Introduction
Recently amended gender discrimination provisions
Recent cases
Comment


Introduction

China has not currently formulated a specific anti-discrimination law. The current law also does not address the definition of "discrimination". China's anti-discrimination provisions can be found in a series of different laws and regulations, such as:

  • the Constitutional Law;
  • the Civil Code;
  • the Labour Law;
  • the Employment Promotion Act; and
  • the Law on the Protection of Women's Rights and Interests.

Under Chinese law, discrimination refers generally to any act that violates the right to equality, which treating people differently based on:

  • ethnicity;
  • race;
  • religion;
  • sex;
  • disability;
  • age;
  • region;
  • height; and
  • other reasons without reasonable legal basis.

Recently amended provisions on gender discrimination in employment

As far as gender discrimination is concerned, the latest amendment to the Law on the Protection of Rights and Interests of Women (effective on 1 January 2023) stipulates that the state shall take necessary measures to promote the equality of men and women and to eliminate all forms of discrimination against women. Specifically, the law further stipulates that during the recruitment process, employers shall not:

  • recruit only male employees or specify preference for males;
  • inquire or investigate, in addition to basic personal information, the marital and parenting status of female employment applicants;
  • include a pregnancy test as a pre-employment medical examination item;
  • condition employment on marital or parenting restrictions or status;
  • refuse to hire women on the ground of gender; or
  • raise the criteria for hiring women in a differentiated manner.

In situations involving a promotion in position or in rank or appointments based on professional qualifications and training, employers shall adhere to the principle of equality between men and women and shall not discriminate against women.

Employers shall not, by reason of matrimony, pregnancy, maternity leave or breastfeeding:

  • decrease a female employee's wages or perks;
  • restrict a female employee from promotion in post or rank or appointments based on her professional qualifications and training;
  • dismiss a female employee; or
  • unilaterally terminate a female employee's employment contract or service agreement.

Recent cases

Despite the above legal rules, in practice, female employees find it difficult to hold employers legally liable if they believe they have been discriminated against based on their gender. Female employees need to prove to the court not only that sex-based discrimination has occurred, but also that there is a causal relationship between their gender and the differentiated treatment.

In judicial practice, cases of gender discrimination in employment mainly concern recruitment and termination processes. The following two cases have attracted a lot of attention and resulted in the court supporting the employee's claim.

Discrimination in recruitment
An express company advertised for a "male" delivery position. Ms Deng applied for the position and after two days of probation, she and the company reached a preliminary consent to enter an employment contract. However, the company later chose not to hire Deng. The company confirmed in a phone call with Deng that the reason to reject her was that she was a woman.

The court found the company to have committed employment discrimination and ordered the company to pay Deng 2,000 yuan (approximately £240) as compensation for damage due to emotional distress.

Discrimination in termination of employment
Ms Fan worked for a property management company. She discovered that she was pregnant and was advised by doctor to rest for one day. Fan informed her supervisor that she was pregnant and applied for leave. However, she was immediately informed that she no longer needed to work. The next day, the company cut her security access, packed her personal belongings and sent them to the security office.

Fan filed a lawsuit against the company based on the cause of action of "equal employment right dispute". The company argued that the termination of the employment relationship was due to Fan frequently arriving late to work.

The court held that although Fan had been late several times, the company had paid her full salary, which showed that it had been tolerant.

While the process of termination showed that the company made the decision to dismiss immediately after becoming aware of her pregnancy. Therefore, Fan's dismissal was discriminatory and violated her equal employment right.

The court ruled that the company had to:

  • pay for the salary losses;
  • provide a written apology; and
  • pay 10,000 yuan (approximately £1,900) in compensation for mental damages.

Comment

Given that there has been a rise in the number of equal employment right disputes in recent years on the basis of a matrix of discriminations, employers are advised to ensure compliance with equal employment measures to avoid discriminatory treatment to specific groups of candidates and employees, especially to women, during the entire employment process. This process includes recruitment, termination, and formulation. This impetus is contextualised by the recent amendment to the Law on the Protection of Rights and Interests of Women.

For further information on this topic please contact Wan Zhang or Xu Yexi at JunHe by email ([email protected] or [email protected]). The JunHe website can be accessed at www.junhe.com.