China Employment Discrimination and Harassment Claims: Defending Foreign Employers

Introduction

Discrimination and harassment claims in China are a patchwork of statutes rather than a single code, and the exposure for a foreign employer sits in three places at once: the anti-discrimination provisions of the Labor Law and the Employment Promotion Law, the anti-harassment duties the Civil Code imposes on employers, and the 2022 revision of the Law on the Protection of Women's Rights and Interests, which turned prevention of sexual harassment into an employer obligation. A single defective termination or a missed anti-harassment measure is how a personnel matter becomes a statutory claim.

The anti-discrimination baseline

Article 12 of the Labor Law provides that workers shall not be discriminated against in employment on grounds of ethnicity, race, sex or religious belief. The Employment Promotion Law widens this: Article 3 guarantees equal employment rights, and Article 62 gives a worker who suffers employment discrimination a direct right to sue in court. The 2022 revision of the Women's Rights Law sharpens the sex-discrimination rules with a concrete list — Article 43 prohibits, in recruitment, practices such as limiting a position to men, inquiring into a female applicant's marriage or childbearing status, making a pregnancy test part of the entry medical, or making restrictions on marriage or childbirth a condition of hire. For an employer, recruitment language and application forms are now evidence, not just process.

Sexual harassment: the employer's own duty

Two provisions create the employer-side obligation. Article 1010 of the Civil Code defines sexual harassment as conduct against a person's will by words, text, images, physical acts or other means, and — the part that matters to employers — requires enterprises and other institutions to adopt reasonable measures of prevention, complaint handling and investigation to prevent and stop harassment committed through authority or subordination. The Women's Rights Law then operationalises that duty: Article 25 lists the specific measures an employer should take — written anti-harassment rules, a designated person or unit, training, complaint channels, an investigation and disposal procedure, and support for the victim — and Article 80 exposes an employer that fails to take reasonable prevention measures to corrective orders and liability. An employer that did nothing now carries its own liability, separate from the harasser's.

Where the money is: wrongful termination

Discrimination and harassment disputes usually arrive as termination disputes. If an employer dismisses an employee in a way the law does not permit — including a dismissal that is in substance retaliation for a complaint, or a discriminatory refusal — the consequence under the Employment Contract Law is severe: Article 87 requires the employer to pay twice the statutory severance under Article 47, not the single amount. A foreign employer defending a discrimination or harassment case is therefore often defending a double-severance claim as well, and the record of the termination — the stated reason, the evidence, and whether the anti-harassment procedure was followed — decides it.

A compliance checklist for foreign employers

• Audit recruitment language: job postings and application forms must not carry any of the Article 43 prohibited practices, including marriage or childbearing inquiries.
• Adopt the Article 25 measures: a written anti-harassment policy, a designated handler, a complaint channel and an investigation procedure — in Chinese, and communicated to staff.
• Document every termination: the reason, the evidence and the procedure, because Article 87 double severance turns on whether the dismissal was lawful.
• Treat complaints as protected activity: a retaliation dismissal converts a minor issue into a double-severance claim.
• Review the handbooks: internal rules only bind if lawful and properly notified, so the anti-discrimination and anti-harassment policies must clear that same bar.

Discrimination and harassment claims against a foreign employer in China are most often lost on process, not on intent: a recruitment form with a prohibited question, an anti-harassment policy that was never issued, or a termination without a documented reason. The statutes set the duties; the employer's own records decide whether it met them. Confirm the current official text of the Labor Law, the Employment Promotion Law, the Civil Code and the Women's Rights Law before acting on any specific figure.