China amended its Women’s Protection Law on 30 October 2022, aiming to give women stronger protection against sexual harassment and gender discrimination. The law took effect on 1 January 2023, and has added several provisions that shall impose new requirements on businesses regarding female employee management. We discuss the key implications of the new Women’s Protection Law for employers in China.
On 30 October 2022, the Standing Committee of the 13th National People’s Congress, China’s top legislative body, passed the revised Law on the Protection of Women’s Rights and Interests (hereinafter referred to as the “Women’s Protection Law”). The amended Women’s Protection Law, which will take effect on 1 January 2023, added nearly 30 new provisions to enhance women’s protection in areas like gender equality in recruitment and contract negotiation, employer’s obligation in sexual harassment prevention, and relief measures to women should their rights and interests being harmed.
The exposure draft for the Women’s Protection Law amendment garnered more than 700,000 comments during the seeking opinion stage, making it the legislative document that was commented on the most in recent years. The law was amended in 2005 and 2018, respectively, after being first enacted in 1992.
Given the urgency for businesses to comply with these amendments and the importance for them to develop formal processes to handle issues related to gender discrimination and harassment in the workplace, we discuss key considerations in the new Women’s Protection Law for employers.
What Are Key Changes in China’s New Women’s Protection Law?
Several articles contained in this revision involve the protection of the rights and interests of women employees, which deserves the attention of employers. Below is a list of the key changes.
Eliminate gender discrimination in the hiring process—Despite the widespread condemnation of sexism, gender discrimination in China’s hiring practices is a common occurrence. The new Women’s Protection Law makes a more concerted effort to eliminate gender bias in the hiring process.
The law stipulates a list of behaviors that employers are prohibited from engaging in during the recruitment process, which include the following:
- Restricting a job offer specifically to men or specifying that men will be given priority.
- Inquiring or investigating the marital and maternal situation of women job applicants.
- Requiring pregnancy tests as an entry physical examination item when applying for a job.
- Making marriage or maternity status a condition for recruitment and employment.
- Refusing to hire women on the grounds of gender or raising the standards for the recruitment process of women in any other way.
In addition, the new Women’s Protection Law incorporates gender discrimination in the workplace into the scope of labour security supervision. Should an employer violate gender-equality provisions, the human resource and social security authorities shall order it to make corrections. If the employer refuses to make corrections or the circumstances are serious, the employer shall be fined no less than RMB 10,000 but not more than RMB 50,000. Through this, the non-discrimination-related provisions in the new Women’s Protection Law are expected to be better implemented in practice.
Employers are advised to double-check whether the above behaviors exist in their recruitment process and if so, make corresponding compliance adjustments according to the requirements of the new Women’s Protection Law.
Protect female employees’ birth rights—The new Women’s Protection Law stipulates that “the employer shall not, due to marriage, pregnancy, maternity leave, breastfeeding, and other circumstances, reduce the wages and welfare benefits of female workers, restrict the promotion, evaluation, and employment of female workers of professional and technical titles and posts, dismiss female workers, unilaterally dissolve the labour (employment) contract or service agreement.”
The 2018 version of the Women’s Protection Law only stipulated that “the employer shall not, due to marriage, pregnancy, maternity leave, breastfeeding, and other circumstances, reduce the wages of female workers, dismiss female workers, and unilaterally dissolve the labour (employment) contract or service agreement.”
In comparison, the new Women’s Protection Law is a big step further toward protecting female employees’ birth rights and addressing gender equality in performance reviews and promotions.
Prevent sexual harassment—Chinese law specifically forbids sexual harassment in the workplace, and Article 1010 of the Civil Code stipulates that employers must take reasonable steps to prevent sexual harassment and provide appropriate channels of complaint.
The new Women’s Protection Law defines sexual harassment as the form of verbal remarks, written language, images, physical behaviors, or other actions against the will of women.
Specifically, women who are victims of sexual harassment are encouraged to do the following:
- Lodge complaints with relevant units and state organs
- Report the case to the public security bodies, or filing a civil lawsuit in the people’s court, requesting the perpetrator to bear civil liability in accordance with the law
The revised Women’s Protection Law makes clear that it is the legal obligation of employers to take measures to prevent sexual harassment, including the following:
- Formulate the rules and regulations prohibiting sexual harassment in the workplace.
- Specifying the responsible department or personnel.
- Carrying out education and training activities on prevention and stopping sexual harassment.
- Taking necessary security and safeguard measures.
- Setting up a complaint telephone, mailbox, etc., and unblocking complaint channels.
- Establishing and improving investigation and handling procedures, timely handling of disputes, and protecting the privacy and personal information of the parties concerned.
- Supporting and assisting female victims in defending their rights according to law and providing psychological counseling to female victims when necessary.
- Other reasonable measures to prevent and stop sexual harassment.
Moreover, the new Women’s Protection Law stipulates that the employer could be subjected to criminal litigation should they fail to take reasonable measures to prevent and stop sexual harassment, and the directly responsible person and other directly liable persons shall have sanctions imposed on them according to the law.
Considering the increasingly stringent requirement of sexual harassment prevention under the new Women’s Protection Law and the potentially tremendous and negative impact of sexual harassment cases on businesses, employers in China are advised to clearly define what types of behaviors are inappropriate and establish a strict anti-harassment code and culture for their businesses.
Examples of the types of behavior that are explicitly prohibited includes the following:
- Unwanted touching, bodily contact, or flirtatious behavior
- Repeated requests for dates or get-togethers
- Inappropriate jokes, comments, or gestures
- Displaying or playing inappropriate or sexually explicit videos or music
The anti-harassment policy, as previously stated, should be clearly outlined in the company’s employee handbook.
Protect the privacy and personal information of women—The new Women’s Protection Law also provides stronger protection of women’s privacy and personal data. Article 28 states that:
- Media reports on incidents involving women should be objective and appropriate and should not infringe on women’s personal rights and interests.
- It is forbidden to demean women through mass media or other means.
- Women’s photos must not be used without consent in advertisements, trademarks, exhibition windows, newspapers, periodicals, books, audio-visual products, electronic publications, and networks, etc.
Women who are victims of the above-mentioned violations are entitled to apply to the people’s court for a personal safety protection order.
Where Do Women in China Stand in the Workforce?
Recent studies proposed that the participation of women in the workforce in China has substantially decreased over the past 30 years, falling to 60.5% in 2019 from 73.2% in 1990. Economic reforms that caused disadvantages for women, such as a rising gender wage gap, a shortage of childcare and eldercare choices, and a recurrence of old prejudices about women’s labour, have likely contributed to this.
Despite much progress, there is still a sizable salary difference for women. According to a survey by the employment website Zhipin.com, the average income for urban men in Mainland China in 2019 was 22.5% higher than that of women. In other words, women in China made 84% of what men made for comparable employment in 2019.
The barriers women encounter in some industries account for part of the salary disparity, as Chinese women find it extremely challenging to enter some professions. Some sectors in China, such as the military and some sciences, still impose restrictions on women, which may have long-term effects on their career growth. Moreover, such jobs are also typically paid higher salaries.
According to data from MSCI’s annual Women on Boards report, the average female directorship for Chinese companies stood at 13.8% in 2021, compared to 22.6% globally and 14.5% for developing economies.
However, China performed better in comparison to other neighbouring economies, such as Japan and South Korea, where women made up 12.6% and 8.7% of board directors, respectively.
In 2021, only 6.4% of the companies’ CEOs were women, while women CFOs stood at 26.3%—above the worldwide average.
What Is China Doing to Increase Female Workers’ Participation?
As the country struggles to deal with a demographic problem, a string of gender-related scandals have also sparked public outcry over gender inequality. Consequently, in 2021, the government unveiled a new 10-year plan, the Outline of Women’s Development in China (2021-2030), with a strong emphasis on employment rights. The document proposed 75 main goals and 93 supportive measures, covering key areas including health, education, and the economy.
The Outline suggests that by 2030, the basic national policy of equality between men and women will be thoroughly implemented, and the institutional mechanisms to promote equality between men and women and the all-round development of women will be innovated and improved, as part of the government’s major efforts to eliminate discrimination and improve the status of women in China.