Abstract

This article discusses the research methodologies employed in probing into employment discrimination issues in China.  It examines the three current research approaches, namely, the “Chinese Facts” approach, the “Foreign Law” approach and the “Advanced Foreign Law” strategy.  Then, the article concludes that each of the current strategies has its own limitations and suggests a new strategy that stresses the importance of using a theoretical study to resolve real issues in real life and incorporating local resources to do so.    


I. Introduction

Discrimination in the Chinese workplace has been well documented.  However, China’s anti-discrimination law is still in the embryonic stages of development, both in theory and practice.  Studies from legal, social, and philosophical perspectives on topics such as the definition of discrimination, the wrongfulness of illegal discrimination, and anti-discrimination rationales, are much less sophisticated than most studies from other countries.  In practice, very few actions to redress employment discrimination have emerged in Chinese courts, and plaintiffs have encountered major obstacles.  The under-development of Chinese anti-discrimination legal mechanisms has deep cultural, economic and traditional causes.

This paper, however, is not intended to address anti-discrimination litigation and the Chinese legal system itself.  Rather, it focuses on the development of a scholarly foundation for anti-discrimination law in China.  It asks how scholars should research anti-discrimination in China. The paper notes that, initially, scholars were concerned with two main tasks in employment discrimination law research: quantifying empirically the existence of discrimination and trying to understand where China stood in comparison with other countries in regulating discrimination.  In the former situation, scholars conducted empirical research, and in the latter, scholars conducted comparative research.  This paper argues that both research strategies produce useful but incomplete results.  In the case of empirical research, such research demonstrated a huge problem but could offer no solution.  The comparative research likewise showed that China had a relatively limited legal infrastructure for regulating discrimination, but the rather general comparisons did not provide the detail to help move forward, nor did it address the peculiarities of the Chinese context.  Some scholars tried to fill in the gaps by drawing upon foreign models and adapting them to the Chinese system.  This had the advantage of being fairly specific and practical, but it tended to pay insufficient attention to Chinese conditions that might lead to the rejection of the transplanted models.

This paper discusses a research approach that emphasizes the combination of both Chinese reality and foreign experience.  Part II summarizes recent discussions among Chinese legal scholars reflecting the legal research strategy issue in China.  Part III examines and evaluates the strategies Chinese scholars have used in conducting anti-discrimination-in-employment law research.  It then discusses a more practical and sensible approach.  Part IV concludes that the proposed strategy will be a better vehicle for furthering the anti-discrimination cause in China.