Whilst the new rules cover all aspects of women’s lives, we take a look at some of the key changes from an employment perspective. Employers must ensure that they have appropriate mechanisms, policies and procedures in place to ensure compliance with the amended law.
Prevention of gender discrimination during the recruitment process
What does the amended law say? The provisions on gender discrimination during the recruitment process under the previous law were general and only prohibited employers from refusing to hire women because of their gender. The amended law now expressly prohibits employers from doing any of the following acts during the recruitment process:
- Limiting job offers to males or giving priority to males;
- Enquiring about the marital and maternity status of female candidates;
- Requiring pregnancy tests during an onboarding physical examination; and
- Including restrictions on marital status or childbirth as a requirement for recruitment.
What are the consequences in case of breach? Should an employer violate the above provisions, the relevant authorities can order the employer to take corrective action. Failure to do so, or in cases of serious violations, may result in fines of between RMB 10,000 – 50,000 (approx. USD 1,500 – 7,500).
What should employers do to ensure compliance? Review relevant recruitment documentation and practices – such as job advertisements, interview guidance, recruitment questionnaires and onboarding / medical forms and provide training to those involved in the recruitment process.
Employment contracts and health checks
What does the amended law say? The amended law imposes the following obligations on employers:
- Incorporate provisions on the protection of rights and interests of female employees in individual labour contracts and collective contracts (if applicable). The amended law does not specify the content of such provisions but could include banned types of work for female staff, special protections during pregnancy, equal employment opportunities and equal pay. At the very least, a general provision addressing female protection should be included; and
- Arrange regular health checks, specifically needed for women (e.g. screening gynaecological diseases, breast diseases etc.)
What are the consequences in case of breach and what should employers do to ensure compliance? Whilst the amended law does not specify sanctions or penalties in case of breach of the above obligations, employers should not automatically dismiss them for this reason. Employers should see these as beneficial steps to take towards strengthening the company’s talent strategy, developing gender equality in the workplace and promoting and protecting women’s health.
Prevention of sexual harassment
What does the amended law say? Chinese law has long included provisions prohibiting sexual harassment in the workplace and stipulated employers must take “reasonable steps to prevent sexual harassment and provide appropriate channels of complaint”. However, the amended law, for the first time at national level, sets out a “must do list”, explicitly requiring employers in China to take specific measures to prevent and curb sexual harassment towards female employees:
- Formulate rules and regulations against sexual harassment;
- Arrange for training for employees to prevent sexual harassment;
- Designate responsible personnel for dealing with sexual harassment claims;
- Adopt necessary safety and security measures;
- Set up complaint telephone lines, mailboxes etc;
- Establish sound investigation and discipline procedures, including promptly addressing disputes and protecting the privacy and personal information of the parties involved;
- Support and assist female victims in defending and exercising their legal rights; and
- Provide psychological counselling for female victims when necessary.
What are the consequences in case of breach? Should employers fail to take the necessary measures to prevent sexual harassment in the workplace, the competent authority make order them to take the necessary corrective action. Failure to do so, or in the cases of the most serious violations of the law, could result in fines of between RMB10,000 – 50,000 (approx. USD 1,500 – 7,500) and personnel at the company responsible for dealing with sexual harassment could be liable for administrative penalties.
What should employers do to ensure compliance? Revisit HR rules and regulations, including the Staff Handbook and template employment contracts, and assess current processes and practices relating to sexual harassment. If necessary, make adjustments to ensure compliance with the amended law.
Please get in touch with our MDR ONE team if we can help with providing any further details on the above or assisting in reviewing employment contracts and policies, as needed for compliance.
