On June 28 2012 the Shenzhen Municipal People's Congress Standing Committee passed the Regulations on the Promotion of Sex Equality, which will become effective on January 1 2013. While various national laws and local regulations already contain provisions related to sex discrimination and sexual harassment, this is the first piece of legislation exclusively addressing the issue of sex equality.

The regulations define the terms 'sex equality' and 'sex discrimination' and recognise the concept of 'disparate impact' in a discrimination context. Further, the regulations recognise certain exceptions to the rule against sex discrimination, such as affirmative action-style measures taken to expedite factual sex equality and special measures taken to protect women's physical health and safety, particularly for women who are pregnant, giving birth or in their nursing periods.

The regulations specifically impose fines of up to Rmb30,000 on employers which violate the sex equality principle by imposing restrictions, refusing to hire candidates or increasing the hiring standards on the basis of the individual's sex, marriage status or pregnancy status during the recruitment process. However, the regulations do not specify penalties for alleged sex discrimination in other employment-related decisions, such as promotion or termination.

The regulations provide a detailed definition of 'sexual harassment', which includes:

  • unwelcome sexual advances or any conduct, remarks, words, images or electronic information of a sexual nature; and
  • using submission to sexual advances as an express or implied condition for receiving an employment offer, promotion, compensation benefits or awards (ie, quid pro quo).

Employers have certain obligations with respect to sexual harassment, including:

  • taking precautionary measures to prevent it;
  • providing training to employees; and
  • taking appropriate measures if a sexual harassment incident takes place.

Under the regulations, a separate government authority will be set up to hear sex equality and sexual harassment claims. Such claims can also be directly submitted to the courts.

Although for many years China has had laws and regulations in place that specifically protect the rights and interests of women and generally require fair employment practices, actual discrimination claims have still been relatively rare. It remains to be seen whether this new step by the Shenzhen government will encourage employees to raise complaints about sex discrimination to the government or the courts.

For further information on this topic please contact Andreas Lauffs or Jonathan Isaacs at Baker & McKenzie's Hong Kong office by telephone (+852 2846 1888), fax (+852 2845 0476) or email (andreas.lauffs@bakermckenzie.com or jonathan.isaacs@bakermckenzie.com).

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