China: Amendment of the Law on the Protection of Women's Rights – recommendations for action

published on 24 March 2023 | reading time approx. 8 minutes

The rights of women in both society and the workplace, general equal treatment and the protection of specific interests of women are the focus of the amended Law on the Protection of the Rights and Interests of Women (the "Law") and other regulations adopted in this regard. These also place particular obligations on employers. After a detailed examination of the legal background, this article is dedicated to practical recommendations for employers with regard to the specific requirements of the Law.

• Recommendations for action »
  

• Prohibition of gender discrimination in recruitment »
  

• Prohibition of unequal pay »
  

• Prohibition of gender discrimination during employment »
  

• Prohibited regulations and mandatory protective provisions in employment contracts and special protective measures »
  

• Protection against sexual harassment »
  

• Establishment of a reporting office »
  

  
  

Recommendations for action

Companies are strongly advised to review internal regulations such as the Code of Conduct, the employee handbook, instructions and work rules, existing employment contracts, but also customary practices and even premises such as locker rooms, sanitary areas, etc. to ascertain whether they need to be revised and adapted in light of the requirements of the amended Law. In addition, the Law requires the establishment of a reporting system or hotline to which victims of sexual harassment can report and which shall take appropriate action. Negligence and omissions can not only lead to penalties and fines for the company and the persons respon­sible, but there is also the threat of inclusion in "black lists" and considerable damage to the company's reputation (classic media, social media).

In the following, general recommendations for action on the various aspects of the Law are presented in more detail. These are not exhaustive and, of course, it also depends on the individual situation in each company which actions may become necessary.

Prohibition of gender discrimination in recruitment

43 of the Law specifies various prohibitions and other discrimination against women in the course of the recruitment process. Recommendations for action are therefore:

• checking the wording of job advertisements for possible disadvantages or discrimination
• if recruitment service providers are used: requesting appropriate assurances or evidence of their compliance with the Law
• reviewing and adapting the interview process, in particular avoiding gender-specific questions such as childbearing preferences or marital status
• training and awareness-raising of HR managers, together with documentation of the same, in particular with regard to prohibited and discriminatory questions
• adaptation of any existing catalog of questions for job interviews
• recording of the content of recruitment interviews
  

However, exceptions exist where regulated by the state. For example, there are activities whose professional practice is prohibited or restricted for women (see more on this below).

Prohibition of unequal pay

Article 45 of the Law explicitly requires that male and female employees be paid equal wages/equal salary for equal work. Apart from the legal obligation, there are other good reasons to end the gender pay gap, e.g.:

• remuneration as an essential motivating factor
• remuneration as a stabilizing factor for the working atmosphere (avoidance of poor morale and begrudging relations among employees)
• positive effects on the reputation and standing of the company (corporate culture)
• contribution to economic success through improved productivity
• attraction of highly educated graduates and employees willing to change jobs
• reduction of employee turnover, which is common in China
• equal appreciation of the work of female employees
  

Prohibition of gender discrimination during employment

Article 46 of the Law prohibits gender-based discrimination during employment. The regulation thus specifi­cally targets discriminatory rules regarding professional titles, performance evaluations, promotions, etc., and stipulates that male and female employees must be treated equally.
 
Recommendations for action are therefore:

• review of existing procedures related to performance evaluation for potentially discriminatory evaluation aspects and adjustment of internal policies as necessary
• training of managers responsible for performance evaluation
• transparent regulation with regard to professional titles and promotions
  

Prohibited regulations and mandatory protective provisions in employment contracts and special protective measures

The background to these provisions, particularly in Articles 44, 47 and 48 of the Law, is that the principle of equal treatment of men and women cannot always be upheld, particularly for biological reasons, and thus the granting of different rights is appropriate and justified. This applies in particular to the period of menstruation, pregnancy and breastfeeding (one year from delivery).
 
Article 44 of the Act provides for prohibited and mandatory provisions in employment contracts with female employees. Prohibited provisions mainly concern provisions that are detrimental to the female employee in the event of marriage, childbearing or pregnancy and maternity.
 
The special protection provisions are regulated primarily in Articles 47 and 48 of the Law. The background to the regulations are, in particular, biological differences between the genders and the special need for protec­tion of women during menstruation, pregnancy and breastfeeding. The protective provisions relate primarily to three areas: work as such with regulations on special activities, working hours and the granting of special leave.
 
In this context further protective provisions in other laws must be observed. This applies in particular to the Labor Law. Articles 58 et seq. of the Labor Law regulate activities that are generally prohibited for female employees, as well as restrictions on areas of activity during pregnancy and while breastfeeding. Prohibited activities include, among others, underground mining activities and physically labor-intensive class 4 work according to the state classification standards for physically labor-intensive work. Work at high altitudes, low temperatures, cold water, or class 3 physically labor-intensive work may not be performed by women during menstruation. During pregnancy, women are not allowed to work in areas where they may be exposed to certain toxic substances, radioactivity, or also substances used in the manufacture of medicines. In addition, there are stricter regulations for work at high altitudes, at low or high temperatures, in cold water, at certain noise levels, in physically labor-intensive activities, with strong vibrations, in closed rooms or high-pressure chambers. Most restrictions that apply to pregnant women also apply during breastfeeding.
 
In principle, an employer must reduce the workload of a pregnant employee or assign her to another job if the pregnant employee is unable to perform her original job. From the seventh month of pregnancy and during the breastfeeding period, working hours may not be extended or night shifts ordered.
 
Finally, employers are obligated to allow a pregnant employee to participate in preventive medical checkups (paid leave), as well as provide entitlements to statutory leave during pregnancy, maternity leave, breastfeeding leave, and childcare leave.
 
In addition, female employees enjoy protection against dismissal during pregnancy and the breastfeeding period (unilateral termination by the employee and mutually agreed termination of the employment contract remain possible). In the case of fixed-term employment contracts that expire during pregnancy, the employment contract is automatically extended until the end of the breastfeeding period.
 
Recommendations for action:

• examination of employment contracts for the existence of prohibited provisions (e.g. reduction of wages in the event of pregnancy or provisions deviating from the statutory regulations with regard to special leave in the event of marriage, maternity leave) and adjustment if necessary
• examination of employment contracts with regard to the granting of statutory leave entitlements in the event of pregnancy and during the breastfeeding period
  
• review of local regulations regarding additional leave days in addition to those granted at the state level
• training of managers on the restrictions on the areas in which female employees can be deployed and appropriate recording
• adjustment of duties of female employees during pregnancy and breastfeeding period
  

Protection against sexual harassment

Article 23 of the Law prohibits the sexual harassment of women and grants affected women the right to turn to institutions and law enforcement agencies, which must investigate respective reports. Article 1010 of the Civil Code also grants affected women a civil claim for damages against the perpetrator. Article 237 of the Criminal Law provides for imprisonment of up to five years for anyone who indecently touches or insults a woman by force, coercion, or other violent means. In addition, Article 25 of the Law stipulates requirements for employers to prevent and protect women from sexual harassment.

A common characteristic of the various legal regulations is that sexual harassment is only insufficiently de­fined. Employers should therefore include their own clear definition of sexual harassment in their internal regulations and clearly state the consequences for a perpetrator in order to protect their own female employ­ees, but also to establish protection for the company itself, as cases of sexual harassment and the company's response to them can have an enormous impact on its reputation. Companies can therefore take the following measures against sexual harassment:

• review and, if necessary, revision of the employee handbook: definition of inappropriate behavior, regulations regarding internal proceedings and possible consequences for the perpetrator as well as appropriate infor­mation and distribution of the employee handbook against acknowledgement of receipt
• provision of a contact person or a complaints office (see below)
• training and instruction for managers as well as all employees, including documentation thereof
• if necessary, transfer or leave of absence of the offender already during the investigation
• regular re-evaluation and adjustment of existing regulations
• strict protection of confidentiality and privacy of affected employees
  

Establishment of a reporting office

As already addressed here on Article 25 of the Law and in the preceding section, employers have special obli­gations to enforce the Law and protect women.  In addition to introducing appropriate internal regulations, conducting training, etc., employers are also obliged to follow up on tips, complaints, reports, etc. from victims of sexual harassment or violence and to provide them with support. For this purpose, the establishment of an appropriate reporting office is recommended. The reporting office should be located directly with the manage­ment, also in order to prevent complaints from victims of sexual harassment from being delayed or withheld by their superiors or other employees of the company. The tasks of such a reporting office include in particular:

• provision of a complaints hotline, a mailbox and other contact options
• conducting training for managers and employees
• enforcing and monitoring measures to protect against sexual harassment and violence
• ensuring that reports are processed and that management is kept informed
• implementing or improving the investigation and handling process, especially timely processing and measures to protect the personal data and privacy of the parties involved
• supporting and assisting female victims in defending their rights under the Law and providing psychological counseling to female victims when necessary (e.g., referring victims to external counseling services)
• involvement of law enforcement authorities in serious cases (e.g., if there is suspicion of an offense prosecutable under criminal law and/or other relevant laws)
  

The reporting office should also be open to corresponding information from third parties while protecting their privacy (personal data), i.e. not only for those affected and victims of sexual harassment, but also, for example, for colleagues who have witnessed sexual harassment or have heard of incidents of sexual harassment without the victim having contacted the reporting office (so far). If a reporting office already exists in the company, for example as part of a general whistleblower system or as part of the implementation of other compliance obliga­tions, the above tasks and obligations can be assumed by this reporting office.
 
Employers should not underestimate the consequences of sexual harassment in their own company. In addition to the criminal and civil liability of the perpetrator, there are a large number of judgments in which the employer was also sentenced to pay compensation as well as fines for lack of care and lack of internal rules and mea­sures to protect against sexual harassment.
 
In the course of internal investigations of sexual harassment, employers must also bear in mind that they are not generally entitled to the same rights as the criminal prosecution authorities and must also respect the right to reputation and privacy of the perpetrator. Knowledge of what is legally permissible is therefore required.