March 1 2023 Annual review of China's employment and immigration sector: progress with workplace gender equality JunHe LLP | Employment & Immigration - China Employment & Immigration Preventing gender discrimination in workplacePreventing sexual harassment at workEmployment protection of female employees while pregnant or on maternity leaveEmployer obligationsIn October 2022, wide-reaching amendments to the People's Republic of China Law on the Protection of Women's Rights and Interests were approved. The amendments took effect on 1 January 2023. This article, the second of a four-part series, sets out the key provisions regarding women's rights in the workplace, contextualised by the high level of development and change in China's employment and immigration sector over the past year. For the first article in the series, see "Annual review of China's employment and immigration sector: end of covid-19 era".Preventing gender discrimination in workplaceAccording to the draft, unless stipulated by the state, employers are not allowed to do the following in the recruitment process:limit recruitment to men or give them priority;in addition to basic personal information, make further inquiries or investigations of female applicants' marriage and childbearing status;include pregnancy tests in medical examinations for employment;impose restrictions on marriage and childbearing as conditions of employment;take other actions to refuse to employ women based on sex; orraise women's employment standards in a differentiated manner.Also, 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 competent authority.Preventing sexual harassment at workAlthough 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 specific obligations with which employers must comply to prevent sexual harassment of women in the workplace, including:formulating rules and systems that prohibit sexual harassment;specifying a responsible department or person and handling complaints;conducting education and training activities;taking necessary security measures;making employees aware of the means through which complaints can be raised (eg, phone numbers and mailboxes);establishing and improving investigation and resolution procedures;supporting and assisting aggrieved women in the lawful enforcement of their rights; andproviding them with psychological counselling when necessary.The law also requires employers to handle complaints in a timely manner and notify the aggrieved women in writing of their findings. If employers fail to comply with the obligations to prevent sexual harassment of women in the workplace, they may be ordered by the competent authority to take corrective actions within a required time limit. If the situation is severe, or if the employer fails to rectify the issue within a required time limit, the competent authority may impose disciplinary actions on the directly liable executive in charge or other directly liable personsPrior to the approval of the amendments, employers already had a general obligation to prevent and stop sexual harassment (of both men and women) in the workplace under the 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.Employment protection of female employees while pregnant or on maternity leaveThe amendments emphasise the employment protection of female employees while pregnant or on maternity leave. The amendments 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. Although the rule regarding extending the contract until the end of the nursing period is omitted in the amendments, such rule is still stipulated in the Employment Contract law. Therefore, for the time being, where a female employee's contract expires while she is in the nursing period, employers in China should continue to extend the contract to the end of the nursing period.The amendments impose other new requirements for employment contracts. An employment contract must include special provisions to protect female employees. A collective contract made between and by the employees and the employer must also include equality between men and women and protection of the rights and interests of female employees.Employer obligationsAs the amendments impose additional obligations on employers in China relative to female candidates and employees, employers should review and update their relevant employment documents, policies and procedures – including but not limited to their anti-sexual harassment policy, job application form and procedures, and employment contracts – to ensure they are compliant.For further information on this topic please contact Zhen Lu at JunHe by email ([email protected]). The JunHe website can be accessed at www.junhe.com.