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Chinese Government Forbids Employers From Asking About Childbearing or Marital Status

On January 15, 2019, we posted an article about the effect of the #MeToo era on China’s efforts to draft its first Civil Code enshrining the country’s civil laws. While China is not expected to adopt the Code until at least 2020, the Chinese government is beginning to take steps now to address gender discrimination in the workplace.

On Thursday, February 21, the Chinese government posted a notice on the website of the Ministry of Human Resources and Social Security of the People’s Republic of China, outlining plans to enforce current laws against gender discrimination in the workplace.

The notice comes in response to a declining birth-rate driven by the “one-child” policy which has been in place since 1979, concerns over sluggish economic growth, and decreased female participation in the workforce. The notice’s main focus is to better define what constitutes “gender discrimination” in employment practices, a practice that is technically enshrined in the Chinese constitution, but in reality vaguely defined and poorly enforced.

China has a widespread issue with of sexual harassment and gender discrimination in the workplace. Recruiters and employers are known to ask female candidates about marital status or childbearing plans. Job postings may specify that the position is only open to men or highlight the “beautiful girls” working in the office. It was not until 2013 that a woman successfully brought a case claiming gender discrimination in an employment context. Indeed, 73 percent of women participated in the workforce in 1990, but that number has declined to 60 percent in 2018.

In an effort to address these concerns, the notice specifically forbids employers and recruiters from:

  • Asking about a woman’s marital or childbearing status;

  • Restricting births as a condition of employment; or

  • Asking a woman to take a pregnancy test as a condition of hiring.

Additionally, the Chinese government intends to reinforce a victim’s ability to bring claims in court, increase child and infant care services in the workplace, and provide more support for women trying to reenter the workplace after giving birth. Employers or recruiters who discriminate based on gender may face up to $7,400 in fines, and more serious or repeat violations could result in stiffer penalties.

While there are still questions around the actual implementation and enforcement of these new policy goals, the notice signifies a shift toward greater protections for women in the workforce.

© 2019 Proskauer Rose LLP.

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About this Author

Erika C Collins, Labor, Employment, Attorney, Proskauer Rose, LAw Firm
Partner

Erika Collins is a Partner in the Labor & Employment Law Department and co-head of the International Labor & Employment Law Group, resident in the New York office. Erika advises and counsels multinational public and private companies on a wide range of cross-border employment and human resources matters throughout the Americas, Europe, Africa and Asia.

212-969-3555
Daniel Ornstein, Litigation Attorney, Proskauer Law FIrm
Partner

Dan Ornstein leads our London labor and employment team and is a co-head of our International Labor & Employment Group. He has over 15 years of experience dealing with a broad range of UK and international employment issues. Dan is a go-to advisor for clients who rely on his sophisticated advice both on day-to-day matters and high-stakes situations. Dan is ranked in Chambers UK, which describes him as "incredibly analytical", "incredibly intelligent and an excellent sounding board” and someone who “displays both empathy and an assured knowledge of the best way to treat cases." He is also recognized in Legal 500 UK and International Who's Who of Management Labour & Employment Lawyers.

20-7539-0601
Law Clerk

Jacob Tucker is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration and Employment Counseling & Training Groups.

212.969.3857