On January 1, 2023, the amended Law of the People’s Republic of China (PRC) on the Protection of Women’s Rights and Interests (“LPWRI”) will come into effect. Amongst other requirement, it imposes new specific obligations on employers with respect to sexual harassment and gender discrimination. It is advisable that the employers in China review their staff handbooks and take the following steps as soon as practical in order to comply with the LPWRI.
I. Put in place a compliant mechanism to prevent and curb sexual harassment
Currently, the Special Provisions on Labour Protection for Female Employees and the Civil Code provide in principle that the employers shall take reasonable measures to prevent and curb sexual harassment towards female employees at work premises.
The LPWRI further requires that the employers shall take the following specific measures to prevent and curb sexual harassment against women, including:
(i) to formulate rules and regulations prohibiting sexual harassment;
(ii) to designate a responsible department or personnel for dealing with such issues;
(iii) to carry out education and training to prevent and curb sexual harassment;
(v) to adopt necessary security and safeguard measures;
(iv) to set up complaint telephone lines, mailboxes, etc. and unblock complaint channels;
(vi) to establish and improve the investigation and handling procedures, and to handle disputes in a timely manner and protect the privacy and personal information of the parties involved; and
(vii) to support and assist the female victims in defending and exercising their legal rights, and provide psychological counselling for female victims when necessary.
Accordingly the employers should address these issues in their staff handbook / relevant internal rules and ensure the ability to investigate and handle disputes relating to sexual harassment. It is important to create a mechanism and procedure for collecting solid evidence against an offending employee (if any), so that the employer will have the grounds to terminate the employment contract of the employee liable for sexual harassment. Otherwise, the female victim (if any) may initiate the termination her employment contract due to the employer’s failure to provide safe working conditions and to claim economic compensation against the employer upon such termination.
II. Ensure no gender discrimination takes place in the recruitment process, including avoiding enquiries into marital and/or child-bearing information of female candidates
The LPWRI expressly prohibits the employers from:
(i) restricting candidates to males or stipulating that males shall be given priority;
(ii) further inquiring of or investigating the marital and child-bearing information of the female applicants in addition to the basic personal information;
(iii) requiring a pregnancy testing as one of the items of physical examination for on-boarding; or
(iv) including the restrictions on marriage / childbearing or marital status or childbirth as a requirement for recruitment.
Employers should review their relevant documents such as the recruitment questionnaires, interview guidance, on-boarding forms etc., for complying with the foregoing requirements.
Note that the gender discrimination shall fall within the scope of labour security supervision as per the LPWRI. In other words, the female staff may make a complaint / report to the labour authority on employer’s gender discrimination activities and the officials shall handle the same in a timely manner. Where an employer violates any of the foregoing prohibitions, the labour authority shall order the employer to take corrective measures, and impose a penalty in the range of RMB10,000 – 50,000 if the employer refused to rectify the situation or if the violations are serious.
III. Include provision(s) on female protection in the employment contract
The LPWRI also requires that the employment contracts or service agreements with female staff shall have provision(s) on the protection of the female staff, which is an addition to the current Labour Contract Law and other employment laws of China. However, the LPWRI does not elaborate on the content of such provision(s) for female protection. It is yet to be seen if the labour authority will further provide any sample provisions in this regard. Nevertheless, employers should at least add a general provision addressing the female protection in the employment contracts or service agreements with female staff especially those to be signed or renewed in 2023.