In celebration of International Women's Day, classic cases and judicial reports have been released at both the national and local court levels to safeguard women's employment rights and clarify employers' obligations. In this update, we summarise the cases and reports.
National classic case
As highlighted in our previous update, the Law on the Protection of Women's Rights and Interests (“Women's Protection Law“) establishes a remedy approach of public interest litigation for female employees whose rights have been violated. Recently, the Supreme People's Procuratorate (who acts as a public prosecutor) released a classic case involving a public interest litigation over the rights of pregnant employees. This case also illustrates the procedural framework of such litigation.
In this case, the employer unilaterally demoted employee H, who was three months pregnant, from a department management position to a physically demanding role without any consultation on an equal basis. After H refused the position adjustment, the employer removed her from the work group, deleted her attendance records, and restricted her access to work laptop. As a result, H lodged a complaint with the local Women's Federation.1
The case was then brought to the local district procuratorate, where, upon investigation, the public prosecutor found that the employer's decision to adjust H's position had violated the Employment Contract Law and the Women's Protection Law. The public prosecutor thus coordinated with the judicial bureau to provide legal aid to H, assisting her in initiating a labour arbitration. In the end, H reached a settlement with the employer and received compensation.
The public prosecutor also found that the employer, despite having nearly 200 female employees, failed to incorporate special protection clauses for female employees into their employment contracts as mandated by law. The employer was also found to have unreasonably adjusted roles, created barriers for pregnancy-related medical leave, and neglected to arrange regular women's health check ups. These actions had infringed upon the employment rights of an unspecified number of female employees, which was later acknowledged by the hearing officer as well during the hearing procedure.
As a result, the public prosecutor issued a pre-litigation prosecutorial suggestion to the district Human Resources and Social Security Bureau (HRSSB) in accordance with the Women's Protection Law, ordering the employer to rectify its unlawful actions. The HRSSB subsequently investigated the employer, interviewed the management in charge, and urged the employer to establish internal policies as well as supplementing the employment contracts with clauses specially for the protection of female employees in the workplace.
This classic case serves as a valuable reminder for all employers that female employees not only have a right to lodge complaints with competent authorities such as the Women's Federation, but also that individual complaints can lead to a public interest litigation under the Women's Protection Law, which can potentially trigger an investigation into the employer's employment practices.
Local judicial reports and classic cases
A number of local courts also issued judicial reports, classic cases or legal guides concerning labour disputes involving female employees. Of particular note, the Suzhou Intermediate People's Court published a Work Report on the Trial of Labour Disputes Involving Female Employees from 2018 to 2023 (“the Report“) along with ten classic cases. The Report delves into trending judicial issues including “three-period” matters (i.e., pregnancy, maternity and nursing periods), gender discrimination, workplace sexual harassment and retirement. We summarise some of the key issues below.
- If an employee conceals her pregnancy status during recruitment, does it constitute fraud?
Generally no, but exceptions apply for certain roles.
The Employment Contract Law limits an employer's right to know to “basic situations directly related to the employment contract.” In addition, the Women's Protection Law generally prohibits employers from inquiring about a female candidate's marital and childbearing status during recruitment. Therefore, pregnancy usually falls outside the scope of an applicant's disclosure obligations, and non-disclosure does not constitute fraud.
However, for specific roles including those requiring intensive manual labour or high-altitude work, pregnancy-related physiological changes could inevitably impact the performance of the employment contract. In such cases, pregnancy becomes a “basic situation directly related to the employment contract,” and applicants are expected to disclose their pregnancy status. Failure to do so could be considered fraud.
- The national regulations mandate a retirement age of 55 for female employees in management or technical positions, and 50 for those in other positions. How is “management or technical position” defined?
If the term “management or technical position” is defined in the employment contract or company policies, that definition applies.
If there is no such definition in the employment contract or company policies, the employee's actual job responsibilities and the accepted societal norms should be considered. Typically, top and middle management roles are widely recognised as management positions. However, it is unclear whether roles involving managerial tasks without direct reports may be considered as management positions. In such cases, the court will decide on a case-by-case basis, considering factors such as the size of the company's operations and the nature of business.
- The Civil Code and the Women's Protection Law establish a legal obligation for employers to prevent and address harassment. However, to what extent should employers fulfil their duty to protect and care for the harassed? (For example, if the harassed employee resigns on the grounds that the employer has not fulfilled its duty to prevent sexual harassment and claims statutory severance, how will the court rule?)
Generally, an employer's legal duty to prevent and stop sexual harassment means that they have a duty to actively intervene when a complaint or report of sexual harassment is received. This intervention includes conducting investigations and taking follow-up actions. If the employer can prove that they have conducted the investigation and taken reasonable and appropriate actions, they will be deemed to have fulfilled the duty to prevent and address sexual harassment, and the request for statutory severance by the harassed employee would not be supported.
In determining whether an action is “reasonable and appropriate”, factors to consider may include whether the employer has imposed disciplinary action that correspond to the severity of the harasser's conduct in accordance with internal policies, and whether disciplinary action can effectively prevent the recurrence of such harassment.
Key takeaways
The judicial trends highlight an enhanced focus on protecting female employees, with a variety of potential remedies for women to assert their rights, including reporting to competent authorities, public interest litigation or labour dispute. Employers' obligation has been further clarified, emphasising the need for proactive intervention in response to sexual harassment complaints. Given this, employers should ensure that employment contracts, company policies and practices are compliant with legal obligations which pertain to women's employment rights, and that they establish clear procedures for investigating and addressing sexual harassment complaints.
Footnote
1. The official, state-sponsored organization to represent and safeguard the rights and interests of women and promote gender equality, also one of the competent authorities under the Women's Protection Law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
