PRC: Latest case updates and judicial reports on women's employment rights

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.

1. 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.

2. 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.

3. 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.

[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.

中国：女性就业权利最新案例与审判报告

为庆祝国际妇女节，国家和地方层面都发布典型案例和审判报告，以保障女性的就业权益并明确雇主的义务。在本次更新中，我们对这些案例和报告进行了总结。

国家层面的典型案例

我们此前的更新中提到，《妇女权益保障法》（“《妇保法》”）为权益受到侵害的女性员工设置了公益诉讼的救济途径。近期，最高人民检察院发布的一则涉及孕期女职工权益的公益诉讼典型案例。该典型案例还展示了公益诉讼的程序。

在这则案件中，雇主在未与员工H平等协商的情况下单方面将怀孕3个月的员工H从部门管理岗位降职调整至体力劳动岗位。员工H拒绝调整岗位后，雇主还将其移出工作群、删除其打卡出勤记录，并限制其使用工作电脑。员工因此向当地的妇女联合会提起投诉。

案件随后被移送至区检察院。检察院经调查了解，雇主调整员工H的工作岗位的行为违反了《劳动合同法》和《妇保法》的相关规定。检察院协调司法局为员工H提供了法律援助，支持员工H提起劳动仲裁。最终员工H与雇主达成了和解并获得了赔偿。

检察院还发现，雇主在有近200名女职工的情况下，未按照法律规定将女职工特殊保护条款写入劳动合同，且存在违法随意调岗、对产检请假设置障碍、未安排妇女特殊需要的定期体检等侵害不特定女职工劳动和社会保障权益情形。 在之后的听证会中，听证员也对此事实予以了认定。

检察院因此依照《妇保法》向区人力资源和社会保障局发出诉前检察建议，责令雇主对违法行为进行整改。人社局随后对雇主进行调查、约谈了雇主的单位负责人，并督促雇主制定了《工作场所女职工特殊劳动保护制度》等规章制度，在劳动合同中补充列明女职工特殊保护的条款。

这则典型案例对各雇主是一个很好的提醒。它不仅意味着女性员工可以通过向妇女联合会等有关部门投诉来维护自身权益，也揭示了个体投诉也有可能引发《妇保法》下的公益诉讼，

地方司法报告与地方典型案例

不少地方法院也发布了涉女职工劳动争议的报告、典型案例或法律指南。其中值得注意的是，苏州市中级人民法院发布了一份《2018-2023 年涉女职工劳动争议审判工作报告》（“《报告》”）及十大典型案例。该《报告》探讨了包括“三期”（孕期、产期和哺乳期）、性别歧视、职场性骚扰、退休等热点司法问题。我们在下文中总结了一些重要的问题。

1. 员工隐瞒怀孕事实入职是否构成欺诈？

不构成，但一些特殊岗位除外。根据《劳动合同法》，用人单位的知情权以“劳动者与劳动合同直接相关的基本情况”为边界。根据《妇保法》，用人单位在招聘过程中原则上无权询问女性求职者的婚育情况。因此，一般来说，怀孕情况不被包括在应聘者的告知义务范围内，员工未告知怀孕情况并不构成欺诈。

不过，对于一些特殊岗位，例如需要密集体力劳动、高空作业的岗位，怀孕导致的生理变化势必影响劳动合同的履行，怀孕情况应当视为“与劳动合同直接相关的基本情况”，求职者理应如实告知怀孕事实，否则可被认定为欺诈。

2. 国家规定管理或技术岗位的女职工退休年龄为55周岁，其他女职工退休年龄为50周岁。如何对“管理或技术岗位”进行界定？

如劳动合同或规章制度中对“管理或技术岗位”进行了界定，则依据劳动合同或规章制度确定。

如合同或制度中没有相关约定， 则结合员工工作内容、社会常识认知予以综合考量。现实中，最高管理层以及中层管理者根据社会常识认知被界定为管理岗争议较少。但某些不存在团队（或下属）却又从事管理工作内容的岗位是否属于管理岗位，还存在不确定性，需要法院结合企业的规模、类型等个性化因素进行判断。

3. 《民法典》、《妇保法》确立了雇主防治骚扰的法定义务。然而，雇主对被骚扰者的保护照顾义务应当具体细化到何种程度？（例如，如被骚扰者以用人单位未尽到性骚扰防治义务而提出离职，并主张经济补偿，法院将如何认定？）

一般来说，用人单位承担预防和制止性骚扰的法定义务，意味着用人单位在接到性骚扰投诉或举报后，有义务主动介入到性骚扰事件中，介入行为包括调查和处置。如用人单位举证证明其已经采取相应调查、处置措施且处置措施合理恰当的，应当认定用人单位已经尽到性骚扰防治义务，对被骚扰者要求经济补偿的请求不予支持。

其中，处置措施“合理恰当”宜考量：用人单位是否依据骚扰者的行为严重程度对应规章制度进行了相应的处罚，以及；用人单位通过对骚扰者的相应处罚能否避免骚扰行为再次发生等。

要点总结

近期的司法趋势体现了对女性员工权益保护的进一步加强，并为女性维护自身权益提供了多种类的救济途径，包括向主管部门举报、公益诉讼或劳动争议。雇主义务得到了进一步明确，尤其强调了对性骚扰投诉进行积极干预的必要性。鉴于此，各雇主应该确保其劳动合同、规章制度和劳动管理已遵循有关妇女权益保护的法律义务，并建立起调查和处置性骚扰投诉的清晰程序。