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George Washington University Law School

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Tuesday, November 15, 2005

Sex discrimination in retirement age

I recently posted about a case in which a female worker forced into retirement on the basis of age brought suit against the labor bureau that had approved her retirement. I had expected that her complaint would have been about the different retirement ages prescribed for men and for women, but it was not. She was complaining not about sex discrimination nor even about discrimination between those of worker status and those of cadre status (who may retire later); her complaint was just that she had been wrongly classified as a worker.

Simon Zhang has kindly pointed me to a recent case in which the sex discrimination claim is finally being brought. The plaintiff was forced to retire from the Construction Bank of China (中国建设银行) at age 55; the corresponding retirement age for men is 60. The legislative basis for her retirement is a 1978 State Council document (No. 104, 1978) entitled "Provisional Measures Concerning the Settlement of Old, Weak, Sick, and Disabled Cades" (国务院关于安置老弱病残干部的暂行办法) ("Doc. 104"). Art. 4 of Doc. 104 states that female cadres who have reached age 55 and have participated in the work of the revolution for 10 years may retire. On the basis of Art. 4, the plaintiff's employer in October 2004 (the month she turned 55) applied to the Henan Provincial Labor and Social Welfare department to approve her retirement.

The plaintiff first took the case to labor arbitration, as she is required to do, claiming that the retirement age set forth in Doc. 104 conflicted with the guarantee of gender equality contained in Art. 48 of the Chinese constitution as well as international treaties to which China was a party. The arbitration tribunal rejected these arguments -- not as wrong, but as beyond the competence of the tribunal to consider (不属于仲裁委员会受理范围). (Interestingly, the plaintiff does not seem to have made anything of the fact that Doc. 104 does not in fact mandate retirement, but seems to contemplate it as an option available to the employee.)

The plaintiff then took her case to a basic-level people's court in the city of Pinxiangshan, Henan Province, which accepted the case on Nov. 11, 2005. The plaintiff seems to have dropped her argument based on international law and is still apparently declining to argue that Doc. 104 does not mandate retirement. But she has two interesting remaining arguments. First is the constitutional argument described above. But she (or more likely her lawyer) has rather cleverly thought up another argument that will allow the court, if it wishes, to avoid the constitutional question. This is an argument based on statute: that the rule of Doc. 104, under current social conditions, violates the legislative intent of protecting the rights of women. (It's not clear if she is referring to the legislative intent of Doc. 104 itself -- in which case she would be making the argument that the court should allow the spirit of a law to override its actual words -- or to the legislative intent and indeed actual words of laws such as the Law for the Protection of the Rights and Interests of Women (妇女权益保障法) (the "LPRIW"). Art. 27 of the LPRIW specifically prohibits work units from discriminating on the basis of sex when implementing the state's retirement system.)

An NPC statute would normally be clearly superior to something such as Doc. 104, but there's an interesting factor that complicates things: Doc. 104 was "approved in principle" (原则批准) by a resolution of the NPC Standing Committee. Perhaps this could be viewed as giving it the status of "law" equal to the LPRIW. The court could, of course, still hold that the LPRIW, as the later law, takes priority over Doc. 104, but it could also hold the Doc. 104 is more specific, and thus should take precedence over the more general LPRIW.

The legal arguments in favor of Doc. 104 look weak to me, but clearly the court is faced with a major challenge in being asked to rule contrary to the provisions of a State Council document and (more importantly) contrary to years of settled practice. Perhaps the court will take the simplest way out and find (plausibly, if you ask me) that Doc. 104 never mandated retirement in the first place.

Comments welcome (but please stick to the legal issues).

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I wonder whether an employee of China Construction Bank should still be identified as a "Cadre" in the administrative system of the State organ. All four Chinese state-owned banks have been undergoing reorganization with the final goal of becoming market players tuned to real market force. In this effort, China Construction Bank is heading for its IPO in Hong Kong. It is therefore arguable that Doc. 14 still apply to the instant case.

China Construction Bank may however shift its approach of "retiring" the palintiff to "terminating" the employment contract by refering to the relevant provisions in the Labour Law. As a market player that it claims to be, China Construction Bank could argue that it should be in the position of deciding its own human resource policy.

Posted by: Wenbin Wei | Nov 17, 2005 2:12:28 AM

"An NPC statute would normally be clearly superior to something such as Doc. 104, but there's an interesting factor that complicates things: Doc. 104 was "approved in principle" (原则批准) by a resolution of the NPC Standing Committee. Perhaps this could be viewed as giving it the status of "law" equal to the LPRIW."

FWIW, I don't think this works. The NPCSC procedural rules clearly distinguish between a 'resolution' and a 'law'. The drafting procedures are different. The legislative status of resolutions is somewhat ambiguious (more or less that of a State Council regulation), but they are clearly subordinate to laws.

Posted by: Mike Dowdle | Nov 17, 2005 3:09:58 PM

I'm not sure the situation is quite so clear as Mike implies. To quote the late 1970s slogan, "Practice is the sole criterion of truth". And one good example we have of a practice is the continuing life of re-education through labor, the sole NPC-level basis for which is a 1979 Standing Committee resolution. Without this basis, it is clearly in violation of Art. 8 of the Law on Legislation and (subject only to the dubious argument that it is not a "punishment") the Law on Administrative Punishments as well. But on the basis of this resolution, it is possible for supporters of the current system to say that it is adequately grounded in law -- and indeed, their arguments, while contested, have so far carried the day. Of course, we can argue that the Chinese legal system can make mistakes, and we need not accept all its outputs as consistent with its own rules. Nevertheless, this IS its output, and we have to take that into account before saying that the contrary is "clearly" true as a matter of Chinese law.

Posted by: Don Clarke | Nov 21, 2005 12:23:06 PM

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