Preventing sexual harassment in workplaces
Inquiring about marital and parenting status of women during recruitment process
Extending employment contractsfor pregnant employees and those on maternity leave
Failure to comply with anti-sexual harassment and other obligations
Comment


On 30 October 2022, wide-reaching amendments to the Law on the Protection of the Rights and Interests of Women were approved. This article sets out the key provisions regarding women's rights in the workplace. The amendments will take effect on 1 January 2023.

Preventing sexual harassment in workplaces

Although the law retains a relatively vague definition of sexual harassment (ie, "sexual harassment of women against their will by verbal, written, image, physical behaviour or other means shall be prohibited"), the amendments provide eight obligations with which employers must comply to prevent sexual harassment of women in the workplace. In particular, employers must:

  • formulate rules and systems that prohibit sexual harassment;
  • specify a responsible department or person;
  • conduct education and training activities;
  • take necessary security measures;
  • make employees aware of the means through which complaints can be raised (eg, phone numbers and mailboxes), and keep such complaint channels unimpeded;
  • establish and improve investigation and resolution procedures, resolve disputes in a timely manner and protect the privacy and personal information of parties;
  • support and assist aggrieved women in the lawful enforcement of their rights and provide them with psychological counseling when necessary; and
  • take other reasonable measures to prevent and stop sexual harassment.

The amendments also require employers to handle complaints in a timely manner and notify the parties in writing of their findings.

Prior to the approval of the amendments, employers already had a general obligation to prevent and stop sexual harassment (both of men and women) in the workplace under the People's Republic of China (PRC) Civil Code. The amendments further require employers to formulate and implement a comprehensive anti-sexual harassment system and procedures by taking the measures outlined above. Therefore, employers in China must formulate or update their policies on anti-sexual harassment in accordance with the new requirements.

Inquiring about marital and parenting status of women during recruitment process

The amendments specifically forbid employers from inquiring about or investigating the marital and parenting status of female applicants or candidates during the recruitment process. Further, requiring applicants or candidates to take a pre-employment pregnancy test is not allowed.

This requirement is a part of a group of provisions in the amendments on anti-gender discrimination in the workplace. The amendments require gender equality in the processes of:

  • recruitment;
  • admission;
  • promotion;
  • performance review;
  • training; and
  • termination.

Failure to comply with the requirements may lead to correction orders or fines from the local labour authority.

Although information on female candidates' marital or parenting status cannot be collected at the recruitment stage, such information may be collected and processed once a female employee is on board if there are clear and reasonable purposes for doing so, such as to provide benefits to employees and/or their family members. Employers should comply with data privacy requirements when collecting and processing employees' personal information.

Extending employment contracts for pregnant employees and those on maternity leave

The PRC Employment Contract Law clearly states that if a female employee's employment contract expires while she is pregnant, on maternity leave or nursing (known as the "three periods"), the employment contract must be extended to the end of the three periods. This is normally the end of the employee's nursing period (ie, upon the employee's child's first birthday).

The amendments only provide that if a female employee's employment contract expires while she is pregnant or on maternity leave, the employment contract will be extended to the end of the maternity leave. The rule regarding extending the contract until the end of the nursing period is omitted.

This difference between the laws has raised discussions in the market. Some think the original rules on contract extension in the PRC Employment Contract Law have been revised, and that female employees would not be legally protected if their employment contract ended while they were nursing. However, the majority believe that the amendments merely emphasise the fact that female employees are protected while pregnant or on maternity leave, and do not exclude employees who are nursing from protection under the PRC Employment Contract Law.

For the time being, where a female employee's contract expires while she is pregnant, on maternity leave or nursing, employers in China should continue to extend the contract to the end of the three periods.

Failure to comply with anti-sexual harassment and other obligations

If employers fail to comply with the obligations to prevent sexual harassment of women in the workplace, the labour authority will:

  • order employers to take corrective action; and
  • impose disciplinary actions on the directly liable executive in charge and other directly liable persons.

The amendments also specify that an administrative fine of between 10,000 yuan and 50,000 yuan may be imposed if an employer fails to comply with certain obligations, including:

  • inquiring about the marital and parenting status of female applicants; and
  • failing to extend the employment contracts of female employees who are pregnant or on maternity leave.

Further, the amendments provide, for the first time, that prosecutors have the right to bring public interest litigation to protect women's rights where employers have:

  • violated women's rights to and interests in equal employment; or
  • failed to take reasonable measures to prevent and stop sexual harassment.

Nevertheless, the amendments do not hold employers liable for damages suffered by women who have been sexually harassed at their workplace. In practice, it is rare that employers are held liable for compensating victims in sexual harassment cases. However, employers may be liable for harassment under tort law.

Comment

As the amendments on employers in China impose additional obligations relating to female candidates and employees, employers should review and update their relevant company policies and procedures – including their anti-sexual harassment policy and job application form and procedures – to make sure they are compliant.

For further information on this topic please contact Zhen Lu or Shijie Wei at JunHe by email ([email protected] or [email protected]). The JunHe website can be accessed at www.junhe.com.