China passed and adopted the newly amended PRC Law on Protection of Rights and Interests of Women (“New Law”) on 30 October 2022. The New Law will come into force from 1 January 2023 and aims to provide stronger protection for women in various aspects including political rights, personal rights, education, employment and social security, marriage and family rights, etc. and to eliminate all kinds of discrimination against women.
In this newsletter, we would like to brief you on the key implications and requirements which the New Law may bring to employers in China.
1. Prevention of Sexual Harassment
The New Law expressly forbids sexual harassment of women against their will by words, texts, images, physical behaviors, or any other means. As part of the efforts in preventing sexual harassment, the New Law, for the first time, at national level explicitly requires employers in China to adopt detailed management measures to prevent sexual harassment at the workplace. The measures required by the New Law are as follows:
(1) formulating rules and regulations that prohibit sexual harassment;
(2) specifying the responsible organizational body or person in charge;
(3) carrying out education and training activities to prevent and stop sexual harassment;
(4) adopting necessary safety and security measures;
5) setting up hotlines and mailboxes for receiving complaints and providing smooth complaint channels;
(6) establishing sound investigation and handling procedures, handling disputes in a timely manner, and protecting the privacy and personal information of the parties concerned;
(7) supporting and assisting female victims in safeguarding their rights, and providing psychological counseling to female victims where necessary; and
(8) adopting other reasonable measures to prevent and stop sexual harassment.
Employers failing to take necessary measures in preventing sexual harassment resulting in infringement of women’s rights or bad impacts on the society may be ordered by the competent authority to make rectification. If the employer refuses to rectify or the circumstances of violation are serious, the person directly in charge and other persons directly responsible may be imposed with punishments according to law.
2. Equal Employment Right for Women
Another purpose of the New Law is to eliminate gender discrimination in employment and to ensure that women have equal rights related to labor and social security with men.
In the recruitment process, employers are explicitly prohibited from taking any of the following acts:
(1) only hiring males or specifying that males are preferred;
(2) inquiring about or investigating the marriage and childbirth status of a female job applicant;
(3) including pregnancy test in the entry physical examination;
(4) making any restriction on marriage or childbirth, or the status of marriage and childbirth as a condition for recruitment (employment); and
(5) other acts of refusing to recruit women on the grounds of gender or raising the standards for recruitment for women in different manners.
During the employment, employers shall also adhere to the principle of equality between men and women, such as when making promotion, evaluating and recognizing professional and technical titles, providing training, terminating employment contract etc., discrimination against women in these matters is not allowed.
According to the New Law, gender-equality at the workplace will be incorporated into the scope of labor security supervision conducted by the competent labor administrative authority. If the employer violates the gender-equality provisions, it may be ordered to make rectifications. If the employer refuses to rectify or the circumstances are serious, it can be fined in an amount of between RMB 10,000 and RMB 50,000.
3. Special Labor Protection for Women
In addition to the stipulations in the PRC Special Provisions on Labor Protection of Female Employees which became effective on 28 April 2012, the New Law imposes the following new obligations on employers:
(1) Employers shall include special protection clauses for female employees in their employment contracts and shall not impose restrictions on their marriage and childbirth. The collective contracts concluded by and between the employer and the employees shall contain provisions regarding gender equality and protection of female employees’ rights and interests.
(2) Employers shall regularly arrange health examinations for their female employees for gynecological diseases and breast diseases and other examinations specifically needed by women.
(3) In addition to not reducing female employees’ salaries during the pregnancy, maternity or nursing periods, employers shall not, during these periods, reduce female employee’s welfare benefits and not impose restrictions on female employees in regards of promotion, rank rise and recognition of professional and technical titles, and not terminate their employment contracts due to their pregnancy, maternity or nursing period status.
The New Law does not provide legal liabilities if the employer breaches the obligations provided in the above items (1) and (2). But if the employer breaches its obligations under item (3), the employer will be ordered by the competent labor administrative authority to make rectifications. If the employer refuses to rectify or the circumstances are serious, it can be fined in an amount of between RMB 10,000 and RMB 50,000.
Please note that regarding the special labor protection of female employees, in addition to the stipulations in the New Law, the relevant provisions of the PRC Labor Contract Law shall apply as well. For example, the New Law only provides that the term of a female employee’s employment contract shall be extended automatically until the end of the pregnancy or maternity period without mentioning the nursing period. However, according to the PRC Labor Contract Law, the same rule shall apply to a female employee's nursing period, i.e., the term of the employment contract shall be extended automatically until the end of the female employee's nursing period. Further, although the New Law does not provide for special labor protections for female employees against termination of employment contract, however, according to the PRC Labor Contract Law, female employees shall not be unilaterally terminated by the employer due to the reason of illness, incompetence or change of objective circumstances during the pregnancy, maternity or nursing periods.
4. Remedial Measures for Women
Under the New Law, for any acts infringing the rights and interests of women, any organization or individual has the right to dissuade, stop, or file a complaint or report to the relevant governmental departments. The female victims are entitled to lodge complaints to relevant authorities, apply for mediation or arbitration or file a lawsuit at the People's Court in accordance with the law to pursue their claims.
If an employer infringes upon women's rights and interests related to labor and social security, it may be interviewed by the competent labor administrative authority together with the trade union and the women's federation and be ordered to make corrections within a time limit under the supervisions of authorities. Further, the New Law provides that the public procuratorate may file a public interest lawsuit regarding employers’ infringement on women’s rights in equal employment or employers’ failure to take reasonable measures to prevent and stop sexual harassment.
5. Conclusion and Suggestion
The New Law puts forward new, detailed and higher legal requirements on employers in regard to prevention of sexual harassment of women, gender equality in employment and labor protection of female employees. Such legal requirements can guide employers to build a friendly work environment and to promote the development of gender equality. Employers failing to fulfill these legal requirements bear the risk of facing potential administrative and civil liabilities.
The New Law will come into force on1 January 2023. Employers are strongly advised to revisit their employment documents and HR rules and regulations (particularly the Employee Handbook and template employment contracts), review their current employment processes and labor protection practices, and make necessary adjustments, if needed, with an aim to comply with the requirements of the New Law.