Recently, PRC courts have become more willing than they have been in the past to hear sex discrimination cases brought by female employees and job candidates. In the PRC, if a plaintiff brings a civil suit to a court (i.e. files a case), and the suit meets the requirements for acceptance, the court shall place the case on its docket (i.e. accept the case) within seven days; if the suit does not meet the requirements for acceptance, the court shall make a ruling within seven days confirming the rejection of the suit. There was previously a trend whereby courts would not allow sex discrimination cases to pass this initial stage (i.e. acceptance) but this appears to be changing as seen in the cases below.
On August 18, 2015, the Guangzhou Haizhu District People’s Court immediately accepted a sex discrimination case on the same date that a female candidate filed it. In this case, the female candidate applied to a restaurant for a position as a chef. After receiving no response, she called the restaurant and was told that only a male candidate would be offered the position. The court heard the case on September 17, 2015 and the final ruling is still pending.
In another case, the Beijing Shunyi District People’s Court also speedily accepted a sex discrimination case brought by a female graduate within two days of it being filed with the court (January 27, 2015). In this case, the female graduate applied for a courier position. Although the job advertisement said the position was for male applicants only, the courier company interviewed the female graduate and gave her a trial for two days. The graduate’s supervisor orally agreed to hire her and asked her to do the pre-employment physical examination. However, later the company told the graduate that it could not hire her because she is female. The court heard the case on September 1, 2015 and the final ruling is still pending.
Though the final rulings for the two cases are still pending, these cases demonstrate that the PRC courts are becoming more willing to accept sex discrimination cases where in the past there was a reluctance to do so. For example, it took more than one year for the Beijing Haidian District People’s Court to finally accept a case (in September 2013), which was reported to be the first sex discrimination case in China that was accepted by a court (though this case was ultimately resolved through mediation) (please refer to our Newsletter of December 2013). By contrast, in the above two recent cases, and also in a previous 2014 Hangzhou case where the court ruled in the plaintiff’s favour and awarded compensation (please refer to our Newsletter of December 2014), the courts have swiftly accepted the cases allowing them to progress to a hearing.
If a plaintiff is successful in her sex discrimination claim, she will be entitled to compensatory damages such as actual loss resulting from the discrimination and emotional damage (but not punitive damages).The concept of indirect discrimination (disparate impact), as it exists in the U.S., Canada, the EU and other countries, is not well developed in China.
Key Take-Away Points
Companies should be cautious about including any criteria that are discriminatory in nature when deciding the requirements for a post. Companies may also adopt an anti-discrimination policy, implement training programs and establish compliance and investigation procedures to reduce its risks in discrimination cases.