The rules on anti-discrimination in China can be found on several various laws and regulations, such as the Labor Law of the People’s Republic of China and the Law of the People’s Republic of China on Promotion of Employment. However, these 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, as well as what liability should be imposed.
According to the Law of the People’s Republic of China on Promotion of Employment and the Regulations on Employment Service and Employment Management amended by the MOHRSS, when recruiting new employees, employers should not discriminate against female employees, ethnic minority workers, disabled people, and rural workers. Employers should 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 regulations restricting female employees’ right to marry and reproduce. If a female employee believes her right to marry or give birth has been violated, the employee might bring a case before the court and even seek compensation.
Harassment in China is mainly addressed as sexual harassment in its legislation. The 2005 Law of the People’s Republic of China on the Protection of Women’s Rights and Interests explicitly states that “sexual harassment against women is banned. The female victims shall have the right to file complaints with the units where they work and the departments concerned.” The Special Rules on the Labor Protection of Female Employees issued by the State Council in 2012 provides that “Employers shall prevent and prohibit the sexual harassment of female employees in their workplaces.” However, neither of the two laws includes a clear definition of “sexual harassment” nor contains specific employer duties to prevent and prohibit sexual harassment.
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Under the Law of the People’s Republic of China on the Protection of Disabled People, employers should provide disabled employees with appropriate working conditions and labour protection, and make appropriate modifications to the working place, equipment and living facilities.
Employers who violate laws regulating sexual harassment might only be punished under tort law or criminal law. 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, in which the defendant received criminal sanctions. Compared to many other countries, the harassment legislation in China is relatively new. Apart from tort liabilities and criminal penalties, PRC law does not impose other duties on employers or employees.
In addition, employment discrimination could be litigated according to PRC Labor Law, PRC Employment Promotion Law and PRC Tort Liability Law. In 2017, in one discrimination case, 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 finally ruled by the court to allow the employee to resume work at the original position. However, 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 as required by the local government, such employer shall be obligated to contribute to the Disabled Person Employment Security Fund on an annual basis.
The annual contribution amount for the Fund = (the number of total employees in last year × the proportion of disabled employees required by local government – the number of disabled employees retained in last year) × the employee average annual wage in the last year. The Fund is established and committed to improve employment opportunities for disabled individuals and protect their legitimate interests in dealings with different employers. In practice, from an economic perspective, big companies usually choose to retain a satisfactory percentage of disabled employees so that the companies will be exempt from contributing to the Fund. In addition, pursuant to the PRC Regional Autonomy Law, employers in national autonomous regions are expected to give priority to candidates with minority ethnicity when conducting recruitment.
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