On 28 August 2005, the Standing Committee of the National People's Congress passed an amendment to the Law on the Protection of Women's Rights and Interests. The new law, which comes into force on 1 December 2005, states that gender equality is one of China's basic national policies (Article 2). Observers may think that the amendment, introduced by a party that has been in existence for 84 years and in power for 56, is rather belated. Although the communist government created slogans such as "Personal Autonomy for Marriage and Gender Equality" as early ago as the 1950s in an effort to recruit more female supporters, the Communist Party never enacted any concrete legislation to protect women's rights in other spheres once it had consolidated its rule. Gender inequality worsened after China launched its programme of economic reform in late 1970s as women workers' rights were brutally violated in the new market-oriented society and competitive labour market. In light of this, the new amendments in the Law on the Protection of Women's Rights and Interests are to be welcomed as a well-meaning attempt to protect women's rights. In particular, one section of the law – Chapter Four – highlights labour and social security rights, covering women's rights to work, salaries, promotion, working conditions and social security. However, although the regulations have many good points in theory, we believe that there will be some problems in using them in practice. There needs to be more legislative and judicial interpretations and an effective mechanism for dealing with complaints. The following are our recommendations for the new law:
Women's right to work
Female workers in state-owned enterprises (SOEs) were the first victims of the massive lay-offs in the 1990s. The textile industry was one of the first to be affected by structural changes, which led to several million textile workers being made redundant. Since most factories primarily employed female workers, women bore the brunt of these lay-offs. State-owned enterprises then introduced official policies aimed at increasing efficiency by cutting the number of staff members which led to waves of large-scale redundancies across the country. Women workers were often the first to be dismissed or retrenched and it was not uncommon to find women under the age of 30 being enrolled in "internal early retirement" programmes. According to Chinese law, these workers would continue to enjoy the company's basic benefits and receive a small amount of money similar to welfare payments. According to official figures, 62.8% of retrenched and unemployed workers were women. In some parts of China, women made up between 70% and 80% of the total numbers of unemployed. At the same time, women made up only 23% of the number of employees that were redeployed. They lost their jobs for a variety of reasons. Officials sometimes said that the enterprises were loss-making or that the enterprises wanted to ensure that they saved jobs for younger people and for members of the women workers' families. Suddenly, it appeared that the public had reached a "consensus" that dismissing male workers would affect social stability and create family problems. Many people seemed to think that it would be "impossible" for a man to live without his career, but that a woman without a job could always become a housewife. These kinds of beliefs ignore the sense of loss a woman can feel if she loses her job and the benefits that getting a job can bring to a woman's social status and self-esteem. If we look at the dismissal of these SOE workers as a process of marginalization, then the dismissal of female workers places them in an even worse position than their male counterparts find themselves in. Once they lose their jobs, it becomes almost impossible for them to return to the labour market. Article 22 of the amended law now states that women and men have the same right to work and to social security benefits. Article 27 says that employers must not discriminate against women when they implement the national retirement system. In other words, companies must scrap policies that allow them to dismiss women workers first. Anyone who violates this new law must be held responsible under it. We must wait and see whether this newly amended law will protect female workers' rights to work in practice.
Discriminatory recruitment practices
Since economic reform began in 1978, job adverts, job hunting, interviews, and employment contracts have become more and more common in the Chinese labour market. But discrimination against female applicants has become an integral part of the job market. Readers browsing the job section of a newspaper, for example, often find that being "unmarried women" is a common requirement for employment. During job interviews, female applicants often face questions about their private life, such as "Do you have a boyfriend?" "When do you plan to get married?" or "Will you have a baby in the near future?" Some contracts even stipulate that a woman is not allowed to get married or to have a child during the duration of the contract. In the Pearl River Delta, some factories have their own regulations. For example, some will not employ female workers who have been pregnant for seven months and whose children are below one year old. These kind of internal rules mean that a factory does not need to pay any of its workers' medical expenses incurred during pregnancy, or maternity leave pay (which the factory must pay under Chinese law). It can also help factories to keep the costs of production low, because female workers who have recently had children would require breaks for breast-feeding or time off to take care of their infant children. Article 23 of the newly amended Law on the Protection of Women's Rights and Interests says that recruitment should not be based on gender, nor should employers be allowed to use gender as an excuse to put additional job requirements for women. It also explicitly says that employment contracts must not include any clauses that deal with a female employee's marital or child-bearing status. Such a provision would certainly help remove unfair practices, but we have to query whether the labour departments will take the new provision seriously enough, and whether they will be able to monitor the recruitment process effectively enough. While we are not trying to underestimate the ability of officials within the labour departments, the fact is that when discrimination against female workers is so rampant and when they have to deal with so many other pressing employment practices issues such as wage arrears and illegal overtime requirements, it will be a big challenge for the authorities to monitor discrimination against women workers.
Sexual harassment in the workplace
In recent years, sexual harassment in the workplace has become a growing problem in China. According to a survey carried out in 2003 by China's first women's studies research centre, Huakun Womens Research Centre, 84% of the women interviewed said they had suffered one or more types of sexual harassment. The majority of the victims are unmarried working women under the age of 30. The survey indicated that 50% of the sexual harassment took place in the workplace and that in 36% of the cases, the perpetrator was the woman's supervisor. Another piece of research conducted by the Chinese Academy of Social Sciences in 2004 showed that one-third of the female migrant workers in the Pearl River Delta region had suffered sexual harassment while 60% of women migrant workers in Beijing reported similar experiences. Some mainland scholars said that it was more likely for female migrant workers to be sexually harassed because they are classed as both "migrants" and "peasants". As migrants, they were generally considered "outsiders" by local people and, as such, lacked social support, while as "peasants," they were considered the lowest class on the social ladder and, as such, they were the most exploited.
This is the first time that the Chinese government has included provisions banning sexual harassment in the Law on the Protection of Women's Rights and Interests since the law came into force in 1992. The new amendment has attracted much attention from the media. Article 40 of the amended law says that victims of sexual harassment preserve the right to complain to their employer or to other relevant authorities. This article will certainly be popular with women in China. But it is doubtful that it can effectively prevent sexual harassment in the workplace in practice. First, sexual harassment is not well defined in China and the new amendment does not clarify how women workers should report any sexual harassment. Second, Tan Shen, a researcher who has done extensive research into female migrant workers in the Pearl River Delta, has pointed out that most of the women workers she interviewed told her that they were sexually harassed by the owners and managers of their factories. Mainland Chinese media has also reported that some waitresses working in restaurants in Guangdong Province not only have to work long hours in an uncomfortable environment, but also often have to endure verbal and physical sexual harassment from their customers. If they complain to their bosses, they would only be told: "You had better do what the customer wants or else I will hold you responsible for any losses to my business." Female workers, especially migrants, are helpless when they encounter sexual harassment from their bosses and their customers, particularly when their bosses adopt this kind of "the customer can do no wrong" approach.
During a press conference on 28 August, Xin Chunying, vice-director of the Legislative Affairs Commission of the Standing Committee of the NPC, did not rule out additional legal clarification about what constitutes sexual harassment and how it should be dealt with. We would welcome clarification and we recommend that a specific commission be set up to supervise the way that the amended law is implemented. We hope that the Law on the Protection of Women's Rights and Interests will become a cornerstone of women's rights in China and a key weapon in the battle to protect female workers from discriminatory working conditions.
China Labour Bulletin
13 October 2005