Currently, the rules on anti-discrimination are scattered throughout various laws and regulations, such as the PRC Employment Law, the PRC Employment Promotion Law, the PRC Protection of Women’s Rights and Interests Law, and the PRC Protection of Disabled People Law. However, these anti-discrimination rules are very general and impractical and do not specify what discrimination is, how to determine its existence, how to allocate the burden of proof in establishing it and what liability should be imposed.
Extent of Protection
According to the PRC Labour Law, employees shall not be discriminated against due to their ethnicity, race, gender or religious belief. The Regulation on Employment Service and Employment Management formulated by the Ministry of Human Resource and Social Security further expands the scope of protection, and specifies that employees shall also not be discriminated against due to disability or for migrating from rural areas. Also, employers shall not refuse to employ a job candidate on the basis that he or she is a carrier of any infectious pathogen unless otherwise provided by laws and regulations. Particularly, an employer is forbidden to include provisions in its labour contracts or internal policies restricting the rights of its female employees to marry and reproduce. If a female employee believes her right to marry or give birth has been violated, she may bring a case before the court and even seek compensation.
Protections Against Harassment
Harassment in China is mainly addressed as sexual harassment in legislation. The 2005 PRC Protection of Women’s Rights and Interests Law explicitly states that sexual harassment against women is banned and victims are entitled to complain to the employer or the relevant authorities.
The Special Rules on the Labour Protection of Female Employees issued by the State Council in 2012, further provide that employers shall prevent and prohibit the sexual harassment of female employees in their workplaces. However, neither of these two laws includes a clear definition of “sexual harassment” nor do they contain any specific obligations for employers to prevent and prohibit sexual harassment.
The PRC Civil Code, effective from the beginning of 2021, prescribes that both men and women are under the protection against sexual harassment and employers are obligated to take reasonable precautions, handle complaints, investigate and discipline, and prevent sexual harassment, conducted by exploiting authority or subordinate relationships or by other means. The victims of sexual harassment may file a claim against the offender demanding an apology, moral damages, or other civil remedies. In the latest development on anti-sexual-harassment rules, the PRC Civil Code also describes sexual harassment as actions that are against the will of another (or others) and can be conveyed via language, words, photos, physical movement or by other means.
In 2008, a human resource manager in Chengdu was sentenced to five months’ criminal detention for harassment of a female employee. This was the first sexual harassment case where the offender received criminal sanctions. Compared with many other countries, the anti-harassment legislation in China is rather nominal and in practice, it is believed that very few remedies are ultimately awarded to most harassment victims. In view of this, the legal practitioners in China have long urged for the establishment of legal system with a more comprehensive anti-sexual-harassment protection.
Employer’s Obligation to Provide Reasonable Accommodations
Under the PRC Protection of Disabled People Law, employers shall provide disabled employees with appropriate working conditions and labour protection, and make appropriate modifications to the working place, equipment and living facilities.
Currently in China, employment discrimination could be litigated according to PRC Labour Law, Employment Promotion Law and Tort Liability Law. One discrimination case in 2017, the company put an employee on paid leave due to the fact that the employee was diagnosed as infected by HIV and the company was ordered by the court to allow the employee to resume working in his original position. Still, employment discrimination cases are rare in China because, under current legislation, it is difficult to adduce evidence and there are no comprehensive remedies for employment discrimination violations.
The PRC laws and regulations on employment discrimination do not specifically prescribe any detailed restriction in respects of quotas, diversity or affirmative action. But employers in China are in fact encouraged to employ a certain proportion of disabled employees and provide them with appropriate types of work and positions. Where the employer fails to employ enough disabled employees at a certain proportion of the whole staff (e.g. 1.5% in Shanghai) as required by the local government, such employer shall be obligated to contribute to the Disabled Person Employment Security Fund (the “Fund”) on an annual basis. The Fund is established and committed to improving employment opportunities for disabled individuals and protect their legitimate interests in dealings with different employers. In practice, from an economic perspective, large companies usually choose to retain a satisfactory percentage of disabled employees, so that the company will be exempt from contributions to the Fund.
In December 2019, the National Development and Reform Commission, together with five other central governmental departments, released the Overall Plan for Refining the Disabled Person Employment Security Fund and Facilitating the Employment of the Disabled (the “Plan”). The Plan expressly stipulates that, as from 1 January 2020, employers with no more than 30 employees are exempt from contributions to the Fund. Following the Plan, various provincial and municipal governments updated the calculation formula relating to an employer’s contribution to the Fund. Take Shanghai as an example, two different calculation formulas have been released and will be applied based on the proportion of disabled employees:
- Employers whose disabled employees account for 1% or more of the total staff –
The annual contribution amount for the Fund = (1.5% – Ratio of disabled employees) × the sum of the employer’s social insurance contribution base of last year × 50%;
- Employers whose disabled employees account for less than 1% of the total staff –
The annual contribution amount for the Fund = (1.5% – Ratio of disabled employees) × the sum of the employer’s social insurance contribution base of last year × 90%.
In addition, pursuant to the PRC Regional Autonomy Law, employers in national autonomous regions are expected to give priority to recruiting candidates with minority ethnicity.