Employees in China widely complain about age discrimination, and the government is taking action to improve employment opportunities for older workers. Therefore, businesses need to take a close look at the law on age discrimination in China, which in the current cultural climate affects workers between age 35 and retirement age, particularly those approaching retirement. The so-called “Curse of 35” is already a topic of major public concern and the subject of ongoing legislation in China.
In this article, we’ll examine China’s current policy and legislation on age discrimination, a topic traditionally overlooked due to judicial deference to business judgment. Then, we will cover the law prohibiting age discrimination and look at specific court precedents to find out how judges actually apply the law.
While China is a civil law system with no stare decisis precedent that is, in theory, governed totally by regulations, there is nonetheless robust judge-made law that reaches equitable decisions even in the absence of highly specific regulations, and that now prohibits age discrimination.
Contents
Policymakers’ Commitment to Ending Employment Discrimination
How Chinese Law Understands Employment Discrimination
Judicial Precedents Have Penalized Age Discrimination
How Businesses can Mitigate Legal Risk
Chinese Policymakers Have Expressed Strong Commitment to Ending Employment Discrimination
In a 2023 publication, China’s economic development agency, the NDRC, recommended government bodies “treat age discrimination as unlawful employment discrimination,” and included the opinion of an economist that consults for the agency:
“Experts we consulted with said that age discrimination in employment hurts workers, employers, and society overall. Associate Professor Zhang Yanhua of the China University of Labor Relations said that age discrimination is unfair and hurts long-term career development. Hiring discrimination also hurts business because it will shut the door on genuinely capable hires, and once these workers are kept out of the workforce, the labor pool will contract, leading to shortages and increased hiring costs.
Society is also being affected by the falling demographic dividend and aging population. Thus, it stands in the way of rationally developing and using human resources and will result in waste of human resources.” (CBL’s translation)
In September 2024, the State Council issued an administrative regulation, the Gradual Retirement Age Raise Procedures, intended to increase the age at which retirement benefit payouts occur and enlarge the labor pool, thereby addressing the falling labor participation rate. On this point, the Procedures at § 5 provide that the administration shall “facilitate youth entrepreneurship and improve job opportunities for older workers and support for chronically unemployed persons. Improve governance for preventing age discrimination and incentivize employers to utilize a greater number of older workers.”
Note that in Chinglish versions, “Procedures” are often called “Measures” and “Employment Opportunity” is called “Employment Promotion,” but our articles use American English translations. Therefore, the notion of job opportunities for people will be referred to as “employment opportunity” instead of “promotion.”
The Procedures echo how initial drafts of 2007 Employment Opportunity Act included provisions against age discrimination, but legislators removed age from the protected classes in the enacted law. Race, gender, disability, and religion were retained as protected classes. Also in September 2024, the State Council’s Central Committee issued an Opinion on “Executing the High-Quality Full Employment Strategy,” which includes an administrative directive to “ensure equal employment rights: […] eliminate all unreasonable employment restrictions or discrimination including without limitation those based on identity, gender, and age, thereby improving social mobility.”
How Chinese Law Understands Employment Discrimination
Chinese social psychologists have characterized discrimination as unwanted derogatory behavior towards social groups that lacks a legitimate reason. In Chinese employment opportunity law, a legitimate reason for discrimination is a characteristic that has predictive validity for job performance, and where an employer acting on this basis to make employment decisions has effective information collection and decision-making processes. Affirmative action policies that treat people differently in order to achieve social justice are also considered “fair.”
China bases its anti-discrimination principles on the International Labor Organization’s Convention No. 111, the Convention concerning Discrimination in Respect of Employment and Occupation, 1958, which China ratified in 2005. As China interprets this convention, member states must eliminate disparate treatment detrimental to workers if based on a protected characteristic, unless there is a legitimate reason. Legitimate reasons may include occupational requirements or policies that seek to achieve greater social justice as described above. Note that due to language differences arising from translation, there is significant discrepancy between how China understands ILO Conventions and how labor organizations in Europe do. Thus, the adopted convention should be understood in its Chinese language context.
In domestic statutes, the China Employment Opportunity Act provides only that, “workers may not be discriminated against for employment on the basis of factors including without limitation, ethnicity, race, sex, or religion” and does not mention age discrimination. The key to understanding this statute is the phrase “without limitation,” indicating that the list is non-exhaustive. The Supreme Court interpreted the same phrase in its in its Guiding Case No. 185 (2022), an equal opportunity employment case. The Court characterized the issue as whether “an employer recruiting staff has a legitimate reason for disparate treatment against workers when discriminating on the basis of geographic origin, gender or other factors lacking an inherent connection with the job role.”
On the facts of the case, the plaintiff was rejected almost instantly after applying via an online job platform, where she “submitted a resume for a job that required personal information including name, sex, date of birth, household registration location, and current city of residence.” The defendant admitted to rejecting the plaintiff based on geographic origin. The court found for the plaintiff, and in its reasoning expanded the Employment Opportunity Act to encompass age discrimination.
We’ve translated the relevant paragraph from the opinion below:
“The text of the PRC Employment Opportunity Act Section 3 provides that discrimination based on ethnicity, race, sex, or religion is prohibited, but the statute includes the words without limitation. These words mean that the statute is providing a non-exhaustive list; the law holds that in addition to these four illegitimate reasons for disparate treatment, there are also other reasons that have the same characteristics and therefore are prohibited by law. When determining what reasons are encompassed by the words without limitation, a key consideration is whether the employer made the decision based on qualifications obtained through their own efforts that are closely connected to the job role, such as the employee’s specialization, educational background, work experience, and job skills, rather than immutable traits unrelated to the job, such as household registration location, identity, geographic location, age, appearance, ethnicity, race, or religion. The latter are illegitimate reasons for discrimination prohibited by law.”
As can be seen, the statutes give Chinese courts all the authority they need to establish judge-made law to prohibit age discrimination and, as we’ll see in depth below, the lower courts began to establish precedent against age discrimination as early as 2017. Judges in China generally believe that illegitimate employment discrimination infringes upon the rights of the person and of human dignity, considering it fundamentally debasing.
What might be acceptable discrimination that is not debasing? Consider, for example, a recruitment policy against overqualified candidates, where only vocational degree holders are permitted to apply and bachelor degree candidates are excluded.
Chinese employment opportunity law works a bit differently from that of other countries. Particularly, discrimination prohibitions only address recruitment and not salary, promotions, training, and termination. Judges also have a lot more flexibility than in other jurisdictions, in that they can deem any characteristics, including those not explicitly falling under a statute, as illegitimate grounds for discrimination under Chinese law. Moreover, China does not have an independent judiciary, which means that central government leadership priorities can directly influence rulings. To understand the outside pressure judges are under to rule against age discrimination, we should look at how China’s lead economic policymakers have begun to signal that they consider age discrimination to be a major threat to the economy overall.
Judicial Precedents Have Penalized Age Discrimination Under Existing Legislation
As noted above, China’s statutes have never directly addressed age discrimination. However, courts have held employers liable for unlawful age discrimination even in cases predating the recent Supreme Court case.
Challenges to age discrimination began appearing in the Chinese court systems around 2005, particularly regarding government job requirements that imposed maximum age limits for applicants at the time. In those early cases, the courts typically dismissed the claims on summary judgment on the basis of a lack of subject matter jurisdiction over government personnel management.
Nevertheless, courts ruling on private sector disputes have sometimes found unlawful employment discrimination, but would often reject claims, giving deference to the employer’s “freedom to do that which is not proscribed by law.”
In Guangdong Case 01-cv-16911 (2017), the employer’s policy required management employees to step down after a certain age, and the plaintiff was transferred to another job role on this basis. The court held that the transfer was not unlawful but rather a legitimate exercise of the employer’s freedom to do business.
To the contrary, the same court system prohibited age discrimination in Guangdong Case 0183-cv-901. In this case, the employer’s job advertisements required bus drivers be between 18 and 45 years old. The court, however, found that the local public safety department had established the maximum age for bus drivers at 60. The court observed that the employer’s standards were much narrower than the local law requirements, and therefore prejudiced the plaintiff and other similarly aged persons’ employment rights. While the judges in each case did not explain their reasoning in great detail, the cases can be reconciled in that both considered whether there was a legitimate reason for the age discrimination.
Also note that, in addition to age discrimination claims, Chinese law includes provisions that protect the interests of older workers. In particular, the Employment Contracts Act §42(e) prohibits no-fault termination or layoffs of certain older workers. Specifically, it covers employees who have both worked for the employer for over 15 years and are within five years of retirement age.
What to Expect from Chinese Age Discrimination Law and how Businesses can Mitigate Legal Risk
There is currently a lack of clarity on what constitutes age discrimination under Chinese law. For example, in the above case, an employer could lawfully set age caps and remove employees from management positions. However, in many countries such as the United States, an arbitrary age cap like this would be illegal discrimination.
While China’s stance against age discrimination is now clear, the statutes and courts have yet to answer numerous important questions about age discrimination. In particular, whether subjective intent or discriminatory animus will factor into determinations, what the burden of proof is, whether disparate impact or pattern and practice constitute discrimination, and what qualifies as a legitimate basis for age discrimination.
Moreover, the government may choose to emphasize carrots over sticks. The State Council Administrative Procedures and its policy opinion indicate an interest in improving employment opportunities for older workers through subsidies rather than penalties, thus an employer that has implemented ESG or DEI policies and improves their hiring and retention of older workers could be eligible for future subsidy programs. Multinational companies with existing programs in other countries may consider looking at extending these to their China operations.
Businesses can expect that additional regulations targeting age discrimination will be released in the coming years, which will likely follow internationally accepted best practices for regulation. Businesses should prepare by proactively ensuring that their China operations take steps to establish recruiting practices and a corporate culture that will comply with these laws in advance. During the recruiting process, ensure that applicants are not required to provide their age, and make sure that hiring managers are basing their decisions solely on resumes and job qualifications.
Do an employment law audit of all documents used for recruitment and ensure that policy and processes are set up to prevent age discrimination. Talk to recruiters to ensure that they will cooperate with these requirements. It’s also worth noting that China’s current population and workforce are aging rapidly. Ensuring that your hiring managers in China use evidence-based approaches to objectively evaluate job qualifications for potential applicants will yield better results than a strictly hands-off approach.
Conclusion
Age discrimination is a hot topic in Chinese society today, with a variety of social factors militating in favor of a clean break from the past. Notably, the Supreme Court ignored the Employment Opportunity Act’s legislative history and tradition and, in 2022, asserted that China has always had a law that specifically prohibits age discrimination. This position is consistent with State Council opinion urging an all-of-government approach to improve older workers’ labor force participation, in part by preventing age discrimination. While the current age discrimination law in China is very much unsettled, businesses should proactively investigate best practices and prepare for increasing government protections for older workers.