- 1. What are the main laws on discrimination in the workplace in your jurisdiction and what type of conduct does it cover?
- 2. Which characteristics are protected by these laws (is sexual orientation a protected characteristic?), and what type of employment relationships are covered – employee, worker, platform worker?
- 3. What remedies are available to an individual if they are subject to discrimination in the workplace, and what level of compensation might be awarded?
- 4. What steps such as policies, training etc (if any) are employers required to put in place to prevent discrimination in the workplace?
- 5. Is a D&I Policy a legal requirement or best practice?
- 6. Are there any risks in not having a local D&I policy? Any reputational risks and ESG consequences?
- 7. Are employers required to report on pay transparency or gender/ethnic/disability pay gaps?
- 8. Are there any data protection rules that affect the processing and retention of diversity data, and what do they say?
- 9. Are there any quotas at board level or below, and if so what do they relate to?
- 10. Are there any corporate governance rules that relate to D&I, and what do they say?
jurisdiction
1. What are the main laws on discrimination in the workplace in your jurisdiction and what type of conduct does it cover?
The PRC Labour Law, the PRC Employment Promotion Law, the Regulation on the Employment of the Disabled, the PRC Law on the Protection of the Rights and Interests of Women.
The provisions of laws and regulations on discrimination are general (i.e. direct and indirect discrimination are not identified). But some laws and regulations cover various types of conduct. For example, the employer shall not ask the female employee about her marital or fertility status nor shall an employer include a pregnancy test in the pre-employment physical examination.
2. Which characteristics are protected by these laws (is sexual orientation a protected characteristic?), and what type of employment relationships are covered – employee, worker, platform worker?
The PRC law lists characteristics, such as nationality, race, sex, religious belief, and disabilities. But according to the judicial interpretation of the PRC Supreme Peoples Court, all characteristics that are not directly related to requirements of work but lead to unreasonable discriminatory treatment towards employees shall be protected by law. Sexual orientation is not expressly listed by law as a protected characteristic. But legally speaking, it is one of the protected characteristics.
All kinds of employment relationships are covered, including dispatched employees and platform workers except if a worker's legal relationship with the platform is not verified as an employment relationship under the law.
3. What remedies are available to an individual if they are subject to discrimination in the workplace, and what level of compensation might be awarded?
In the circumstances where an employee suffers discrimination contrary to the PRC Labour Law or provisions in other laws, the employee can raise a civil claim at the People's Court. In practice, these kinds of lawsuits are rare in China. The level of compensation to be awarded is low.
4. What steps such as policies, training etc (if any) are employers required to put in place to prevent discrimination in the workplace?
There are no such mandatory requirements on employers.
5. Is a D&I Policy a legal requirement or best practice?
Best practice.
6. Are there any risks in not having a local D&I policy? Any reputational risks and ESG consequences?
Generally speaking, the legal risks are limited in China because discrimination is not taken seriously. But the reputation of employers may suffer if their employees have been the targets of discrimination.
7. Are employers required to report on pay transparency or gender/ethnic/disability pay gaps?
No.
8. Are there any data protection rules that affect the processing and retention of diversity data, and what do they say?
Under PRC law, diversity data may be considered sensitive information, for which specific processing and protection rules apply. According to the PRC Personal Information Protection Law, sensitive information can only be processed for a particular purpose, with sufficient necessity and under strict protection. In addition to the types of personal information involved, the processing purpose and method, the retention period, the ways and procedures that individuals exercise legal rights, the contact person, the employer shall also inform the individual of the necessity for the processing and the impact of this on his/her personal interests and rights. A specific consent shall be obtained from the individual unless the processing of the sensitive information is for performance of a contract or for HR management according to the employer's policies or a collective agreement signed by the employer.
9. Are there any quotas at board level or below, and if so what do they relate to?
An employer shall employ disabled persons with a number of no less than 1.5% of the total number of its employees. If the employer fails to meet this quota, it shall pay disabled employment funds to the government. There is no requirement on quotas at the board level or management level.
10. Are there any corporate governance rules that relate to D&I, and what do they say?
No.