Strengthened women’s workplace law now in effect

The Law on the Protection of Rights and Interests of Women was revised and passed by the Standing Committee of the National People’s Congress on 30 October 2022. It was implemented from 1 January 2023.

CHANGES FOR EMPLOYERS

(1) Clarification.

Article 40 of the original law prohibited sexual harassment of women and gave victimised women the right to complain to the employer and relevant authorities. However, this provision was too general.

The law’s new article 23 specifies forms of sexual harassment – including speech, text, images and physical actions – and stipulates that the employer’s unit receiving the complaint should handle it in a timely manner and inform the complainant of the handling results in writing.

Article 25 stipulates the preventive and remedial measures that employers should take towards establishing and improving rules and regulations to prevent and stop workplace sexual harassment.

(2) Prohibition of gender discrimination.

Under article 23 (1) of the original law (revised in 2018), employers must not discriminate on the basis of gender in the recruitment process, but the provision was not clear. Article 43 of the new law lists common gender discriminatory practices by employers in the recruitment process. Article 48 (1) adds that employers must:

• • Not reduce the benefits of female employees due to marriage, pregnancy, maternity leave or breastfeeding;
  • Not restrict the promotion, advancement, evaluation and recruitment of professional and technical titles and positions of female employees; and
  • Safeguard the rights of female employees more comprehensively.

Article 83 of the new law explicitly stipulates the legal liability that employers should bear for gender discrimination in the recruitment process. If an employer violates the provisions of articles 43 and 48, the Ministry of Human Resources and Social Security shall order rectification.

Persistent or serious violators face a fine between RMB10,000 (USD1,400) and RMB50,000. At the same time, article 49 of the new law stipulates that the Ministry of Human Resources and Social Security shall include anti-gender discrimination practices in the processes of recruitment, employment, promotion, evaluation of professional and technical titles and positions, training and dismissal into the scope of labour security supervision.

(3) Consequences.

Employers who violate the rights and interests of female employees may face:

• • Labour security supervision. The new law stipulates that gender discrimination by employers in the recruitment and employment process is included in the scope of labour security supervision.
    In addition, article 74 stipulates that if an employer violates the labour and social security rights and interests of women, the Ministry of Human Resources and Social Security, in conjunction with the trade union and women’s federation, can interview the employer, conduct supervision by law and require corrections within a time limit.
  • Legal liability. The new law adds several provisions to article 9 of legal liability, clearly stating the legal liabilities that employers should bear for violating the rights and interests of female employees.
    Employers who violate the law may be subject to administrative penalties such as orders of rectification, disciplinary action or fines. According to article 77, if an employer engages in such behaviour, the procuratorate can issue a prosecutorial suggestion or file a public interest lawsuit.

(4) Other new provisions include:

Employers should arrange regular health checks for female employees. Article 31(3) of the new law stipulates that employers should arrange regular gynaecological and breast disease checkups for female employees, as well as other health checkups that meet the special needs of women.

Labour and collective contracts should include special protection clauses for female employees. Article 44 of the new law stipulates that labour contracts or service agreements between an employer and a female employee should include special protection clauses for female employees.

A collective contract concluded between an employer and employees should include content related to gender equality and the protection of female employees’ rights and interests.

COMPLIANCE ADVICE

Avoid gender discrimination in recruitment and employment processes.

In the recruitment process, it is recommended that employers avoid recruiting requirements related to gender in recruitment information, and instead set requirements related to job experience, skills, education level, and relevant professional qualifications that are directly related to the job content. Avoid using restrictions on marriage and childbearing, or marital and childbirth status as employment conditions.

It is also recommended that employers avoid setting gender-related conditions in daily work promotion, title application and other employment processes. Only set information directly related to job content, provide equal opportunities to those who meet recruitment and promotion conditions, and avoid the issue of gender discrimination.

Take necessary preventive and prohibitive measures against workplace sexual harassment.

Article 25 of the new law clearly stipulates the measures that employers should take to prevent and stop sexual harassment. It is recommended that employers define workplace sexual harassment in the rules and regulations, designate specific departments and personnel to handle sexual harassment complaints, and promptly investigate and collect evidence on reported cases.

Clearly define complaint channels, including complaint hotlines and emails, and punitive measures for perpetrators. At the same time, attention should be paid to protecting the privacy and personal information of the involved parties.

Regularly arrange health checks for female employees.

It is recommended that the employer arrange regular health checks for female employees according to the provisions of article 31(3) of the new law.

Set special clauses to protect female employees in labour and collective contracts.

In accordance with the requirements of article 44 of the new law, it is recommended that employers pay attention to setting special clauses or content for the protection of female employees in labour contracts or collective contracts signed with female employees, or sign a special collective contract for the protection of female employees’ rights and interests.

Han Ying is an associate at Zhilin Law Firm