The newly amended Law on the Protection of the Rights and Interests of Women, adopted by the Standing Committee of the 13th National People’s Congress on 30 October 2022, came into effect on 1 January 2023. The law imposes new requirements on employers.
Prevention and cessation of sexual harassment. The latest amendments expressly define sexual harassment of women in line with the principles on sexual harassment laid down in article 1010 of the Civil Code. They require employers to take steps to prevent and stop sexual harassment of women. These steps chiefly include formulating company rules prohibiting sexual harassment, identifying the department and persons in charge of handling sexual harassment complaints, providing education and training to employees and managers, establishing complaint channels, putting in place an investigation and disciplinary system, assisting victims in protecting their rights, providing necessary counselling, etc.
Prohibition of sex discrimination. The amendments codify and strengthen the provisions on sex-based discrimination during recruitment that are included in the Notice on Further Regulating Recruitment Activities in Order to Promote the Employment of Women issued in 2019. In particular, the law prohibits discriminatory actions such as restricting a job to men or favouring men for a job, inquiring about or investigating the marital status of female applicants (including a pregnancy test as part of the pre-employment physical examination), imposing marriage-related, maternity-related or other such restrictions as conditions for employment, and implementing different recruitment criteria for men and women.
The newly amended law prohibits employers from practising sex-based discrimination with respect to the promotion of female employees and the assessment of their professional skills. Employers must not reduce the benefits of female employees, or restrict their promotion or the assessment of their professional technical titles/positions by reason of their being married, pregnant, on maternity leave or nursing, etc.
Special protection for female employees. The amendments state that provisions for the special protection of female employees must be included in employment contracts between employers and their female employees. Collective contracts should also include provisions on the equality of men and women, and protection of the rights and interests of female employees. Employers are required to regularly arrange for their female employees to undergo gynaecological examinations, mammograms and other health check-ups addressing the special needs of women. However, the law does not specify how frequent such examinations should be.
LEGAL RESPONSIBILITY OF EMPLOYERS
The newly amended law greatly strengthens the remedies available to protect the legitimate rights and interests of women. If a woman’s rights or interests are infringed, the labour authorities, in conjunction with the labour union and the Women’s Federation, may investigate and impose a deadline for rectification. If an employer fails to take necessary steps to prevent and stop sexual harassment, the local authorities may impose punishments on the main person(s) in charge or other persons directly responsible, depending on the seriousness of the infraction.
The law also stipulates that sex-based discrimination (including but not limited to that with respect to recruitment, promotion and assessment of professional technical titles/positions) should be among the items subject to labour inspections conducted by the local labour authorities. Employers that violate relevant regulations can be fined between RMB10,000 (USD1,550) and RMB50,000. In cases of employment discrimination or sexual harassment, the local prosecutor’s offices are not only allowed to issue written suggestions, but may also initiate public interest litigation.
The amendments are the legislative response to issues of workplace sexual harassment and sex-based discrimination that have occurred frequently in the past few years. They strengthen the responsibility of the competent authorities and employers, and flesh out the available protection for the rights and interests of female employees. Employers should revise their corporate policies in a timely fashion based on the relevant provisions of the Law on the Protection of the Rights and Interests of Women, improve their prevention of sexual harassment, and strengthen their protection of the safety and health of their female employees.
Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Howard Wu (Shanghai) at email@example.com