Amended Protection of Women's Rights and Interests of the People's Republic of China (‘Women's Protection Law') stipulates stronger obligations for employers to protect women's rights.
The revised Women's Protection Law was adopted on October 30, 2022, by the Standing Committee of the 13th National People's Congress. Effective from January 1, 2022, the Law brings sexual harassment and discrimination to the forefront of employers and education institutions. The draft Women's Protection Law was revised three times before its promulgation. And domestic media noted that the draft drew over 700,000 comments since its first release in December 2021, making it the most commented legislation in the recent years.
For companies in China, the amended law significantly impacts recruitment and hiring procedures and calls for robust actions to tackle sexual harassment in the workplace. The legislation also requires state departments, enterprises, and public institutions to support women in filing lawsuits. Hence, it is crucial that companies address gender equality and women's rights seriously.
In this analysis, we examine women's rights in workplace from the People's Republic of China establishment to the present. Equally, practical implications of the revised Women's Law are summarised to assist companies gearing up for legal changes.
Women's Rights in the Workplace
The Women's Protection Law was first enacted in 1992 to advance the equality of men and women and eliminate forms of discrimination against women in the workplace. However, the first women's rights in the workplace were pioneered by Chairman Mao Zedong, when the Chinese Communist Party came to power in 1949.
1949 – The Basic Law of the People's Republic of China
Prior to the founding of the People's Republic of China, women held little rights and subject to arranged marriages. After the Chinese Communist Party (‘CCP') won the civil war in 1949, gender equality was introduced in the Basic Law of the People's Republic of China (1949). Under Article 6, The People's Republic of China shall abolish the feudal system which holds women in bondage. Women shall enjoy equal rights with men in political, economic, cultural, educational, and social life. Freedom of marriage for men and women shall be put into effect.
Equally, Chairman Mao Zedong recognised that women played an equal role in society in his famous quote ‘Women hold up half the sky'. He also rallied women to join the workforce by noting ‘whatever men comrades can accomplish, women comrades can too”.
1992- Women's Protection Law
Enacted on 2 April 1992, the first Women's Protection Law provisioned women's rights in politics, culture and education, work, property, the person, marriage, and family, as well as legal liabilities.
Namely in the workplace, the Law introduces for first time equal pay and rights for men and women. It also enhances protection for women during marriage, pregnancy, maternity leave, or breast-feeding. Specifically, companies are forbidden from reducing salaries or terminating labour contracts based on such circumstances.
2005 -First Revision of the Women's Protection Law
Prior to the first revision of the Women's Protection Law (‘First Revision'), legal provisions prohibiting sexual harassment did not existed. The First Revision enables the individual female to lodge complaints with relevant government, however no legal obligations are established in the workplace.
2018 – Second Revision of the Women's Protection Law
In the second revision of the Women's Protection (‘Second Revision'), provisions on gender discrimination during recruitment and hiring are added. Specifically, the Second Revision restricts companies from refusing to hire females based on genders, raising hiring standards or imposing restrictions on marriage, pregnancy, or maternity in labour contracts.
2022 – Third Revision of Women's Protection Law
The recent revision of the Women's Protection Law (‘Third Revision') is deemed to be the most comprehensive amendment since its enactment – 30 years ago. An additional 25 articles are added to the previous 65 articles. And clear requirements are set for companies to tackle gender discrimination and sexual harassment in the workplace. Furthermore, employers are obliged to prevent and stop domestic violence within their scope of responsibilities.
The Third Revision sets stricter penalties for infringement of women's rights. With the legislation taking effect from 1 January 2023, it is imperative that employers take action to review and formulate corresponding polices and procedures. In the below, we outline practical implications for employers.
Gender discrimination during recruitment and hiring
Prior to the Third Revision, the Notice on Further Regulating Recruitment Practices to Promote Women's Employment (‘Notice') adopted on February 2, 2019, set forth provisions to directly address gender discrimination. Namely, the Notice forbids employers from the following:
- Prioritising hires or restricting access to jobs based on gender
- Refusing to hire female candidates or limiting employment opportunities for women
- Imposing higher labour standards for female employees
- Inquiring about the marital or family status of female candidates
- Requiring a pregnancy test as part of the employment medical check
- Requiring women to be childless as a condition of their employment.
The Third Revisions elevates gender discrimination to national law. It expands the Notice by detailing specific circumstances and authorising the labour administrative authority to regulate gender-equality at the workplace. Companies are prohibited from:
- only hiring males or specifying that males are preferred;
- inquiring about or investigating the marriage and childbirth status of a female job applicant;
- including pregnancy test in the entry physical examination;
- making any restriction on marriage or childbirth, or the status of marriage and childbirth as a condition for recruitment (employment); and
- other acts of refusing to recruit women on the grounds of gender or raising the standards for recruitment for women in different manners.
Companies in violation of the provisions will be ordered to rectify, any refusal to rectify or a serious circumstance will be subject to fines between 10,000 RMB to 50,000 RMB.
In practice, companies should review and update the recruitment documents including recruitment advertisement, job descriptions, registration and application forms.
Special protection for women
Under the amended law, protection for women is strengthened during employment. Specifically, companies are required to implement the following:
- special protection clauses for female employees in their labour contracts
- no labour contact restrictions on marriage and childbirth.
- collective contracts concluded by and between the employer and the employees shall include provisions on gender equality and protection of female employees' rights and interests.
- regularly health examinations to arranged for gynecological diseases and breast diseases and other examinations specifically needed for women.
The Third Version also extends the previous provisions for women during the pregnancy, maternity or nursing periods. In addition to provisions prohibiting salary reduction and employment termination during such periods in the 2018 amendment, companies are forbidden from the following:
- reducing female employee's welfare benefits
- imposing restrictions on female employees in promotion, rank rise and professional and technical titles,
In practice, companies should update labour contracts and employment policies to align with the provisions.
Sexual harassment policies
The Third Revision sets legal protocols for companies to prevent and handle sexual harassment in the workplace. Under the Criminal Law of the People's Republic of China, Article 237, sexual harassment is defined as indecent assault as ‘coercively molest others or humiliate women by violence, threat or bother means'. The amendments defines the scope of sexual harassment to include sexual harassment of women against their will by words, texts, images, physical behaviors, or any other means. It also explicitly obligates companies to formulate rules and regulations to curb and handle sexual harassment. Namely, companies shall adopt the following measures:
- specify the responsible organizational body or person in charge;
- educate and train employees to prevent and stop sexual harassment;
- adopt necessary safety and security measures;
- set up hotlines and mailboxes for receiving complaints and providing smooth complaint channels;
- establish sound investigation and handling procedures, handling disputes in a timely manner, and protect the privacy and personal information of the parties concerned;
- support and assist female victims in safeguarding their rights, and providing psychological counseling to female victims where necessary; and
- adopt other reasonable measures to prevent and stop sexual harassment.
With such stringent provisions, we recommend adopting a zero-tolerance policy to not only curb inappropriate behaviour in the workplace but also mitigate reputation damages. Company handbook should be updated accordingly to the relevant labour laws, so that employees fully acknowledge the code of conduct. Failure to implement the necessary measures to prevent and stop sexual harassment that result in the infringement of women's rights and interests or a negative social impact shall be ordered to rectify. In the case, a company refuses to rectify, or the circumstances are serious, the directly responsible managers and other directly responsible personnel shall face penalties according to the law.
The amended law substantially increases obligations for employers to protect women's rights in the workplace. With the social security department, trade union and women's federation empowered by the amendments to supervise employers and protect women's rights in the workplace, employers are subject to external stakeholders to ensure gender equality is implemented. Equally, the legal changes reflect principles of Environmental Social and Governance (‘ESG') emerging, however, governed by President Xi Jinping Thought on Socialism with Chinese Characteristics.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.