January 2023
Joyce Wen and Teresa Huang
On October 30, 2022, the 37th Session of the Standing Committee of the Thirteenth National People’s Congress of the People’s Republic of China adopted the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests (“New Law”), which shall come into effect on January 1, 2023. The New Law provides for various types of women’s rights and interests, including new requirements on employers regarding women’s labor rights and interests. The purpose of this article is to explain some of these provisions.
1. Eliminating gender discrimination
The Article 43[1] of the New Law expresses by way of enumeration the acts that employers shall not commit in the recruitment (hiring) process. As to this provision, employers should pay special attention to re-examine the existing employment system, recruitment policies and other documents to avoid establishing recruitment standards and conditions that discriminate against women. Any employer who violates this provision will be subject to relevant administrative penalties.
2. Cracking down on sexual harassment in the workplace
Article 23 of the New Law forbids sexual harassment of women against their will by words, texts, images, physical acts, or any other means. This provision is consistent with the definition of sexual harassment in Article 1010 of the Civil Code of the People’s Republic of China, and includes words, texts, images, and physical acts as some of the forms of sexual harassment, which will lower the threshold for the recognition of sexual harassment and have a better deterrent effect on the prevention of sexual harassment in the workplace. What is particularly important for employers to note is that Article 25 of the New Law stipulates clearly the measures that employers shall take to prevent and stop sexual harassment[2], and Article 80[3] of the New Law clarifies the legal liability of employers who fail to take relevant measures to prevent and stop sexual harassment. Therefore, employers are reminded to amend the relevant rules and regulations in accordance with the provisions of the New Law.
3. Adding the special protection for female workers
Article 31 of the New Law stipulates that employers shall regularly arrange health examinations for their female employees for gynecological diseases and breast diseases and other examinations specifically needed by women, and other health examinations for women’s special needs. Meanwhile, Article 44 explicitly provides that employers shall include special protection clauses for female employees in their labor contracts. This provision imposes new requirements on the labor contracts of employers and should be taken seriously.
The above analysis shows that the New Law has put forward more new requirements for employers. It is recommended that employers should carefully study the New Law to ensure that the relevant contracts and systems meet the legal requirements.
[1] Article 43 of the New Law: In the recruitment (hiring) process, employers are explicitly prohibited from taking any of the following acts: (1) only hiring males or specifying that males are preferred; (2) inquiring about or investigating the marriage and childbirth status of a female job applicant; (3) including pregnancy test in the entry physical examination; (4) making any restriction on marriage or childbirth, or the status of marriage and childbirth as a condition for recruitment (employment); and (5) other acts of refusing to recruit women on the grounds of gender or raising the standards for recruitment for women in different manners.
[2] Article 25 of the New Law: Employers shall take the following measures to prevent and stop sexual harassment of women: (1) formulating rules and regulations that prohibit sexual harassment; (2) specifying the responsible organizational body or person in charge; (3) carrying out education and training activities to prevent and stop sexual harassment; (4) adopting necessary safety and security measures; (5) setting up hotlines and mailboxes for receiving complaints and providing smooth complaint channels; (6) establishing sound investigation and handling procedures, handling disputes in a timely manner, and protecting the privacy and personal information of the parties concerned; (7) supporting and assisting female victims in safeguarding their rights, and providing psychological counseling to female victims where necessary; and (8) adopting other reasonable measures to prevent and stop sexual harassment.
[3] Article 80 of the New Law: Anyone who commits sexual harassment against women in violation of the provisions of this Law shall be given criticism and education or issued a caution by the public security authorities and shall be punished by his employer in accordance with the law. If a school or employer violates the provisions of this Law and fails to take necessary measures to prevent and stop sexual harassment, resulting in the infringement of women’s rights and interests or a bad impact on society, the superior authority or the competent department shall order it to make rectification. If the employer refuses to rectify or the circumstances of violation are serious, the person directly in charge and other persons directly responsible may be imposed with punishments according to law.
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