This summary of age discrimination law in China has been prepared by Fangda Partners, the Ius Laboris affiliate for China: www.fangdalaw.com
OVERVIEW
There is no law on age discrimination in the People’s Republic of China (PRC). Age and other types of discrimination are generally prohibited by laws and regulations at various levels. In practice, age discrimination draws little attention in the area of employment, and employers have wide discretion in setting out the age threshold for any job positions, as long as it is not against child labour protection laws. Outside of the area of employment, age discrimination usually draws the public’s attention to the general social treatment of old people.
Overall, age discrimination in PRC still remains a premature concept both legally and socially, though the general awareness of it and any of any other factors upon which discrimination could be based, has been gradually increasing along with the progress of people’s economic wellbeing.
WHO'S COVERED?
Currently, most discussions on age discrimination are mainly related to employment.
WHAT ENFORCEMENT/REMEDIES EXIST?
An employee or job candidate who is a victim of age discrimination has the right to file a civil lawsuit against the employer. Having said that, in practice, it is difficult, if not impossible for the plaintiff to succeed in such a lawsuit mainly because (i) the plaintiff faces difficulties in demonstrating that he/she was discriminated against by the defendant, and (ii) there is no legal provision or practical guidance setting out the specific elements for the determination of age discrimination.
Criminal or administrative sanctions are not applicable for age discrimination.
HOW COMMON ARE CLAIMS?
Claims concerning age discrimination are rare in China, mainly because of the lack of specific legal protection and the lack of awareness.
RETIREMENT AGES
Currently, the legal retirement age for men is 60 and 50 for women or 55 for employees with managerial or technical roles.
Extension of the retirement age has been under frequent discussion in recent years, there is however no clear schedule as to when a new law will be enacted.
INTERESTING CASES
In early 2005, Mr. Jiahai Liu sued the Justice Department of the Guangxi Zhuang Autonomous Region for age discrimination. Mr. Liu registered himself for the public service examination with the aspiration of passing it and becoming a public servant (government employee) of the said Justice Department, but his registration was cancelled as he was older than the set age threshold. With discontent caused by the fact of not being able to be a public servant, Mr. Liu filed a lawsuit against the Justice Department. Though there is really in question in regards to the adjudication of the case (the Court dismissed the case on the ground that Mr. Liu sued the wrong entity, as the age threshold was set by the Human Recourse and Social Security Department rather than the Justice Department), it is the first publicly reported case where age discrimination served as the cause of action.