Introduction
Allowing more female employees to participate in democratic decision-making and management processes
Prohibiting discrimination against women in recruitment and employment management process
Special clauses on protection of female employees in employment documents
Inclusion of gender equality status in corporate annual report
Legal obligation to prevent and stop sexual harassment in workplace
Encouraging employers to improve public facilities for women in workplace
Stopping domestic violence within scope of duties
Comment
On 20 December 2021, the revised draft of the Law on the Protection of Women's Rights and Interests of the People's Republic of China (PRC) (the Revised Draft) was submitted to the Standing Committee of the National People's Congress of the PRC for the first review and was released for public comment on 24 December 2021. This is the third revision of the law since its promulgation on 1 October 1992. The Revised Draft refines relevant provisions on:
- women's political rights;
- labour and social security interests;
- personality rights; and
- marital and family interests.
From the perspective of employment management, the Revised Draft has provided practical guidance for employers to effectively protect women's rights and interests and has introduced stricter requirements for employers to build a female-friendly workplace environment. In general, employers are advised to pay attention to seven aspects of the changes made by the Revised Draft, which are outlined below.
Allowing more female employees to participate in democratic decision-making and management processes
Article 15(2) of the Revised Draft provides that:
employers shall organise their female employees to participate in the formulation of rules and regulations related to employees' rights and interests and other consultation activities related to female employees' rights and interests.
This is a new provision on female employees' participation in an enterprise's democratic decision-making and management process, according to which the scope of female employees' participation in formulating rules and regulations is not only limited to female-specific matters, but also those related to the rights and interests of all employees. For employers (especially those without an employee representative congress or trade union), it is worth considering how to refine the democratic consultation process of formulating rules and regulations to meet the above requirements.
Further, article 16(2) of the Revised Draft also provides that "the proportion of female employees' representatives in the employee representative congress shall match the proportion of female employees to the total number of employees". The Revised Draft elevates the legal hierarchy of this requirement to a national law to highlight the importance of increasing women's participation in the democratic decision-making and management of an enterprise.
Prohibiting discrimination against women in recruitment and employment management process
Article 28(1) of the Revised Draft enumerates five gender-discriminating behaviours against women that are prohibited during the recruitment process, including:
- prioritising men or making jobs available only to men;
- further inquiring about, or investigating, the marital or reproductive status and plans of female applicants;
- making pregnancy tests part of the onboarding physical examination;
- setting restrictions on marriage or childbearing as an employment condition or establishing certain marital and reproductive statuses as an employment condition; and
- other behaviours relating to refusing to hire women or otherwise raising the employment standards for women based on gender.
These banned discriminative behaviours were already specified in a notice jointly issued by nine PRC national ministries in early 2019; however, the Revised Draft raises its legal standing to national law and refines certain provisions to strengthen the supervision of employers' recruitment behaviours.
Moreover, article 28(2) of the Revised Draft stipulates that "where an online platform organises staff to work on its platform, the provisions of the preceding paragraph shall apply mutatis mutandis", which highlights the protection of rights and interests of the workers engaged in the booming gig economy in recent years and expands the application of the prohibition of discrimination in employment to non-labour relationship scenarios.
If an employer violates these provisions, the human resources and social security authority, the trade union and the women's federation shall have the right to criticise the employer and urge it to correct its unlawful conducts within a prescribed time limit; if the employer refuses to make rectification or the unlawful conduct is serious, a fine of 10,000 yuan to 50,000 yuan (between approximately $87 and $437) shall be imposed. In addition, employers that seriously impede women's equal employment rights and interests may face public interest lawsuit filed by the procuratorial organ.
Special clauses on protection of female employees in employment documents
Article 30(1) of the Revised Draft stipulates that "the employment contracts or service agreements shall contain special clauses on the protection of female employees". This is the first time that such a requirement has been raised by law and the notion of "special clauses on the protection of female employees" is unclear. Based on relevant existing rules, the "special provisions on the protection of female employees" may include:
- banned work for female employees;
- special labour protection during female employees' menstrual, pregnancy, maternity and lactation periods;
- equal employment opportunities; and
- equal pay for equal work.
Inclusion of gender equality status in corporate annual report
Article 35 of the Revised Draft stipulates that:
the annual report of an enterprise shall contain information reflecting gender equality status, such as the information of recruitment of female employees, gender ratio of employees, gender ratio of the management team, etc.
This is a new requirement for employers to include information on gender equality in their annual report, which shall be disclosed to the public. As a result of this requirement, the public and the government will be able to supervise each enterprise's equality promotion efforts.
Legal obligation to prevent and stop sexual harassment in workplace
Article 50(1) of the Revised Draft lists five forms of sexual harassment:
- speech of a sexual nature or with sexual implications;
- inappropriate or unnecessary physical conduct;
- showing or disseminating images, text, information, audios or video with explicit sexual content;
- implying that certain benefits will be obtained from entering into an intimate relationship or engaging in a sexual relationship;
- other circumstances that shall be deemed as sexual harassment.
Article 53 further stipulates that "it is prohibited to sexually harass or have sexual relationship with a woman by taking advantage of the power, subordinate relationship, dominant position or duty of care". Previously, the applicable laws and regulations, including the PRC Civil Code, only provided the principle of prohibiting sexual harassment, but did not specify any detailed forms of sexual harassment. This caused different understandings of the specific meaning of sexual harassment in practice. The Revised Draft embraces the experience of the official anti-sexual harassment guidance released by the All-China Women's Federation, the All-China Federation of Trade Unions and some local governments (such as the Shenzhen government) and stipulates five forms of sexual harassment on the national legislation level for the first time. In addition to the PRC Civil Code, the Revised Draft elaborates more on "quid pro quo sexual harassment", thus making the legal system against sexual harassment more comprehensive.
Further, article 52 of the Revised Draft lists six approaches for employers to assume their legal obligation to prevent and stop sexual harassment, including:
- formulating rules and regulations to prohibit sexual harassment and specifying the responsible department or personnel;
- carrying out education and training on preventing and stopping sexual harassment;
- taking necessary safety and security measures;
- setting up telephones and mailboxes to improve complaint channels;
- establishing and improving investigation and disposal procedures and handling complaints in a timely manner, while protecting the privacy of the parties concerned;
- taking other reasonable preventive measures.
Drawing on the experience of the above official manuals and guidelines, this provision provides detailed guidance for employers on how to effectively fulfil their obligation to prevent and stop sexual harassment in the workplace. From another perspective, this provision also provides the judicial authorities with a clearer reference in determining whether employers have fully fulfilled their obligation to prevent and stop sexual harassment in the workplace in judicial practice.
Similar to the prohibition of discrimination in recruitment mentioned above, article 50(2) of the Revised Draft also extends the employer's obligation to prevent and stop sexual harassment to online platform employment scenarios.
If an employer fails to fulfil their obligation to prevent and stop sexual harassment in the workplace, it may be subject to administrative penalties and public interest lawsuits. Relevant competent authorities shall have the right to order the employer to make corrections; if the employer refuses to do so, the person directly in charge and the other person who is directly responsible shall be given corresponding penalties in accordance with the relevant laws and regulations. However, the meaning of such "penalties" is unclear. In addition, if an employer fails to take reasonable measures to prevent and stop sexual harassment, the Revised Draft provides for the first time that the employer may face public interest lawsuits filed by the procuratorial organ. Nevertheless, the Revised Draft still does not shed light on the specific legal liabilities that employers may assume for not fulfilling its obligations, nor does it clarify whether an individual who suffers from sexual harassment has the right to directly file a lawsuit against the employer for its omission of responsibility.
Encouraging employers to improve public facilities for women in workplace
Article 61 of the Revised Draft encourages employers to build a reasonable allocation of male and female toilets (ie, more female toilets than male), breastfeeding rooms and other public facilities to build a female-friendly workplace.
Stopping domestic violence within scope of duties
In line with the PRC Anti-Domestic Violence Law, which became effective in 2016, article 67(3) of the Revised Draft includes "enterprises " in the scope of the entities responsible for preventing and stopping domestic violence. Employers shall actively undertake their social responsibility to:
- prevent domestic violence within the scope of their duties;
- educate their employees on anti-domestic violence;
- provide assistance to employees who suffer from domestic violence; and
- impose disciplinary actions on employees who commit domestic violence.
The Revised Draft of the Law on the Protection of Women's Rights and Interests contains significant amendments to:
- eliminate gender discrimination against women in employment;
- prevent sexual harassment;
- combat domestic violence;
- improve women's political status; and
- refine the public interest litigation system for the protection of women's rights and interests.
Chinese employers should track and comply with the new requirements raised by this revised law.
For further information on this topic please contact Dongpeng Wang or Xiaoyan Zhao at JunHe by email ([email protected] or [email protected]). The JunHe website can be accessed at www.junhe.com.