Legislative overview of China’s protection for equal employment of special groups

Carol Zhu
Zhong Lun Law Firm, Shanghai
carolzhu@zhonglun.com

Lion Li
Zhong Lun Law Firm, Shanghai

During recruitment and employment, employers may differentiate against job seekers based on factors such as gender, age or health status, potentially constituting employment discrimination.

The Constitution of the People’s Republic of China (PRC) stipulates that all citizens are equal before the law. Laws such as the PRC Employment Promotion Law and the PRC Labor Law explicitly state that equal employment and voluntary career choices are rights entitled to every worker, and employment shall not be discriminated against based on ethnicity, race, gender, religion etc.

To protect equal employment and participation in corporate democratic management of relatively vulnerable groups, new regulations are continuously being issued to adapt to socio-economic development and changes.

Protecting women: gender equality

Article 48 of the PRC Constitution states:

‘Women enjoy equal rights with men in all aspects of political, economic, cultural, social, and family life. The state protects the rights and interests of women, implements equal pay for equal work, and trains and selects female cadres.’

Article 27 of the PRC Employment Promotion Law states:

‘The state guarantees women’s equal labor rights with men. Employers shall not refuse to hire women or raise recruitment standards for women based on gender, except for job types or positions deemed unsuitable for women by the state. Employment contracts shall not restrict female employees’ rights to marry or bear children.’

Additionally, Article 43 of the Law on the Protection of Women’s Rights and Interests and the Notice on Further Regulating Recruitment Practices to Promote Women’s Employment prohibit enterprises from:

• specifying ‘male only’ or ‘male preferred’;
• inquiring about women’s marital or childbearing status;
• including pregnancy tests in pre-employment physical exams; and
• setting marriage, childbirth or related conditions as employment criteria.

Beyond equal employment, women should be able to participate in corporate democratic management through various channels. The Trade Union Law and documents from the All-China Federation of Trade Unions provide safeguards for this.

Article 3 of the PRC Trade Union Law states that all workers – regardless of ethnicity, race, gender, occupation, religion or education level – have the right to join and organise trade unions. Article 11 further stipulates that enterprises with a significant number of female employees may establish women’s committees under trade unions, while those with fewer female employees may designate women’s representatives within trade union committees.

Local governments actively promote fair employment and entrepreneurial environments for women, prevent and rectify gender discrimination and ensure equal labour and social security rights. They enact local regulations and promptly address cases of employment discrimination.

In May 2022, a Shanghai property company specified gender requirements in job postings. The Songjiang District Procuratorate, upon investigation, confirmed the violation of disabled women’s equal employment rights and public interests. It issued pre-litigation procuratorial suggestions to the district’s Human Resources and Social Security Bureau, urging regulatory actions and collaboration with other departments to standardise recruitment practices. Notices were also sent to the State-owned Assets Supervision and Administration Commission and the Disabled Persons’ Employment Service Center to improve recruitment processes and safeguard disabled women’s rights.

Protecting persons with disabilities: corporate tax incentives

Article 45 of the PRC Constitution states:

‘The state and society assist in arranging the labor, livelihood, and education of citizens who are blind, deaf, mute, or have other disabilities.’

Article 29 of the PRC Employment Promotion Law states:

‘The state safeguards the labor rights of persons with disabilities. Governments at all levels shall plan holistically to create employment conditions for them, and employers shall not discriminate against persons with disabilities in recruitment.’

Article 38 of the Law on the PRC Protection of Persons with Disabilities prohibits discrimination in hiring, regularisation, promotions, title evaluations, remuneration, welfare, leave and social insurance.

To incentivise hiring persons with disabilities, the Ministry of Finance and State Taxation Administration offer corporate income tax and VAT benefits.

On 12 December 2018, the Supreme People’s Court expanded judicial remedies by adding ‘equal employment rights disputes’ under ‘general personality rights disputes’, effective from 1 January 2019, enabling courts to accept discrimination cases from job seekers without established labour contracts.

Prohibition of discrimination against persons with infectious diseases

Article 30 of the Employment Promotion Law prohibits rejecting applicants solely for being pathogen carriers, barring medically confirmed cases from high-risk roles until cured or cleared of transmission risks.

Protecting equal employment rights for special groups reflects social progress and sustains economic growth. While China’s legal framework and enforcement have improved workplace inclusivity, persistent discrimination necessitates broader anti-discrimination legislation to enhance diversity and equity.