirements are men. This would give rise to questions about indirect discriminationbased on gender.Systemic discrimination has been described as "practises or behaviours that have the resultof restricting an individual's or group's right to resources commonly accessible due to attributedrather than actual characteristics, whether by design or influence.274 The occurrence ofdiscrimination does not require the discovery of discriminatory intent. Therefore, systemicdiscrimination usually refers to the negative impact caused by certain standards, policies orbehaviors. In addition, systemic discrimination is comprised of multiple rules and practices,although it may not be possible to find the discrimination contained in these rules or practiceswhen viewed separately.275Systemic discrimination still exists in Canadian workplaces. For example, female-270 O’Malley v Simpsons-Sears, [1985] 2 SCR 536. The court released another opinion concurrently that alsorecognized unintentional employment discrimination. K.S. Bhinder v. Canadian Nat’l Ry. Co., [1985] 2 S.C.R. 561,567 (agreeing that “the definitions of discriminatory practices in the Canadian Human Rights Act, ss. 7 and 10,extend to both unintentional and adverse effect discrimination”); see Hunter & Shoben, supra note 12, at 119.271 Bethany Hastie, “The Inequality of Low-Wage Migrant Labor: Reflections on PN v FR and OPT v PresteveFoods,” (2018) 33: 2 Can J Law Soc 243 at 246; Colleen Sheppard, Inclusive Equality: the Relational Dimensions ofSystemic Discrimination in Canada (Montreal: McGill-Queen’s University Press, 2010) 13; Bob Hepple, “Equalityand Empowerment for Decent Work,” (2001) 140 Int’l Lab Rev 5 at 7; Adelle Blackett and Colleen Sheppard,“Collective Bargaining and Equality: Making Connections,” (2003) 142 Int’l Lab Rev 419 at 426.272 “6. Forms of discrimination” (no date), online: Ontario Human Rights Commission <> [].273 Ibid.274 Canadian National Railway Co. v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114 at 1138.275 Ibid at 1138 .89dominated occupations often pay less than male-dominated occupations — even though theyneed the same degree of skill.” based on Canadian statistics.276According to a Canadian Centrefor Policy Alternatives research, 97 percent of truck drivers in Canada are men and receive amedian salary of $45,417 per year, whereas 97 percent of early childhood educators are womenand earn a median salary of $25,334 per year.277 There are some factors that are said to contributeto the gender wage gap, such as maternity leave.278 However, even women without children, onaverage, face a pay gap of 10% according to Statistics Canada data from 2015.279 By focusingonly on the motherhood punishment, we overlook the obstacles that women encounter in theworkplace regardless of whether they have children – perhaps more so as they seek jobs in male-dominated fields.280 Women are paid less than men not just because they are pregnant and takematernity leave. As I have mentioned above, Fraser is an important case about systemicdiscrimination against women in relation to assumed family roles. Three former RCMPemployees on maternity leave were subjected to discrimination as a result of a job-sharingscheme. They were not qualified for full-time pension credit because job-sharing RCMPparticipants are counted as part-time employees under the RCMP pension scheme. The plaintiffsfiled an appeal with the Federal Court charging that the pension effects of work sharing arediscriminatory against women in violation of Charter section 15. Their application was denied bythe Federal Court, and their petition was denied by the Federal Court of Appeal. However,Justice Abella of the Supreme Court of Canada, arguing for the plurality, concluded that theRCMP pension package had a discriminatory effect on women and therefore directly breacheswomen's right to equality under section 15 of the Charter. Justice Abella used two-step test tosection 15 claims. “She emphasized that the Charter not only guarantees but also substantiveequality which requires attention to the full context of the claimant group’s situation and the276 Melissa Moyser, “Women and Paid Work” (March 2017), online: Statistics Canada<> [].277 Brittany Lambert & Kate Mclnturff, “Making Women Count: the Unequal Economics of Women’S Work” (March2016), online: Canadian Centre for Policy Alternatives<> [].278 Maria Florencia Cabeza, Jennifer Barger Johnson & Lee J Tyner, “Glass Ceiling and Maternity Leave asImportant Contributors to the Gender Wage Gap” (2011) 3:1 South J Bus Ethics 73 at 37.279 Melissa Moyser, “Women and Paid Work” (March 2017), online: Statistics Canada<> [].280Jessica Howard, “No, Moms, the gender pay gap is not on us” (September 2018), online: Archive<> [].90actual impact.”281 She stressed the group's members' enduring organizational disadvantages,which have acted to restrict their opportunities. This case demonstrates a watershed moment inthe Court's understanding of the correct reading of section 15 of the Charter and the Court'sposition in eradicating prejudice in Canada.4.5. Institutional Actors: The Role of Human Rights Commissions and RelatedAdministrative Bodies in CanadaThis section discusses the role of administrative bodies, such as Human RightsCommissions, in Canada. I discuss two examples here: the Pay Equity Commission in Ontarioand the Human Rights Commission in Ontario. Each of these Commissions serve distinct rolesrelated to both adjudication of discrimination complaints, and related work to advance equalityand equity in the workplace. As such, these various bodies may illustrate key characteristics,functions and purposes that would be beneficial for future law and policy reform in China.In each province and at the federal level in Canada, Human Rights Commissions play asignificant supporting role in addressing sex-based discrimination in employment. In addition,related bodies, such as Pay Equity Commissions, may address specific equality issues.Each province in Canada has a designated Human Rights Commission, though the functionof these commissions varies across provinces. In provinces that utilize a direct-access complaintsmodel to the Human Rights Tribunal, such as BC and Ontario, the Commission will not bedirectly involved in handling cases or complaints. In other provinces, such as Quebec, and at thefederal level (as described earlier in section 2), the Commission may act as a “gatekeeper” forscreening and handling complaints on their initial filing. However, not every province has thesespecialized bodies to deal with discrimination. A number of provinces don’t even have paylegislation.In Ontario, the Pay Equity Commission is responsible for resolving issues related to wagelevels between employees and employers, such as women’s equal pay for equal work, andwomen’s wage equity under different job values. The Commission is divided into twocomponents: the Pay Equity Office and the Pay Equity Hearings Tribunal. The Pay Equity Officeinterprets the Pay Equity Act in order to assist contractors and workers in understanding theirrespective privileges and obligations. Additionally, the Pay Equity Office conducts investigations281 Fraser v. Canada (Attorney General), 2020 SCC 28 (CanLII).91into complaints regarding violations of the Pay Equity Act. The Pay Equity Office is responsiblefor enforcing the Pay Equity Act in industries and, where appropriate, referring matters to thePay Equity Hearings Tribunal for greater action. The Pay Equity Commission mediates disputesbetween parties. When the two parties cannot reach an agreement, they can appeal to the PayEquity Hearings Tribunal. The Tribunal has sole authority to resolve all factual and legal issuesthat could occur in each matter before it. The decisions of the Tribunal are final and conclusivefor all purposes. The Pay Equity Committee strictly abides by the Pay Equity Act. Its purpose isto maintain the equality of women’s wages in the work process and eliminate or reduce genderdiscrimination against women.282Ontario's pay equality legal scheme is widely regarded as one of the most successful in theworld at closing the income disparity. To achieve meaningful wage parity, it incorporatesregulatory, collective bargaining, adjudicative, and compliance processes.283 The Ontario EqualPay Coalition was most effective in eradicating the gender disparity for women's jobs under theAct.However, advanced legislation doesn’t mean that gender wage gap has been solved.Ontario’s law and enforcement institutions also have their weakness. Not all women achievedpay equity in Ontario. Those non-organized women cannot effectively enjoy the benefits of thelegislation. They need special support and a strengthened law with monitoring.284According to the Gender Wage Gap Strategy Steering Committee's final report andguidelines, the recommendations are directed at simplifying the pay equality legislation in orderto support job assessment.285Additionally, the recommendation is based on corporate policiesand advocates for more accountability, gender analysis of the workplace, and a rise in the numberof women on boards of directors. 286The government need pay more attention to how to maintainpay equity once they achieved. Or how to add new job classes to system. The gender pay282 “Advancing Women’s Economic Equality” (no date), online: Pay Equality Commission<> [].283 “History of Pay Equity Advocacy in Ontario” (2014), online: Ontario Equal Pay Coalition<> [].284 Ibid.285 “Archived - Final Report and Recommendations of the Gender Wage Gap Strategy Steering Committee” (June2016), online: Ontario <> [].286 Ibid.92disparity persists in Canada: in 2019, a woman gained 0.88 cents for every dollar earned by amale. This equates to a $3.87 hourly pay disparity (or a 12% wage disparity) between men andwomen.287 Canada still has a lot to do to improve the effectiveness of law.Human Rights Commissions also provide a wide array of resources, training programs andeducational tools to increase awareness and knowledge about human rights. In addition topublishing research and policy reports that the Tribunal may rely on in interpreting human rightsobligations, it also develops training materials which the Tribunal may use in ordering remedies.For example, the Ontario HRC has a number of recorded webinars on different topics: sexualharassment, discrimination of pregnancy and breastfeeding, gender identity and genderexpression.4.6. ConclusionFrom the above analysis and comparison, there are many lessons that can be learned fromCanada’s advanced legislative experience in addressing sex-based discrimination in employment.First, Canada’s approach to developing a complete system of anti-discrimination law, such asunder the Canadian Human Rights Act and provincial human rights legislation, creates a moreeffective and efficient body of law and process for complaints. The definition and classificationof discrimination in Canada is also more detailed, accounting for not only direct discrimination,but also indirect and systemic discrimination. Canada has cited considerable protected grounds inhuman rights legislation, including specifically extending protection on the basis of pregnancy asa form of sex discrimination. In addition, human rights legislation is applicable to allemployment-related activities, including recruitment, ongoing employment, maternity leave, andcareer advancement. Moreover, Canada requires employers to accommodate the reasonableneeds of pregnant employees.The legal processes and principles attending discrimination complaints in Canada properlybalance the burden and onus of proof for complainants. This is particularly clear in theformulation of the prima facie discrimination test, and the burden on employers or respondentsto justify discriminatory conduct, such as through establishing a BFOR. There is with a detailedexplanation of complaint process and the burden of proof to ensure that when people are287 “Pay Equity Short Explainers” (2021), online: CHRC-CCDP <> [].93discriminated against, they can access the law and related supporting institutions to protect theirrights and interests. Canada's federal and provincial human rights Commissions and Tribunalshave taken measures to ensure the implementation of the law to better deal with discrimination.These specialized agencies have a significant role in implementing anti-discrimination laws.Overall, Canada's anti-discrimination legal system provides a comprehensive and effectivefoundation from which to consider reform proposals for China. The next, and final, chapter ofthis thesis will formulate and explain recommendations for China, based on the identified gapsand challenges from Chapters 2 and 3, and the best practices from Canada identified in thischapter.94Chapter 5: Recommendations for ChinaIn September 2015, the Fifth Plenum of the 18th Central Committee of the CommunistParty of China decided to implement “the universal two-child” policy.288According to the newsituation of population development, this is an important adjustment following the “one-child”policy implemented by China. This fertility policy was officially implemented on January 1,2016, which is marked the beginning of “the universal two-child” era in China.289 “The universaltwo-child policy” has given way to great expectations. The government hopes that it can assistthe economic development of China by effectively alleviating problems such as labour forceshortages, the aging population, the population gender imbalance, and the increasing number ofelderly parents who have lost their only child. Besides, new two-child policy also can help solvesocial issue which caused by family planning policy. Now some Chinese families face a lot ofpressure to take care elder people since there is only one kid in a family. This also places a heavyburden on a family. If there are more children, they can take turns to look after the elderly.Women are the most directly affected group related to China carrying out the populationpolicy.290 If women’s concerns that the two-child policy will aggravate their workplacedevelopment are not addressed, they may not have a second child, and the effect of the two-childpolicy will be limited. Therefore, research on the protection of women’s rights must beincorporated into the entire policy system and discussing the impact of this policy on women.In the context of the implementation of the two-child policy, many women will choose tohave a second child. Under these circumstances, discrimination in the workplace is of greatconcern to women. Numerous women worry that they will face greater difficulties in theworkplace if they have a second child.Employment is a key factor for social and political stability. The protection of female laborrights should balance the relationship among women, employers and the overall interests ofsociety. However, business is not a charitable institution and pursuing capital and profit is its288 Zeng, supra note 1 at 1935.289 P J Cheng & T Duan. “China’s New Two-Child Policy: Maternity Care in the New Multiparous Era.” (2016)123:S3 BJOG 7 at 37.290 Li Fei, Research on the Legal Guarantee of Female Employment Under the Policy of “Universal Two-ChildPolicy (Master thesis, Shijiazhuan: Hebei University, 2018) 37.95core mission.291 Therefore, it is unrealistic to expect companies to actively pay attention to thelabor rights of women absent legislative requirements to do so. Additionally, it does not meet therequirements of social fairness and justice if enterprises bear the economic costs alone broughtabout by the two-child policy. As a result, China should attach importance to the protection of thelabor rights of women in the workplace. However, the current legal system does not adequatelyprotect female rights.In English it is often said: rights with remedies are meaningless. Judicial relief is the lastline of defense for the rights and interests of female workers. When the rights and interests offemale workers are infringed, they have the right to safeguard their own rights and intereststhrough accessing legal remedies. If women in the workplace are to be truly protected, it isnecessary to reform the law. As a result, if China adopts a person anti-discrimination rule, one ofthe most critical elements would have to be successful solutions. Developing individual anti-discrimination law will solve some of the problems in the existing legal system, which, asdiscussed in the previous chapters, includes the lack of a clear definition, a lack of proactiveimplementation and specific agencies responsible, and the burden of proof.As established earlier, there is no clear definition of discrimination in China nor a single orcomplete code for addressing gender discrimination in the workplace. Second, there is no realmechanism to hold employers accountable when they do discriminate against women in theworkplace. As a result, there is no deterrent effect and employers may ignore the law or act withimpunity. Third, because discrimination can be relatively covert, and often relies on thetestimony of parties, it may be difficult for employers to gather sufficient evidence and determinewhen discrimination has occurred. This necessitates a discussion of whether there should be analtered standard or burden of proof in discrimination cases. Fourth, and finally, there is nospecialized or dedicated law enforcement or supervisory body to address workplacediscrimination in China.In the previous chapter, I engaged an analysis of anti-discrimination law and disputeresolution processes in Canada, with a view to identifying best practices and recommendations toimprove the system in China. In this chapter, I will draw on the findings of the previous chapterto propose recommendations to improve the laws and legal system protecting women from291 Juejing Tian & Bin Luo. “Analysis on the Protection of women’s labor Rights and Interests under theBackground of Second Child Policy.” (2014) 8 LR 96 at 96.96discrimination in the workplace in China. I discuss three distinct elements of an improved anti-discrimination legal system in China, one that has the potential to provide meaningful redress forworkplace gender discrimination. The first proposed change is a new workplace anti-discrimination law in China. I discuss three important issues that should be clarified in a newanti-discrimination law: the definition of discrimination and protected grounds, classification ofdiscrimination, and reform legal process to address and remedy workplace discrimination. I willdiscuss how to complement the existing blankness in law in China. The second recommendationis to establish a dedicated legal administrative enforcement body. I discuss two different agenciesdue to comparative study between Canada and China: anti-discrimination commission and anti-discrimination tribunal. The third recommendation is to improve public education aboutworkplace discrimination, and particularly gender discrimination.5.1. Establishing a NewWorkplace Anti-Discrimination Law in ChinaIn China, Article 3 of the “Labor Law” stipulates that “workers enjoy the right to beequally employed and choose occupations”.292Additionally, Article 12 stipulates that “as for theemployment of workers, workers shall not be discriminated against because of the differences inethnicity, race, gender, and religious beliefs”.293 These laws would ostensibly extend protectionagainst discrimination to workers. However, these provisions are currently only declarations ofprinciple, which have little effect on the actual conduct of litigation and need to be supplementedby more detailed legal provisions. Moreover, these provisions can neither benefit the personexperiencing discrimination nor make the infringing defendant be punished for breaking the law.Therefore, they cannot play a practical role in deterring conduct nor protecting workers.294China should formulate a specific “Employment Anti-Discrimination Law.” There shouldbe a special law on the issue of anti-discrimination. Discrimination issues have many uniquecharacteristics such that they should not be just addressed through a provision of labor law. Inaddition to embodying the priority of protection for workers, this new law should implement theconcept of substantive equality in employment. Therefore, separate legislation is more conduciveto the realization of the basic idea of anti-discrimination in employment.292 LLPRC, supra note 106 at 3.293 Ibid at 12.294 Kewei Dong, The Need for a Legal Boost in the Fight against Employment Discrimination (Beijing: ChinaReform News, 2006) 26.97As discussed in the previous chapter, Canada has specific anti-discrimination laws. At theconstitutional level, the Charter of Rights and Freedoms protects equality, non-discriminationand affirmative action.295 The Canadian Human Rights Act and the human rights laws of eachprovince specifically address employment discrimination.296 The Canadian Human Rights Act,and its provincial counterparts, prohibits both direct and indirect discrimination. Protectedgrounds of discrimination are quite broad and include race, nationality or ethnic origin, color,religion, age, gender, sexual orientation, marital status, family position, disability and pardonedcrimes.297 The anti-discrimination laws and practical experience of Canada can provide Chinawith examples in formulating its anti-discrimination laws.China should introduce a law which specifically targets gender discrimination in theworkplace. Specifically, China should develop a clear legal definition or concept of“discrimination” and clarify the protected grounds of discrimination, including in relation to sex,gender, pregnancy, and family status. Second, China should consider adopting language to giveeffect to the various classifications of discrimination (i.e., direct, adverse effects, systemic) andensure each kind of discrimination is captured by the law. Third, China should reconsider theburden and onus of proof in workplace discrimination complaints. Rather than adopting thetraditional civil litigation method, the burden should be divided between employees, who wouldbe required to establish that they experienced discrimination, and employers, who would berequired to establish a “reasonable demand” or reason for their behaviour that excuses thediscriminatory conduct.5.1.1. Defining discrimination and protected groundsChina has not articulated a definition of discrimination, nor has it distinguished betweendirect and indirect discrimination. This limits the ability of employers to effectively regulateworkplace behavior, and the ability of women employees to seek legal remedy when they havebeen discriminated against. Under existing laws in China, the Constitution and other laws andregulations stipulate equal rights for men and women, including labor rights, rest and leave, laborprotections, and the right to participate in labor insurance. The Employment Promotion Lawfurther prohibits discrimination in employment, including in relation to hiring and conditions of295 Constitution Act, 1982.296 Canadian Human Rights Act, RSC 1985, s 3.297 Ibid at 3.98work.298 However, such general provisions are too vague, resulting in weak application inpractice.Discrimination occurs when an individual or community is treated unfairly on the basis ofan identification trait, such as ethnicity, age, or impairment. Usually, these features, referred to asgrounds, are covered by anti-discrimination legislation, such as the Canadian Human RightsAct.299 The Canadian Human Rights Act prohibits discrimination on a number of grounds,including ethnicity, national or ethnic origin, color, faith, age, sex, sexual preference, genderidentification or speech, marital status, family status, genetic traits, and impairment.300 It has alsobeen clarified, through case law, that discrimination based on pregnancy or child-birth shall bedeemed to be discrimination based on sex. The right to equal treatment without regard for sexincludes the right to equal treatment without regard for the fact that a woman is, was, or maybecome pregnant, or has had a child.The proposed Employment Anti-Discrimination law should clearly proscribe employmentdiscrimination, including on the basis of sex, gender, pregnancy, and family status. Moreover, itsdevelopment should be attentive to broadening the scope of application of the law, capturing allrelevant forms, such as direct and indirect, and grounds of discrimination that might occur inemployment and at all relevant stages, including recruitment, active employment, leaves andvacation, benefits and retirement.301 In addition, the development of the law should be attentiveto ensuring effective protection of workers under the law, through extension of effectiveremedies, adequate legal processes, and broad application of the law. Further, the proposed lawshould consider all enumerated grounds and relevant categories to be included, and should beprecise and specific in its wording.As an example, the employment anti-discrimination law may state, “based on reasons ofethnicity, race, religion, gender, origin, body, health, age, or other grounds, any distinction,exclusion, or preference in action taken in respect of workers, including that which has the effectof canceling or damaging their employment, remuneration, rest and vacation, labor safety andhealth protection, employment services, social insurance and welfare, or other aspects of298 EPLPRC, supra note 107.299 Canadian Human Rights Act, RSC 1985.300 Ibid at 3.301 Maoli Song, Research on Several Issues of Anti-employment Discrimination (Master theis, Shanghai: East ChinaUniversity of Political Science and Law, 2008) 37.99employment, constitutes discrimination.”However, when expanding the scope for protection against discrimination, it is importantto also pay attention to exceptions, and to allow for reasonable differences and certainrestrictions where they are based on appropriate and legitimate reasons. The statute agrees thatthere are times where a restriction on human freedom is justified.302 If the employer establishesthat the discriminatory criterion is a necessary condition of employment. The norm or regulationwill therefore be nondiscriminatory. This circumstance is referred to as a bona fide occupationalnecessity. Male apparel manufacturers, for example, could lawfully market only for male models,while female models would be unable to model men's clothing as planned. The boss mustdemonstrate that accommodating the workers will be impractical without causing unreasonablehardship.303 The Supreme Court of Canada issued theMeiorin decision in 1999, which providesworkers with guidance on determining if a specific occupational qualification is fair andjustifiable and therefore a bona fide occupational requirement.3045.1.2. Classifying discriminationDiscrimination in the workplace should be divided into categories to account for thevarious forms that discrimination takes. The current laws in China appear only to prohibit directdiscrimination. The lack of explicit attention given to indirect discrimination, in particular,creates a significant loophole in available legal protections. Since direct discrimination isexplicitly prohibited, employers are more likely to choose indirect discrimination methods thatare more covert and difficult to prove. For example, companies often only collect resumes duringthe recruitment process, do not contact female applicants for interviews at all, or control internalprocesses to restrict the recruitment of women. In addition, companies may assign poorer jobs topregnant women. These indirect methods are more widespread problems. Employers may useloopholes in existing laws to exclude female applicants or employees while protectingthemselves from legal sanctions. Canada’s laws appear to reflect a more in-depth understandingof modes of discrimination. It not only prohibits direct discrimination but also indirect302 “Bona Fide Occupational Requirements” (5 February 2010), online: Alberta Human Rights Commission<>[].303 Ibid.304 Ibid.100discrimination and systemic discrimination. Indirect prejudice acknowledges that suchprocedures, regulations, or requirements that seem to be benign on the surface can have anunjustifiable or substantial detrimental effect on individual individuals or cultures in reality.305306307308 Discriminatory words are usually not published directly, and people usually do notexplicitly cite stereotyped views as a reason for their behavior. For example, in the process ofrecruiting a sales executive for a company, the human resources department proposes specificrequirements. These requirements are gender-neutral, but only men meet the applicationrequirements. This may constitute indirect discrimination. Relatedly, systemic discrimination hasbeen defined as “practices or attitudes that have, whether by design or impact, the effect oflimiting an individual’s or a group’s right to the opportunities generally available because ofattributed rather than actual characteristics.”309At present, although it has been stipulated in China's laws that direct discrimination isprohibited, indirect discriminations has not clearly been proscribed, and appears to remain arelatively common practice. As a consequence, China may learn from Canada to definecategories of discrimination, divided into direct discrimination and indirect discrimination, andto incorporate indirect discrimination explicitly under relevant laws.5.1.3. Reforming legal processes to address and remedy workplace discriminationIn China, labor cases adopt the general standard of proof in civil litigation, which requiresthat the wronged party (employee) must provide the evidence to establish their case.310 Typically,one party in an employment discrimination case is an employee (or job seeker) whoseemployment rights have been infringed, and the other party is an employer. The status of the twoparties is very different and the employee (job seeker) is obviously in a disadvantaged positionbecause it is difficult for them to obtain strong evidence to prove the discriminatory behaviour of305 Bethany Hastie, “The Inequality of Low-Wage Migrant Labor: Reflections on PN v FR and OPT v PresteveFoods” (2018) 33: 2 Can J Law Soc 243 at 246.306 Colleen Sheppard, Inclusive Equality: the Relational Dimensions of Systemic Discrimination in Canada(Montreal: McGill-Queen’s University Press, 2010) 13.307 Bob Hepple, “Equality and Empowerment for Decent Work,” (2001) 140 Int’l Lab Rev 5 at 7.308Adelle Blackett and Colleen Sheppard, “Collective Bargaining and Equality: Making Connections,” (2003) 142Int’l Lab Rev 419 at 426.309 Canadian National Railway Co. v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114 at 1138.310 Hongli Ren, On the Legal Guarantee of Women’s equal Employment Right (Master thesis, Chongqing:Chongqing University, 2012) 37.101the employer.311As such, requiring the employee to shoulder the burden of proof is unfair.In Canada, the human rights complaints process is clearly divided between the complainantand respondent. First the complainant must prove prima facie discrimination. Once acomplainant has established prima facie discrimination, the respondent may establish that thediscriminatory treatment was justified in order to excuse them from liability.312 For example, if acomplainant claims she was not hired for a job because she is a woman, the employer maypresent evidence that the complainant wasn't qualified for the job. This is called a bona fideoccupational requirement [BFOR] in Canada. In Canada, the employer needs to prove that theaccused actions are based on required needs instead of discriminating behavior. Moreover,human rights tribunals in Canada tend to adopt relaxed evidentiary standards as compared tocivil courts, and adjudicators tend to play a more active role in the process, ensuring that relevantinformation is brought to their attention. China may consider how it could similarly shift theburden of proof and relax evidentiary standards in workplace discrimination cases to betterprotect and advance the rights of workers.To accomplish these aims, China could alter the burden of proof in employmentdiscrimination and/or gender discrimination cases. A complainant/employee could submit primafacie evidence to establish a differential treatment (such as in respect of hiring or advancement).At this point, the burden of proof could be transferred to the defendant/employer to provideevidence and reasons to establish a legitimate reason for the treatment and to alleviatethemselves from liability. If the defendant/employer cannot establish a legitimate reason for thetreatment, the complainant/employee would be found to have been discriminated against. Underthe employment anti-discrimination law, available defences or excuses to liability should beclearly stipulated, as well as the conditions or elements to meet those defences. Additionally,China’s anti-discrimination law should provide for legitimate grounds and defenses that are notconsidered discrimination. It is irrational and unrealistic to impose a complete ban on alldifferential treatment in employment without regard to reality. As a result, it shall establishlegitimate grounds such as bona fide occupational qualifications, affirmative action programs,etc., to balance the interests of employers and job seekers. Defences or excuses from liability311 Ibid at 37.312 Benjamin Oliphant. “Prima Facie Discrimination: Is Tranchemontagne Consistent with the Supreme Court ofCanada’s Human Rights Code Jurisprudence.” (2012) 9 JL & Equal 33 at 33.102should consider whether the treatment was essential, reasonable, and whether it represented abona fide occupational requirement or concern for the enterprise. They will balanceresponsibility between the two parties to the dispute. It will reduce the complainant’s difficultiesin establishing proof of discrimination without allocating too much responsibility to the employer.In Canada, after an employee establishes that they have been unfairly treated, such as inrespect of recruitment, the employer is required to submit to the court specific personnel criteria,as well as the requirements and nature of the job, to justify the practical necessity of suchrecruitment requirements, the underlying reasons for the differential treatment of the personconcerned and the extent to which the person concerned or the employer would be harmed if thedifferential treatment were not applied. For example, drivers must have an acceptable vision andan appropriate driver’s licence. This reasonable shifting of the burden of proof provides the courtwith a comprehensive view of the work. In addition, by having the parties identify the basic factsof the case and the specific nature of the job as submitted by the employer, the court is able tocompare and analyze the actual situation of the individual with the conditions of the job, whichincreases the accuracy of the decision. The determination of whether unequal treatment is theresult of an unfounded subjective judgment, based on the characteristics of the position, reducesthe burden of litigation on the parties and ensures that the remedy is timely and accurate.313 Thismethod of distribution in respect of elements of the case and burden of proof is conducive toreducing the requirements for admissibility, making judicial protection of equal employmentrights more efficient. This is also in line with the current development of the rule of law, “toimprove judicial reform, to form a factually binding judgment in favor of the rights and interestsof the victims”.5.2. The Need for a Dedicated Legal Administrative Enforcement BodyThis section discusses the establishment of a dedicated administrative body in China tooversee the employment anti-discrimination law, legal process and enforcement, and engage ineducation and awareness raising. Currently, China does not have a dedicated body to deal withthis issue. As a result, government agencies may shirk their responsibility or shift the burden toanother agency to address, creating inefficiencies and ineffectiveness. Furthermore, many313 Guangpeng Chen, The Judicial Practice of Sex Discrimination in Employment-- Based on the Comparative Studybetween China and the United States(Master thesis, Beijing: China University of Political Science and Law, 2019)26.103administrative agencies may be under the jurisdiction of local governments and will opt donothing out of a desire to avoid trouble. Together, these factors suggest that China would benefitfrom an independent institution like the Canadian Human Rights Commission, which is givenindependent authority and can proactively address discrimination issues.In each province and at the federal level in Canada, Human Rights Commissions play asignificant supporting role in addressing sex-based discrimination in employment. In addition,related bodies, such as Pay Equity Commissions, may address specific equality issues. Eachprovince in Canada has a designated Human Rights Commission, though the function of thesecommissions varies across provinces. In provinces that utilize a direct-access complaints modelto the Human Rights Tribunal, such as BC and Ontario, the Commission will not be directlyinvolved in handling cases or complaints. Human Rights Commissions in Canada alsocommonly develop and provided training and educational resources.As stipulated in the existing laws and regulations in China, job seekers can seek assistancefrom several organizations when they feel they have been discriminated against. The first is thecompetent administrative departments for labor of people's governments at central and provinciallevels, which is stipulated in Paragraphs 1 and 2 of Article 73, and Article 77 of the LaborLaw.314 The administrative department of labor is the Ministry of Human Resources and SocialSecurity and its agencies at all levels. The State Council's labour administrative branch is incontrol of national labour policy. Labor function within their administrative areas is overseen bylabour administrative offices of local people's governments at or above the county level. Thesecond is "a variety of individual people's governments at all tiers and pertinent branches," whichrefers to local governments.While these organizations in China may ostensibly solve problems related todiscrimination in employment, there are quite a few limitations in practice. First, despitestipulation in legal text, there is a lack of clear responsibility assigned within the identifiedorganizations and in relation to responding to employment discrimination issues.315 Words suchas “relevant competent department” and “superior organs” do not clearly signal to workers to314 LLPRC, supra note 106 at 73,77.315 Ziji Zhou, Research on the Legal Guarantee of Employment Equality (Master thesis, Shenyang: NortheasternUniversity, 2010) 26.104whom they should turn for help when they have been discriminated against.316 This maycompound the stress experienced by the worker due to the discrimination they experienced.Second, the lack of clarity about who to approach may result in many workers simplyabandoning their complaint.317 Over time, this may even erode confidence in the legal systemand government more generally. Third, the organizations mentioned above are all subordinate tothe central government. Internal delegation of responsibility and supervision of duties may limitthe reliability and accountability of such departments in respect of addressing employmentdiscrimination.Establishing a dedicated legal administrative enforcement body like the Commission isbetter to the enforcement of anti-discrimination law. An external, independent body to overseethis area of complaint, pursuant to specific laws, may work to create greater reliability andaccountability, while closing off legal loopholes. A dedicated administrative body would take uptwo primary roles: human rights commission and human rights tribunal. A human rightscommission may offer advantages, The Human Rights Commission can hire professionals tomediate or provide a free consultation, which is more flexible and costs less money than aregular lawsuit. A Commission-like body may further be able to provide free or low-costconsultation, accept applications, administer mediation, proactively inspect workplaces, andengage in research and policy analysis and reporting. Complementing the role of a commission, ahuman rights tribunal could act in a coordinated fashion to hear legal disputes.5.2.1. Anti-Discrimination CommissionWhere there is a lack of legal supervision and regulation of liability, the deterrent effect ofthe law will be reduced. Conversely, the greater the legal supervision and accountability forviolations of the law will improve compliance in practice, increasing the effectiveness of thelaw.318As supervision is an important link in the implementation of the legal system, a dedicatedadministrative body to supervise the administration of the law is significant.In terms of specific execution, an anti-discrimination commission may have the followingfunctions: (1) receiving complaints from the persons discriminated against, mediating casesrelated to gender discrimination, and providing free legal consulting and help for employees who316 Ibid at 26.317 Ibid at 26.318 Ren, supra note 312 at 37.105have been discriminated against; (2) actively investigating whether identified enterprises haveengaged in discrimination; (3) accepting applications, organizing informal negotiations withenterprises on behalf of the employees discriminated against; (4) creating proposals andrecommendations for practices and policies to reduce and eliminate discrimination in theworkplace; (5) regularly conducting discrimination surveys to the general public, drafting surveyreports on discrimination and making them publicly available; and, (6) putting forwardcorresponding law amendment proposals based on identified deficiencies in existing anti-discrimination laws. In terms of staff composition, the members of the commission ought to berequired to have certain professional knowledge regarding anti-discrimination law and issues. Inaddition, a certain number of enterprise representatives, laborer representatives, trade unionrepresentatives, legal experts and labor experts would best enable dialogue and work thataccounts for various different perspectives.3195.2.2. Anti-Discrimination TribunalIn addition to an anti-discrimination commission, China may also consider setting up atribunal specialized in discrimination cases, which is independent of the commission and plays adifferent role in resolving discrimination-related problems. Specifically, a tribunal could act as adispute resolution body in place of a court, with a direct-access model like that which exists inBC and Ontario’s Human Rights Tribunals. A worker who believes they have been discriminatedagainst could make an application directly to the tribunal, or seek mediation before the tribunalthrough the commission. Human rights court of Canada is an inseparable constituent of anti-discrimination. If China intends to establish a human rights court which offer more legal aidservices for victims, not only designating full-time lawyers but also using Commission Councilcan be taken into consideration.The tribunal would have the power to summon witnesses to testify. The judgment made bythe commission would be legally binding, and remedies for discrimination that the commissioncould award should include: an apology, compensation for material loss or mental impairment,ordering employers to provide employment opportunities for employees who are deprived ofwork, and correcting or eliminating the discriminatory policy or practice.319Yue Yang, Research on the Equal Protection of Women’s Employment Rights under the “Two-child Policy”(Master thesis, Shanghai: Shanghai Normal University, 2019) 26.106It is necessary to reduce discrimination not only through the creation of legislation but alsothrough effective execution of it. Through setting up a commission and tribunal specialized indealing with discrimination-related problems, China may not only realize goals of non-discrimination in the workplace, but bring greater attention to the ways in which women facediscrimination in employment and society more generally. This is beneficial to establishing amore complete system of law to address discrimination.5.3. Improving Human Rights Education and TrainingAdvancement of education, knowledge and training regarding discrimination is a necessarycomplement to legal reform. China could undertake several initiatives to improve awareness,knowledge and training about discrimination to reduce gender discrimination at work, including:induction training, regular presentations, and, providing special training for women returning tothe workplace to improve their skills.Government must take a leading role in education and awareness building to aid in thesuccess of this goal. For example, in Canada, Human Rights Commissions, and otherorganizations, provide various forms of education and training programs for employers,employees, and the general public, to increase awareness and education about discrimination,and equality issues. Some of these initiatives also provide education and information about legalrights and processes.Local governments in China could similarly undertake initiatives to popularize knowledgeand awareness of discrimination issues and anti-discrimination law, as well as available legalrights and processes to guard against and remedy discrimination. In particular, government couldcreate induction training programs for new workers to educate themselves on their rights andemployment discrimination issues, and complementary training for employers about theirobligations and liabilities. In addition, governments could develop and provide specializedtraining for women who are returning to work following childbirth, to facilitate a smooth returnto work and ensure they remain skilled and competitive in the labor market. Moreover, mentalhealth resources for women could be extended in recognition of the high workload and stressorsthey face as both paid laborers and, often, unpaid primary caregivers. Finally, governments coulddeliver regular lectures on workplace discrimination either in person or online, inviting expertsand scholars in relevant fields to disseminate knowledge and educate the general public. Such107lectures could be available not only in workplaces, but also universities and public settings.Most significantly, the government should play a more active role in education andawareness building on the issue of employment discrimination against women. As this issue hasgained more traction in China in recent years, it requires a greater response and dedicatedresources, including in respect of education and knowledge-building. This will, in turn, creategreater knowledge and awareness for workers of discrimination, their rights and available legalprocesses and remedies if they believe they have been discriminated against. In addition togeneral initiatives, the government should further consider specialized projects and policies forpregnant women in light of the move to the “two-child policy” and noted discriminatoryexperiences women have vis-à-vis family planning, pregnancy, and childbirth.5.4. ConclusionDespite changes in women's status, gender disparity seems to be a prevalent issue today.The adoption of China's "universal two-child" scheme is expected to have a detrimental effect onfemale jobs and sexism experiences. This necessitates the improvement of the regulatoryframework in order to further secure women's workplace rights in view of this current legislation.This study discussed how the "universal two-child scheme" has affected women's rights and islikely to intensify existing gender inequality against women in the workplace. I have alsodiscussed how current labor and jobs legislation and the judicial system have struggled toadequately defend women from workplace discrimination and also limited their capacity toeffectively obtain civil redress when they have been discriminated against. I discovered thatcurrent policy is ambiguous and lacks adequate concrete measures for compliance andaccountability; that there is a dearth of specialized law enforcement agencies; that there areinadequate sanctions to discourage employers; that there is a dearth of consistent scope for lawenforcement roles and supervisory responsibilities; and that there are insufficient administrativeforces.I examined Canada's response to job discrimination and gender discrimination and,building on that study, made some proposals in this chapter for reforming both the existinglegislation and administrative policies in order to change the situation in China. 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