A longstanding complaint among women in China has been sex discrimination, prompting the introduction of increasingly stringent laws to combat it. China’s laws against sex discrimination are spread out among numerous different regulations with decades of history, now centralized under the statutory authority of the Protecting Women’s Rights Act of 2022. This article explains China’s law on the prevention of sex discrimination through the most recent updates in the Act.

China’s regulatory regime mandates that certain protections for women be provided directly by employers, whereas other rights are protected by government bodies. The methods for protecting women include equal employment opportunity rules and very robust rights specific to women. The equal employment opportunity rules guarantee that women are not discriminated against on the basis of gender. Rights specific to women most prominently include maternity leave, which covers childbirth and subsequent nursing periods, helping to prevent sex discrimination by ensuring these needs do not become obstacles to employment.

Contents

Equal Employment Opportunity Rights

Rights Specific to Women

Effective Compliance Management

Equal employment opportunity rights

law because it ensures women can get their foot in the door. The essential principle is found in the PRC Constitution, which says that all people are entitled to equal employment opportunity rights, regardless of gender and ethnicity.

The constitutional value is implemented through numerous China Employment Act provisions, such as the “Equal Pay for Equal Work” requirement. It’s notable that contemporary Mandarin Chinese law uses several terms for “employee,” reflecting specific contexts like geographic location or work hours.

In today’s China, discrimination based on gender is the leading complaint and lawmakers have continued to pass new rules enhancing protections against this practice. Chinese labor law incorporates equal opportunity employment requirements at all stages of the employment lifecycle: 1. Recruitment 2. Working 3. Termination.

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Recruitment

The recruitment stage is where the majority of disputes occur. The 2022 Protecting Women’s Rights Act prohibits discriminatory practices during recruitment, including:

• Stating or acting on a preference for men;
• Asking about marital status or children;
• Requiring pregnancy tests during onboarding;
• Making marital or parental status a condition for employment;
• Any other practice that results in gender-based employment refusal or involves disparate treatment of women.

Regulations, however, create exceptions to the above rules. Specifically, the appendix to the Women Worker Employment Rights Protection Rules, and the Employment Prohibited for Women Workers. These regulations list certain roles, such as moving heavy objects or working in mines, as exceptions. Beyond these positions, women in China are entitled to equal employment opportunity rights.

Working

Once employed and working, women are entitled to equal pay and benefits for equal work, in addition to equality in job promotion, performance evaluations, and job titles. The Protecting Women’s Rights Act also prohibits any disparate treatment based on a worker’s marital or parental status.

Termination

When it comes to terminating employment, the Act prohibits dismissing women employees because of marital status, pregnancy, lack of children, or number of children. Discrimination against retirement-age women is also prohibited, as is firing a worker due to her pregnancy, childbirth, or nursing period.

Expanded Government Assistance, Enforcement, and Penalties

More recent amendments to the Protecting Women’s Rights Act expand government assistance programs to address gaps in enforcement. Notably, employment assistance is provided directly to women for not only job placement but also entrepreneurship and other personal assistance, including childcare. Additionally, government agencies now have jurisdiction to conduct inspections and take action against violations throughout the employment timeline, from recruitment to termination.

In other countries, government agencies such as the Equal Employment Opportunity Commission (EEOC) have been indispensable in enforcing women’s rights to equal employment. Before the 2022 amendments in China, women had to pursue sex discrimination claims in the court system at their own expense, which is prohibitive compared to the cost of filing a complaint with the Ministry of Human Resources & Social Security. Fines for employers found to have discriminated on the basis of gender can now reach up to ¥50,000 (about $7,000) per instance, with higher penalties imposed for more severe violations, such as violations of cease-and-desist orders.

Rights Specific to Women

Chinese law provides an array of highly detailed rights specific to women, particularly during pregnancy and parenthood, encompassing about 22 months from early pregnancy through the first year of the child’s life. The 22-month period includes a range of special protections, including maternity leave, prenatal checkups, pregnancy leave, and nursing periods, which the legislative history indicates is intended to be highly comprehensive. Provinces and cities may also have their own local laws governing this 22-month period, which can change what it covers in practice.

National law establishes a very clear minimum definition that includes 98 total days of maternity-related leave, including 15 days prior to giving birth. This period can be extended for medical complications or multiple births. Moreover, local governments across China have passed local laws to encourage families to have more children and have increased maternity leave beyond the national standard; typically offering an additional 60 days, but some provinces now require an additional 92 days.

Miscarriages are covered by specific local laws, which provide for a miscarriage leave policy that also requires ordinary wage payment, though with fewer total days off. It’s worth noting that only maternity leave is actually defined as a “leave” under national law and other day off allowances, such as for doctor visits or breastfeeding, are not characterized as “leave.” The timing of maternity leave can be pushed forward or backward. Other types of “leave” are not complicated, and specific allowances are described below.

Maternity Leave & Doctor Visits: Under Chinese law, time off for prenatal doctor visits is not granted as a specific number of days off available to employees. Instead, the law provides that such visits are counted as time worked. In practice, the employee will provide a doctor’s note confirming that they visited the doctor, and they are considered to have attended work during that time.

Pre-birth Leave & Work Breaks: National law provides that those in or beyond their seventh month of pregnancy are entitled to extra breaks, with specific durations defined by local law. While they may vary, these breaks must last at least one hour.

Breastfeeding: Women are entitled to one hour per day to meet breastfeeding needs, which must also be recorded as time worked.

Local laws throughout China also provide for additional leave policies, a leading jurisdiction being Shanghai. In Shanghai, women are offered up to two and a half months of leave for women experiencing complications during birth, and up to six and a half months of leave with breastfeeding-related conditions.

Salary and benefits cannot be reduced due to marriage or the start of the 22-month leave period, and maternity leave allowances are also specifically covered by social security. Pregnant and breastfeeding women must also be provided with good working conditions, meaning that they cannot be made to work overtime or do night shifts.

Two different rules protect pregnant and breastfeeding women from employment termination: they may not be discharged by the employer during employment, and the employment relationship cannot be terminated at the expiration of the contract.

Protection against discharge is limited to Employment Contract Act §§40-41, requiring employers to wait until the end of the 22-month period before these options become available. Out of the numerous lawful grounds for discharge, §§40-41 only cover excessive medical leave, poor performance, material change in conditions, and layoffs.

In practice, this means that you can terminate the employment contract by agreement with the employee, but there are limited grounds for terminating them. Employment Contract Act §39 also has several other grounds for discharge that can be used during the 22-month period, specifically: failing to meet job requirements during the probationary period, serious disciplinary violations, and major negligence.

The Protecting Women’s Rights Act also limits an employer’s ability to decline to renew the employment contract at its expiration and mandates that contracts be extended to cover the entire 22-month period. For a healthy birth, an employment contract will automatically extend through the first full year of the child’s life. For an example of how long this can be, suppose an employee discovers she is pregnant on December 31, 2025, with a due date of August 1, 2026, her employment contract would automatically extend through August 1, 2027.

There is some debate among practitioners about whether maternity leave extensions cover the nursing period as the Act does not explicitly mention it. Some labor lawyers suggest that the employment contract need only be extended through the end of the maternity leave period.

The majority view in China, however, seems to be that the Employment Contract is automatically extended through the nursing period because the Employment Contract Act does provide that employment contracts are extended for the nursing period, and the Protecting Women’s Rights Act makes no mention of superseding the earlier rule.

In the courts, remedies are primarily offered to litigants through claims of unlawful discharge or termination. For example, while Shanghai courts rarely reinstate employment contracts as a remedy for typical employment disputes, a long line of precedents interpreting the China Employment Contract Act have reinstated contracts as a remedy when an employee was discharged or terminated during the 22-month period.

This result was reached in cases such as Shanghai Appeal 01-cv-13384 (2017) and Shanghai Appeal 01-cv-12584 (2018), both of which reinstated employment contracts for employees terminated during the 22-month period. These cases also affirmed that the practice of offering double severance pay as compensation for terminating an employee during the 22-month period is unlawful.

In the 2017 case, the employer objected that the employee’s position had already been filled. However, the Shanghai court held that women’s rights during the 22-month period implicate numerous benefits, including rights to social security coverage, and therefore chose to reinstate the employment relationship.

While the above rules are detailed and complex, there is a simple overarching principle you can use to remember how it all works. You generally can’t discharge an employee during her 22-month pregnancy and nursing period without good cause, nor can you terminate the employment relationship during that time, even if the employment contract would otherwise expire.

Effective compliance management for equal opportunity employment policies in China

The increasingly stringent statutory requirements and regulatory enforcement against sex discrimination in China mean that companies need policies in place to ensure compliance. To start with, the Protecting Women’s Rights Act requires employers to take seven specific types of action to prevent sex discrimination. The most significant three are:

• Policy Requirements: Establish a company policy that describes the process and personnel responsible for implementing sexual harassment compliance.
• Reporting Channels: Set up and designate points of contact for reporting instances of sexual harassment.
• Internal Investigations: Use an effective system for conducting internal investigations to resolve disputes, ensuring that individuals’ privacy and data are protected.

The other four include adopting safety policies, training staff to improve compliance awareness, assisting women with making claims, and providing necessary counseling services.

The law is currently phrased to say that employers “shall” take these actions, which is a language of obligation. However, the enforcement provision in §80 only includes an order to correct non-compliance. Local governments are expected to issue additional rules to supplement this part of the statute.

Among the above statutory mandates, businesses in China need to implement company policies, reporting channels, and internal investigation procedures to avoid possible accusations of ignoring or tolerating sexual harassment. Experts in Chinese corporate culture also note that policies to prevent discrimination and harassment improve the working environment and make employees feel like the business cares about them.

• 31 of the Protecting Women’s Rights Act provides that employers must make allowance for gynecological and breast health checkups for women employees. Employers in China will typically already have annual health checkup benefits for their employees, but these policies should be reviewed to see if they specifically cover gynecological and breast health.

While the general language of the statute requires special provisions in employment contracts for women workers, China’s human resources ministry has not released any regulatory guidance explaining what these provisions should include.

The overall legal system and approach for preventing sex discrimination in China is a national law matter. For all the issues covered in this article, the central government delegates substantial lawmaking responsibility to adapt the rules to the needs of each province, thus there will be some variation from place to place. These variations will typically include details such as the number of days allowed for maternity leave or what kind of allowance should be provided for menstruation periods.