China Bans Questions on Marital, Childbearing Status during Hiring
China has passed a new rule that bans employers from asking female candidates about their marital, childbearing status. China Briefing examines the implications of the policy, which targets employers who are reluctant to hire or promote women to higher positions.
In February this year, China announced new measures prohibiting gender-based discriminatory practices when hiring female candidates. Employers in China are now banned from asking women about their marital and childbearing status.
Gender discrimination in the workplace continues to be a pervasive problem in China. The issue is as much about the entrenched stereotypes regarding gender roles as it is about the perceived additional costs and burdens associated with hiring women – paid maternity leave, post-maternity leave, allowance, and termination restrictions.
On paper, gender equality has fundamental acceptance in China, and is even enshrined in its Constitution. In reality, however, government policies suffer from vague wording, resulting in the weak enforcement of gender positive hiring practices and workplace norms.
While many observers welcome the new rule, doubts about how compliance will be monitored and implemented remain. Critics of the policy are all too familiar with China’s gender laws being more symbolic than substantive.
Gender equality in China is basic national policy
In February 2019, the Ministry of Human Resources and Social Security, the Ministry of Justice, and the Supreme People’s Court along with eight other departments issued the Circular about Further Regulating Recruitment and Promoting Women’s Employment (‘the Notice’).
Hailing gender equality as the ‘basic national policy of our country’, the notice aims to ‘encourage wider and deeper participation of women in social and economic activities’ by ‘standardizing recruitment practices and promoting equal employment for women.’
The Notice stipulates that women seeking employment may not be subject to questions about marriage and childbirth, nor may they be asked to take a pregnancy test as part of their medical examination. Additionally, the Notice prohibits employers from restricting births as a condition of employment.
Recommendations to build a more positive environment for women in the workplace include: promoting career guidance for young women, strengthening judicial mechanisms for plaintiffs, developing infant and childcare services, and increasing the return-to work support for women who go back to work after giving birth.
Under the new law, employers or human resource agencies could face a maximum fine of RMB 50,000 (US$7,451.3) if their job advertisements are found to contain gender-discriminatory content.
Why gender-biased recruitment is so widely prevalent in China
A Human Rights Watch report published last year exposed that gender-biased recruitment was rife among Chinese employers – in 2018, nearly one in five national civil service jobs were advertised as being for “men only” or “men preferred” positions.
This recruitment bias is rooted in, both, gender stereotypes as well as the perceived costs of meeting the legal entitlements available to women. Supporting this reasoning is an abundance of anecdotal and documented evidence. In fact, an investigation by China’s Renmin University in March 2018 showed that employers are more reluctant to offer key positions to women who have a second child.
Currently, women all across China are entitled to a minimum of 98-days paid maternity leave. However, many regional governments have extended the legislation to provide an additional period of paid leave. For example, in Shanghai, female employees are entitled to 128 days of paid leave, whereas in Guangdong, female employees are eligible to a minimum of 178 days of paid maternal leave.
Unlike other countries, such as Norway and Australia, where the government shoulders the cost of the maternity leave – Chinese employers run the risk of being required to bear at least some of the cost of the maternity allowance – particularly where the province has provided extra maternity leave days or where the female employee’s salary is greater than three times the local average (which is not covered by the Social Security Bureau).
This is seen as a hefty burden that many employers choose to avoid from the outset – by predetermining the chances that a female employee may utilize this.
China reforms gender laws
In recent years, China has progressively strengthened its gender equality laws but there is still a long way to go. For genuine change to become possible, laws need to be more detailed and a transparent system of monitoring, regulation, and legal recourse must be laid out.
Nevertheless, there is cause for some optimism. The Notice demonstrates a level of depth that other related measures have lacked – such as a specified penalty for employers, a clause that strengthens the review of complaints, as well as judicial relief mechanisms.
It is uncertain whether prohibitions on the employer alone will have the desired effect of creating an equal playing field for men and women recruits.
However, it is hoped that through such affirmative measures, China will be able to improve the general working landscape for women and legitimize as well as normalize their claim to higher positions.
China Briefing is produced by Dezan Shira & Associates. The firm assists foreign investors throughout Asia from offices across the world, including in Dalian, Beijing, Shanghai, Guangzhou, Shenzhen, and Hong Kong. Readers may write email@example.com for more support on doing business in China.