Updated and strengthened labour laws prohibit discrimination against women in recruitment and employment management.
It is important for employers to implement specific rules with clear procedures for making complaints, investigating and handling claims and details of disciplinary repercussions.
Although the famous phrase, "Chinese women hold up half of the sky", was invented when China was still an agricultural society, it still rings true today. In 2020, the number of women employed in urban areas reached 67.8 million, accounting for 43.5% (according to the National Bureau of Statistics) of mainland China's total labour force. In big cities, this figure could go even higher.
Nevertheless, women in the workplace still face more challenges than their male coworkers, ranging from gender discrimination in recruitment and promotion, to non-supportive policies during pregnancy and childcare, to higher risks of being the victims of sexual harassment. Considering the significance of women’s contribution to the Chinese economy and society, such improper treatment is not only detrimental to a company’s talent strategy, but also has negative implications on the success and growth of organisations in China.
Discrimination in recruitment
Despite the widespread condemnation of sexism, gender discrimination in the recruitment process is not rare in mainland China. According to statistics provided by Zhaopin.com, one of the most popular job sites in the country, 29.6% of the women surveyed experienced some sort of gender discrimination in their job-seeking processes. In order to reduce gender bias in hiring, companies are advised to implement concrete measures. Otherwise they may not only suffer the loss of talent but are also at a higher risk of being challenged by labour authorities.
The Law of the People’s Republic of China on the Protection of Rights and Interests of Women (the Women Protection Law) stipulates that organisations cannot refuse to employ women by the reason of gender, raise the employment expectations for women except for special types of work, or advertise that the position is unsuitable for women.
The Notice on Further Regulating Recruitment Activities and Promoting Equal Employment for Women further clarifies a range of gender discrimination behaviours which are prohibited in the recruitment process:
Restricting certain gender (except for the job scopes prohibited to be assigned to female employees) or giving priority to certain gender in the recruitment announcement;
Refusing to employ female candidates on the grounds of gender;
Inquiring female job seekers about their marriage and childbirth status;
Listing pregnancy test as one of the items for physical examination of new employees;
Imposing restrictions on childbirth as a condition of employment; and
Increasing the recruitment standards for women candidates in a differentiated manner.
Employers that release recruitment information containing contents of gender discrimination could be ordered to make rectifications in accordance with the law, and could be subject to fines ranging from RMB 10,000 to 50,000 for their failure to rectify the improper behaviours. Also, the administrative punishment imposed on any employer due to the release of recruitment information containing contents of gender discrimination could be included in the human resources market integrity record – the "name and shame" list of enterprises managed by the Ministry of Human Resources and Social Security (MOHRSS).
Equal pay for equal work
Equal pay for equal work is one of the most important principles in human resources management since remuneration is a key factor impacting motivation and relationships at work. Companies are recommended to make additional efforts to reward their workforce fairly.
Paying female employees equally is not just a legal requirement under the Women Protection Law, but can also contribute to commercial success. For instance, paying female employees on a par with the position standards will cascade a clear and positive message about the business and corporate brand. This practice could also boost productivity by attracting the best employees and reducing turnover. Furthermore, it can enhance company reputation, prevent damaged employee relations, and avoid low staff morale.
Gender equality in performance review and promotion
Article 25 of the Women Protection Law stipulates that women and men should be treated equitably in such aspects as promotion, evaluation, and determination of professional and technological titles, and discrimination against women shall not be allowed. In practice, companies may take more steps to ensure the principle of equality in hiring than in the performance review process, as the former has comparatively more concrete standards to evaluate and follow. With this in mind, it is suggested that organisations provide corresponding training to their senior management to level the playing field for male and female employees, which can help reduce talent turnover and increase efficiency, as well as elevate the company’s public image.
Special protection for female employees
Gender equality does not mean that males and females must always be treated identically and warrant the same treatment. Given the existence of biological sex differences, it is reasonable for both genders to have different legal rights in some instances and for female employees to receive special protection, especially in the biologically vulnerable periods, including menstruation, pregnancy, and breast-feeding (one year counted from the date of childbirth). Under Chinese law, the Special Provisions on Labor Protection for Female Employees set out detailed rules on work arrangements for women employees. For example, the scope of incompatible labour work for female employees prohibits work involving carrying weights that exceed 20 kg six times or more per hour, or intermittently carrying weights that exceed 25 kg. The scope of incompatible labour work for female employees during pregnancy protects women from working at premises where the density of toxic substances such as lead and mercury compounds is present.
Furthermore, female employees in China are granted extra leave related to pregnancy and childcaring, including prenatal check-up leave, maternity leave, breast-feeding leave, and childcare leave.
It is also illegal to terminate a pregnant employee during her pregnancy, maternity leave, or breastfeeding period unless the termination is requested by the employee, mutually agreed, or due to the inappropriate behaviours specified in the Labor Contract Law that constitute lawful grounds for immediate termination. If an employee gets pregnant during the term of her fixed-term contract, and the contract ends during her pregnancy, the contract shall be automatically extended (through a renewed end date or a second contract) until the end of the breast-feeding period.
Preventing sexual harassment
Chinese law explicitly prohibits sexual harassment in the workplace, with Article 1010 of the Civil Code stipulating that the victim has the right to request the perpetrators to bear civil liability for acts of sexual harassment in the forms of verbal remarks, written language, images, physical behaviours or otherwise against the will of another person, requiring employers to take reasonable measures in preventing sexual harassment and providing proper complaint channels. However, it is widely believed that the legislation and regulation pertaining to sexual harassment tend to be broad-based, preventive, and provide little detail on what exactly amounts to sexual harassment.
Considering the potentially negative impact of sexual harassment cases on businesses, in the absence of a clear and uniform legal protocol for handling sexual harassment cases, employers are recommended to clearly define what types of behaviours are inappropriate and establish a strict anti-harassment code and culture for their organisations. Specifically, employers could adopt the below anti-harassment measures:
Define what types of behaviours are inappropriate, write them into the company’s employee handbook, and stipulate that such behaviours will result in investigations and special punishments;
Provide effective complaint channels for victims to report an instance of sexual harassment and develop protocols to ensure such complaints will be managed properly;
Offer workplace education and training to prevent sexual harassment;
Clearly communicate the anti-harassment code of the company to all employees.
Complaint channels and management protocols can help employers minimise risks and losses should sexual harassment occur in their organisations. Plaintiffs should be given multiple options for reporting so that they can choose the option that they feel the most comfortable with. Depending on the company size and structure, the sexual harassment case can be reported to the HR function, the relevant manager or supervisor, the owner or executive, or via a dedicated sexual harassment complaint system. For foreign companies or small branch offices, employees should be given the option to report directly to the headquarters.
Laws set the minimum standard for ethical behaviours. A strong and well-developed company framework to address gender discrimination and sexual harassment in the workplace contributes towards boosting office morale, elevating productivity, and, most important of all, the healthy development of the business in the long haul.
考慮到性騷擾案件的潛在負面影響, 在沒有一個明確的和統一的法律體系處理性騷擾的情況下, 我們建議僱主在公司規章制度中清晰地定義什麼類型的行為是不恰當的, 並在企業中建立嚴格的反騷擾文化。具體而言，僱主可採取以下反騷擾措施: