Respect and Protection: How Should You Manage Your Female Employees in China?

Posted by Written by Qian Zhou Reading Time: 9 minutes

Though the famous phrase, “Chinese women hold up half of the sky,” was invented when China was still an agricultural society, it is still true today. In 2020, the number of women employed in urban units reached 67.8 million, accounting for 43.5 percent of the total labor force. In big cities, this figure could be even higher.

Nevertheless, women in the workplace still face more challenges than their male coworkers, ranging from gender discrimination in recruitment and promotion, non-supportive policies for their pregnancy and childcare, as well as higher risks of being the victims of sexual harassment.

Considering the significance of women’s contributions to the economy and society, such improper treatment is not only detrimental to a company’s talent strategy, but also has negative implications on the success and growth of your businesses in China.

In the event of the 112th Women’s Day anniversary, we put together this article to discuss some best practices and fair policies when managing your female employees in China.

Non-discrimination in recruitment

Despite the widespread condemnation of sexism, it is not rare to observe gender discrimination existing in the recruitment process in China. According to statistics provided by Zhaopin.com, one of the most popular job sites in China, 29.6 percent of women surveyed experienced some sort of gender discrimination in their job-seeking processes.

Companies must take concrete measures to reduce gender bias in hiring, or else they may not only suffer the loss of talent but are also at a higher risk of being challenged by labor authorities.

The Law of the People’s Republic of China on the Protection of Rights and Interests of Women (the Women’s Protection Law) stipulates that companies cannot refuse to employ women by reason of sex or raise the employment expectations for women, except for special types of work or advertise that the post is unsuitable for women.

The Notice on Further Regulating Recruitment Activities and Promoting Equal Employment for Women further clarifies that the below gender discrimination behaviors are prohibited in the recruitment process:

  • Restricting certain gender (except for the job scopes prohibited to be assigned to female employees) or giving priority to certain gender in the recruitment announcement;
  • Refusing to employ women candidates on the grounds of gender;
  • Inquiring female job seekers about their marriage and childbirth status;
  • Listing pregnancy test as one of the items for physical examination of new employees;
  • Imposing restrictions on childbirth as a condition of employment; and
  • Increase the recruitment standards for women candidates in a differentiated manner.

Employers that release recruitment information containing contents of gender discrimination will be ordered to make rectifications in accordance with the law and will be subject to fines ranging from 10,000 to RMB 50,000 if failing to rectify the improper behavior.

Also, the administrative punishment imposed on any employer due to the release of recruitment information containing contents of gender discrimination will be included in the human resources market integrity record, the name and shame list of enterprises managed by the Ministry of Human Resources and Social Security (MOHRSS).

Equal pay for equal work

Equal pay for equal work is one of the most important principles in human resources management as remuneration is a key factor affecting motivation and relationships at work.

Women earn 77 cents for every dollar earned by men worldwide, as pointed out by the United Nations Secretary-General António Guterres in a speech in 2020, and the latest research by the World Economic Forum says it will take 257 years to close this gap. This, however, doesn’t justify existing unequal practices. Companies are suggested to make additional efforts to reward the workforce fairly.

Paying female employees equally is not just a legal requirement under the Law of the People’s Republic of China on the Protection of Rights and Interests of Women, but also contributes to commercial success.

Paying your female employees at par with the position standards will send a clear and positive message about your business and corporate brand. This practice will also increase productivity by attracting the best employees and reducing turnover. Moreover, it can boost company reputation, prevent damaged employee relations, and avoid low staff morale.

Gender equality on performance review and promotion

Article 25 of the Women’s Protection Law stipulates that women and men should be treated equitably in such aspects as promotion, evaluation, and determination of professional and technological titles, and discrimination against women shall not be allowed.

In practice, however, companies may take more steps to ensure the principle of equality in hiring than in the performance review process, as the former has comparatively more concrete standards to evaluate and follow.

Given this, we suggest companies provide corresponding training to their senior management to level the playground for men and women in the workplace, which will both reduce talent turnover and increase efficiency as well as improve the public image of the business.

Special protection to female employees

Gender equality does not mean that males and females must always be identical and require the same treatment. Given the existence of biological sex differences, it is reasonable for males and females to have different legal rights in some instances and for female employees to get special protections, especially in the biologically vulnerable periods, including menstrual period, pregnancy, and breast-feeding period (one year counted from the date of childbirth).

Under Chinese law, female employees are granted special protections in the below three aspects：

Work arrangement

The Special Provisions on Labor Protection for Female Employees set out detailed rules on work arrangements for female employees.

First of all, female employees cannot be arranged to take positions that fall under the scope of incompatible labor work for female employees, as shown in the below table.

Scope of Incompatible Labor Work for Female Employees
The scope of incompatible labor work for female employees:

(1) Underground mining operations;

(2) Grade 4 physical labor-intensive work stipulated in the Physical Labor Intensive Work Grading Standards; and

(3) Work involving carrying weights that exceed 20 kg six times or more per hour, or intermittently carrying weights that exceed 25 kg.
The scope of incompatible labor work for female employees during the menstruation period:

(1) Working under Grade 2, Grade 3, and Grade 4 cold water stipulated in the Cold Water Grading Standards;

(2) Working under Grade 2, Grade 3, and Grade 4 low temperature stipulated in the Low-Temperature Grading Standards;

(3) Grade 3 and Grade 4 physical labor-intensive work stipulated in the Physical Labor Intensive Work Grading Standards; and

(4) Working at Grade 3 and Grade 4 high altitude stipulated in the High Altitude Work Grading Standards.
The scope of incompatible labor work for female employees during pregnancy:

(1) Working at premises where the density of toxic substances such as lead and lead compounds, mercury and mercury compounds, benzene, cadmium, beryllium, arsenic, cyanide, nitrogen oxides, carbon monoxide, carbon disulfide, chlorine, caprolactam, chloroprene, vinyl chloride, ethylene oxide, aniline and formaldehyde in the air at the work premises exceeds the occupational health standards of the State;

(2) Working in manufacturing of the anticancer drug, diethylstilbestrol, work which has exposure to anesthetic gases, etc.;

(3) Operation of unsealed sources of radioactive material, dealing with emergencies of nuclear accidents and radiation accidents;

(4) High altitude work stipulated in High Altitude Work Grading Standards;

(5) Working under cold water stipulated in the Cold Water Grading Standards;

(6) Working under low temperature stipulated in the Low-Temperature Grading Standards;

(7) Working under Grade 3 and Grade 4 high temperature stipulated in the High-Temperature Grading Standards;

(8) Working with Grade 3 and Grade 4 noise levels stipulated in the Noise Level Grading Standards;

(9) Grade 3 and Grade 4 physical labor-intensive work stipulated in the Physical Labor Intensive Work Grading Standards; and

(10) Working in a confined space, high-pressure chamber, or diving operation, working with strong vibrations or work which requires frequent stooping, climbing, and squatting.
The scope of incompatible labor work for female employees during the breast-feeding period:

(1) Item (1), item (3) or item (9) in the scope of incompatible labor work for female employees during pregnancy;

(2) The density of toxic substances such as manganese, fluorine, bromine, methanol, organic phosphorus compounds, and organochloride compounds in the air at the work premises exceeds the occupational health standards of the State.

Besides, where a female employee is unable to perform her original job duties during pregnancy, the employer shall reduce her workload or arrange other suitable job duties based on the certification of the medical institution.

Moreover, for female employees who enter the seventh month of pregnancy and who are in the breast-feeding period, the employer shall not extend her working hours or assign night shift duties. For the former, employers should also allocate fixed resting time during her working hours.

Leaves

Female employees in China are granted extra leaves related to pregnancy and childcaring, including prenatal check-up leave, maternity leave, breast-feeding leave, and childcare leave.

Prenatal check-up: Starting from the 12th week of pregnancy, a pregnant employee will need to go for an increasing number of prenatal check-ups, for which she is entitled to paid leave. These check-ups will be logged in the ‘pregnancy handbook’ provided by the local Community Health Service Center. Generally, there will be around 10 times prenatal check-up during the whole pregnancy period. And the number of check-ups will be far beyond that whenever an abnormal situation is spotted. It’s not proper for the employer to limit the prenatal check-up times by any means.

Maternity leave: Maternity leave in China includes two parts—the basic maternity leave granted by the State Council and the extra maternity leave granted by local governments (vary from province to province). Generally, the basic maternity leave is 98 days for normal childbirth, which can be extended by 15 days under special circumstances, such as dystocia and multiple births. Employees can choose to start the leave 15 days prior to the expected date of childbirth. In case of miscarriage or abortion, the female employee can be granted 15-days maternity leave for pregnancy shorter than four months, and 42-days maternity leave for pregnancy reaching four months.

Breast-feeding leave: When a female employee comes back to work after maternity leave, she will still be granted at least one hour of paid leave per day during work hours for breast-feeding. By law, the breast-feeding period lasts one year counted from the date of childbirth. In practice, companies tend to ask employees to work a full eight-hour day and allow them to accumulate the extra hour toward vacation time.

Childcare leave: Childcare leave is very new in China and has only been formally introduced since 2021 as part of an effort to address the growing demographic imbalance and boost childbirth. It is granted to employees who have children under a certain age. In most provinces, childcare leave is 10 days per year until their children reach three years old, but there are provinces that grant longer or shorter childcare leave, as stipulated by the local family planning regulations.

Termination

In China, it is illegal to terminate a pregnant employee during her pregnancy, maternity leave, or breastfeeding period unless the termination is requested by the female employee, mutually agreed, or due to the inappropriate behaviors specified in the Labor Contract Law that constitute lawful grounds for immediate termination.

Further, if an employee gets pregnant during the term of her fixed-term contract, and the contract ends during the pregnancy, the contract shall be automatically extended (through a renewed end date or a second contract) until the end of the breast-feeding period.

Prevent sexual harassment

In 2021, a high-profile sexual harassment scandal at a famous technology company placed the issue of “sexual harassment” front and center again.

Chinese law explicitly prohibits sexual harassment in the workplace, with Article 1010 of the Civil Code stipulating that the victim has the right to request the perpetrators to bear civil liability for acts of sexual harassment in the forms of verbal remarks, written language, images, physical behaviors or otherwise against the will of another person, and requires employers must take reasonable measures to prevent sexual harassment and provide proper channels of complaint.

However, it’s widely believed that the legislation and regulation pertaining to sexual harassment tend to be broad-based, preventive, and provide little detail on ‘what’ amounts to sexual harassment.

Considering the potentially tremendous and negative impact of sexual harassment cases on businesses, employers are suggested to clearly define what types of behaviors are inappropriate and establish a strict anti-harassment code and culture for their businesses, in the absence of a clear and uniform legal protocol for handling sexual harassment cases.

Specifically, employers could take the below anti-harassment measures:

  • Define what types of behaviors are inappropriate, write them into the company’s employee handbook, and stipulate such behaviors will result in investigations and special punishments.
  • Provide effective complaint channels for victims to report an instance of sexual harassment and develop protocols to ensure such complaints will be managed properly.
  • Offer workplace education and training to prevent sexual harassment.
  • Clearly communicate the anti-harassment code of the company to all employees.

Among others, regarding the complaint channels and complaint management, the below protocols can help employers minimize risks and losses should sexual harassment take place in their organizations:

  • Victims should be given multiple options for reporting so that they can choose the option that they feel most comfortable with.
  • Depending on the size and structure of the business, the sexual harassment case can be reported to human resources (HR), the relevant manager or supervisor, an owner or executive, or a dedicated sexual harassment complaint system. For foreign companies or small branch offices, employees should be given the option to report directly to headquarters.
  • Where the sexual harassment is reported in a real-name manner or of other serious circumstances, the reporting should be regarded as a case of high severity and be reported to company headquarters, group chief compliance officer, chief human resources officer, or CEO immediately.
  • An independent investigation team should be set up to independently investigate the complaint and the investigator or the company’s compliance officer shall timely reply to the victim about the progress.
  • During the investigation, according to the nature of the case, the perpetrator can be temporarily suspended from work.
  • Meanwhile, if loopholes or defects are found in the existing system and the process of the company in case of an investigation, the process should be updated, amended, and improved.

By timely responding to the whistleblower and conducting independent compliance investigation, letting the whistleblower know that the company has taken their reports seriously and the disciplinary violations of the reported personnel will be seriously dealt with according to the investigation results and company policies, the situation can be prevented from getting worse. Better, it sets clear precedents that contributes to a safer, transparent, and healthier work environment, which will attract employees used to or appreciative of such standards. Companies should aim to be industry leaders in this regard.

Summary

Laws set the minimum standard for ethical behavior. A strong and well-developed company framework to address gender discrimination and sexual harassment in the workplace contributes towards boosting office morale, increasing work efficiency, and, most importantly, the healthy development of the business in the long term. It’s for the benefit of both employers and employees to make the workplace more inclusive.

About Us

China Briefing is written and produced by Dezan Shira & Associates. The practice assists foreign investors into China and has done so since 1992 through offices in Beijing, Tianjin, Dalian, Qingdao, Shanghai, Hangzhou, Ningbo, Suzhou, Guangzhou, Dongguan, Zhongshan, Shenzhen, and Hong Kong. Please contact the firm for assistance in China at china@dezshira.com.

Dezan Shira & Associates has offices in Vietnam, Indonesia, Singapore, United States, Germany, Italy, India, and Russia, in addition to our trade research facilities along the Belt & Road Initiative. We also have partner firms assisting foreign investors in The Philippines, Malaysia, Thailand, Bangladesh.