Recent Trends in Chinese Law

The Chinese Government issued the Circular on Further Regulating Recruitment Practice to Promote Female Employment (Circular) on 18^th February 2019, aiming to facilitate equal employment of females and eliminate gender discrimination in the recruitment activities of companies. This is a positive move, reflected in recent years at both national and local levels, which introduced wide-ranging provisions aimed at ensuring businesses in the Chinese marketplace address the issues of inequality in the workplace head on. Veronica Gianola and Shane Farrelly of D’Andrea & Partners dissect the relevant policies, sanctions for non-compliant companies and the current status of gender inequality in the modern Chinese workplace.

Gender equality In China
Over the last few years, the issues of gender inequality as well as discrimination based on gender in the workplace have come to the forefront globally, especially with the emergence of the #MeToo movement and the HeForShe campaign initiated by UN Women. This trend may also have significant relevance for the Middle Kingdom, as World Bank data for 2019 showed that China has a female labour force participation rate of 61 per cent;[i] a number higher than the rate for men in some developed countries. Therefore, a consolidated move towards improving gender neutrality in the workplace is not only ethically but also economically required in China.

Workplace discrimination based on gender—whether it be through established stereotypical gender roles or the perceived additional costs of hiring female employees—is often to the forefront of the mind for many human resources personnel of companies in China. This is because, according to law, female employees are entitled to paid maternity leave, post-maternity leave,  and certain allowances in relation to leave for the care and maintenance of their child/children as well as certain restrictions on termination.

The right to gender equality is enshrined in the constitution of the People’s Republic of China. However, discrimination in hiring is clear to see, as job ads often specify a requirement or preference for male applicants.

Recent moves in the right direction
In recent years, several provinces such as Jiangsu, Shandong and Shenzhen have issued regulations in relation to gender-neutral treatment in the workplace. This is a continuing trend which sees new standards and practices set to ensure gender equality.

In Shenzhen, the Notice on Standardising Decision-making on Administrative Penalties Under the Shenzhen Regulations on the Promotion of Sex Equality stipulates that administrative penalties will be placed on any employer imposing gender-biased hiring restrictions during the recruitment process.

In Jiangsu Province, the Special Provisions of Jiangsu Province for Labour Protection of Female Employees prohibits employers from restricting, refusing or setting higher job qualification standards for hiring female employees. Additional provisions state that an employment contract with a female employee may not seek to restrict her rights to marriage and bear children.

In addition, sexual harassment in the workplace has also been brought to the forefront in Jiangsu with the formulation of anti-sexual harassment workplace policies, such as providing training to employees and establishing an employee complaint channel.

In terms of female employee protection related to childbirth, the provisions address and clarify several key issues on maternity leave, nursing leave and other benefits, stipulated more generous miscarriage leave than under national law, and include greater rest entitlement and working hour restrictions in the first and last trimesters of pregnancy.

National-level protection
At national level, the Circular addresses inequality in the workplace during recruitment. It also stipulates that when making recruitment plans, publishing related information and hiring employees, employers should not:

1. Confine the job to a specific gender or set a preference for a specific gender;
2. Restrict females’ job applications or refuse to hire female candidates due to gender;
3. Inquire about female candidates’ marital and parentage status during the recruitment process;
4. Set a pregnancy test as part of employment health assessments;
5. Impose restrictions on pregnancy and set it as a condition for employment; or
6. Set higher recruitment standards for female candidates.

The Circular also seeks to establish a joint interview mechanism, under which authorities will hold a joint interview to talk with those employers on suspicion of gender discrimination during the recruitment process, according to whistleblower reports and complaints they have received; employers will be investigated and punished if they refuse to comply or to make corrections upon such discussions with the relevant authorities, and their illegal practices will be exposed among the general public through the media.

As is also stipulated in the Circular, if employers publish recruitment information with gender biased content, they shall be ordered to correct it in accordance with the regulation. If the employers fail to do so, a fine of between Chinese yuan (CNY) 10,000–50,000 may be imposed. In addition, the administrative sanctions may be recorded in the company’s human resource integrity record system and announced to the public. In more serious cases that also involve human resources service agencies, their licence can be revoked.

Concluding thoughts
It is clear that the Chinese authorities are attempting to address inequality in the workplace, as measures such as the Circular and local regulations seem to be part of an overall scheme to eliminate gender discrimination in employment and provide equal job opportunities for all.

D’Andrea & Partners Legal Counsel, DP Group was founded in 2013 by Carlo Diego D’Andrea and Matteo Hanbin Zhi, both of whom have extensive backgrounds in Chinese and EU law. DP Group currently has four service entities: D’Andrea & Partners Legal Counsel, PHC Tax & Accounting Advisory, EASTANT Communication and Events, and Chance & Better Education Consulting. DP Group has a variety of branches around the world, with locations in several major developing economies.

[i] https://data.worldbank.org/indicator/SL.TLF.CACT.FE.ZS