China Revamps Law on Discrimination and Harassment Against Women
On 30 October 2022, the National People's Congress Standing Committee passed the amendment to the Law on the Protection of Women’s Rights and Interests. Covering all aspects of women's lives, including employment, succession, marriage, family, property, and healthcare, it is the most significant and comprehensive amendment to the Women’s Protection Law since its enactment 30 years ago. From the employment perspective, companies now need to take gender equality much more seriously, including prevention of discrimination and harassment as well as the investigation and handling of relevant complaints when they arise. The new rules will take effect on 1 January 2023.
Stronger commitment against workplace discrimination
The revised law explicitly prohibits specific practices of discrimination against women by employers in the recruitment and hiring process. Besides banning pregnancy tests during recruitment, it also prohibits employers from reducing the welfare and benefits of female employees or limiting their promotions, rankings, and evaluations of professional and technical titles due to circumstances such as marriage, pregnancy, maternity leave and breastfeeding. It also instructs employers to promptly investigate and respond to complaints pertaining to this matter. The revised law emphasises the power of social security departments along with Trade Unions and Women’s Federations to regulate employers as well as protect female employees in the workplace, and mandates that gender discrimination in job recruitment, admission, promotion and dismissal be incorporated into the scope of labour security inspection.
Importantly, the revised law specifies penalties for violation. Employers failing to comply and refusing to make corrections may be fined RMB10,000 to RMB50,000, and responsible personnel may be liable for administrative penalties. To be cautious, the employers shall ensure that they have the policy in place to prevent gender discrimination in workplace, which shall cover practices that, although not intending to discriminate, are discriminatory in effect.
Affirmative duties to proactively prevent harassment
The revised law explicitly forbids unwelcomed sexual harassment of women by means of words, texts, images or physical acts. It lays out for employers a must-do list to prevent and curb sexual harassment, including having anti-sexual-harassment policy in place, arranging for trainings for employees, designating responsible personnel, developing feasible reporting mechanism, and establishing procedures for investigations (emphasising the results of which shall be provided in writing) and disciplinary actions to tackle sexual harassment risks and handle the sexual harassment incidents. Moreover, the revised law underlines the mental health of victims, as well as protection of the privacy and personal information of related individuals. While the existing version already banned sexual harassment against women, the recent amendment broadly empowers women to file lawsuits to defend themselves and further opens employers up to significant and more specific administrative as well as civil liability, and personnel directly responsible may be subject to disciplinary action. It is also noteworthy that the revised law adds a new provision that would authorise China’s procuratorates to file public interest lawsuits against employers when the latter fail to “take reasonable measures” to effectively prevent and curb sexual harassment.
Enhanced protection for female employees
The revised law requires employers to incorporate provisions on protection of rights and interests of female employees in their individual labour contracts, as well as in the collective contracts (if applicable). Such provisions may include prohibition of assignment of hazardous or harmful work to female employees during pregnancy. Another new obligation for employers is to arrange for regular health checks (screening gynecological diseases, breast diseases etc.) for female employees, aiming to strengthen special protection for women in workplace. In addition to requiring employers to prevent and stop domestic violence within the scope of their duties, the revised law places great emphasis on employer’s obligation to provide maternity protection for employees.
Given the comprehensive changes above, employers may want to kick off collating information and reviewing their employment contracts, policies, forms and practices to ensure compliance with these new reforms.