China has introduced a new legislative amendment revising the Women’s Protection Law, which was first introduced in 1991, to address workplace gender discrimination and sexual harassment. The amendment, which took effect on January 1, 2023, increases employers’ responsibilities to prevent and address discrimination and harassment in the workplace, in addition to China’s new Civil Code. Key revisions include the following:
- Prohibition of workplace gender discrimination. The revised law explicitly prohibits specific practices of discrimination against women by employers in the recruitment and hiring process, including banning pregnancy tests during recruitment. Some employers have retaliated in response to pregnancy and maternity leave rights through disguised wage cuts. The impact of these discriminatory acts by employers could serve to dissuade other employees from becoming pregnant. The new law prohibits this type of discrimination and provides enhanced protections and support for women to better balance childbirth and career. The law also prohibits employers from reducing female employees’ wages and benefits, limiting promotions and rank advancement, or making changes to titles and positions due to circumstances such as marriage, pregnancy, maternity leave, and breastfeeding. If the employment contract expires during an employee’s pregnancy or while she is legally entitled to maternity leave, the term of the employment contract will be automatically extended until the end of the maternity leave. However, this extension will not apply if the employer lawfully terminates or ends the employment contract, or if the female employee lawfully requests the termination or ending of the employment contract. The revised law requires employers to investigate and promptly respond to complaints of improper contract termination, as well as other complaints and reports about violations of women’s lawful rights and interests.
- Sexual harassment prevention and education. The revised law explicitly forbids sexual harassment of women through spoken language, text, images, or physical conduct. Employers are now required to take reasonable measures to prevent, receive complaints about, and investigate incidents of sexual harassment in the workplace. Such measures include establishing comprehensive internal policies, complaint procedures, and employee education and training to raise awareness about and prevent sexual harassment. The revised law also requires employers to protect the privacy of individuals involved in sexual harassment complaints and investigations by keeping confidential the identities of complainants, accused parties, and witnesses.
- Special provisions related to the protection of female employees. The revised law requires that employment contracts and service agreements include special provisions related to the protection of female employees. Due to the effective date of the new law, employment contracts signed before January 1, 2023, do not need to be supplemented in principle. However, employment contracts signed after the new law’s effective date must include special provisions with content related to the protection of female employees.
- Liability for noncompliance. An employer that fails to comply with the revised law or make corrections after receiving a warning from the local labor authority may be fined RMB 10,000 to RMB 50,000 per incident, and the company’s legal representatives or the person responsible may be personally liable for administrative penalties. The revised law also authorizes China’s prosecutors to file public interest lawsuits against employers that fail to take reasonable measures to prevent and curb sexual harassment.
On March 8, 2023, the Ministry of Human Resources and Social Security, in conjunction with five other government departments, issued reference documents (rather than mandatory regulations) related to the revised law: the Rule of the Special Labor Protection of Female Employees in the Workplace and the Rule for the Elimination of Sexual Harassment in the Workplace. Companies with operations in China will want to familiarize themselves with the revised law and the reference documents and implement the necessary policies, contract provisions, and procedures to comply with the law’s requirements.
Ogletree Deakins’ Cross-Border Practice Group will continue to monitor developments with respect to the Women’s Protection Law and will post updates on the firm’s Cross-Border blog. Important information for employers is also available via the firm’s webinar and podcast programs.