A few weeks ago, China’s Ministry of Human Resources and Social Security and its Ministry of Education (and seven other departments) released a notice regarding women’s employment. Here is a quick overview of this important notice.
The notice makes clear that gender discrimination during recruitment or in hiring is prohibited. Employers are generally prohibited from limiting the gender of candidates, giving preference to any gender, or refusing to hire women. Employers are also not allowed to engage in any of the following:
- Asking a job candidate her marital/childbirth status,
- Requiring a pregnancy test as part of an employee’s entry medical examination,
- Restricting childbearing as a condition of employment, or
- Applying a higher recruitment standard to female candidates.
If an employer is suspected of gender discrimination during the recruitment process (usually because someone has filed a complaint or reported it to the authorities), the authorities will interview/talk/meet with the employer and conduct what can be a large-scale employer investigation. Then if the gender discrimination allegations are confirmed, the employer will be ordered to take corrective measures.
An employer that refuses to talk or meet or otherwise communicate with the authorities or refuses to correct its violation after being ordered to do so, will have its information published and be “named and ashamed” via the media. Women who believe they are/were victims of gender discrimination may bring a lawsuit based on violations of their equal employment rights and if they are eligible they will receive legal aid and judicial assistance in bringing those claims.
Chinese employment authorities will “actively” audit the contents of employee recruitment information and issue orders to violators to correct job ads that contain gender-discriminatory content. If an employer publishes job postings with gender-discriminatory content, it will be ordered to make corrections according to law and if it refuses to do so, it will be fined “no less than RMB 10,000 but no more than RMB 50,000.” These violations and will go on the employer’s “human resources market integrity record” and can subject the employer to punishments for being a “serious dishonest employer.”
This notice should not change much for savvy foreign employers, but it should change everything for those not on top of their China hiring and employment game. What I mean by this is that companies that have always had their China employment lawyers monitor and audit their hiring practices and employment policies will likely not need to change much if anything. This notice will definitely bring changes, but smart employers were likely already avoiding most if not all of what will now lead to punishment, simply because discrimination on the basis of gender has never made sense and has always had its inherent risks.
But foreign companies that have ignored such things and failed to have a China employment lawyer audit and monitor their hiring documents (including their help wanted ads) and their treatment of female employees need to change things and fast. If you have employees in China or are seeking to hire employees in China you need to check NOW whether you are complying with all applicable laws. And if you are contemplating terminating a female employee who is pregnant, nursing or on maternity leave you had better be very careful in going down that path. As we wrote in Terminating China employees just got tougher the authorities are cracking down hard on employers that violate the laws on protecting female employees and — as is always the case — foreign employers are their favorite targets. If you are not positive that your China employment and hiring programs have been honed to perfection, you should get cracking now.
