Safeguard female workers' rights

Beijing, Shanghai and some other regions have taken the lead in implementing the revised family planning policy, allowing married couples to have a second child if either the husband or the wife (or both) is the only child of his/her parents. Although Chinese people welcome the landmark revision, many are worried that it would make women more vulnerable in the workplace.

Their worries are not unfounded. Employers in general have been reluctant to recruit or promote women of child-bearing age who have not yet become mothers. And even with the revised family planning policy, many women will hesitate to have a second child unless there are some concrete measures to eliminate discrimination against pregnant women.

Since the Labor Law bars employers from firing woman employees if they conceive or during their breastfeeding period, pregnancy should no longer hinder a woman's career.

The truth, however, is different. During pregnancy many women find themselves under increased work pressure, while others feel undervalued for being forced to work on unimportant assignments. These are common tricks employers have been using to force pregnant employees to resign voluntarily, reduce labor costs and evade legal liabilities. Once pregnant women succumb to the pressure and resign, employers can use their resignation letters to prevent them from resuming work or seeking compensation.

Since such acts of employers are "constructive dismissals"-ones in which employers unilaterally change the essential components of employees' employment contracts-the government should accord priority to improving legislation on wrongful dismissals.

Indeed, an employee may, pursuant to the provisions of the Labor Contract Law, unilaterally terminate the job contract without giving notice 30 days in advance if the employer violates the laws or breaches the contract. An employee could also claim double payment of compensation if he/she is illegally dismissed. But such provisions apply only to certain circumstances, such as when an employer fails to provide labor protection or does not pay remuneration as agreed to in the contract, and fail to protect pregnant employees who get the "cold shoulder" from or are verbally abused by employers/bosses in the workplace and are thus forced to resign.

Canada has been handling constructive dismissal cases with sensitivity. Generally, Canadian courts rule that an employee has been constructively dismissed if an employer has unilaterally altered the essential terms of the employee's employment contract through such means as demotion, unwanted transfer and other punitive treatment forcing him/her to quit the job. For example, a case of constructive dismissal can be made if an employer substantially reduces the work done by an employee in her early stage of pregnancy and asks her subordinates to report to another senior worker. The employee then might feel trapped and pressured to comply with his/her boss or could be forced to resign.

The Hong Kong Special Administrative Region, too, deals with such cases tactfully. According to the SAR's Employment Ordinance, a person under a continuous employment contract for at least 24 months could file claims for damages against an employer for being dismissed unreasonably or forced to resign because of unilateral alterations by the employer in his/her employment contract. The Hong Kong Labor Tribunal, in considering such a case, may order the employer to make terminal payments to the dismissed employee or reinstate him/her subject to mutual consent.

On the Chinese mainland, more than legislative efforts are needed to deal with the repercussions the revised family planning policy may have on women in the workplace. For instance, the government could grant tax cuts, subsidized loans and other incentives to employers for the money they give as maternity leave pay to their employees. It also could declare awards for companies that follow the equal-hiring principle and promote woman employees of child-bearing age, which would improve their image without substantially increasing the government's financial burden.

People abided by the family planning policy for more than three decades and helped control the population growth because its enforcement was made a key component of the annual performance of local governments. It is thus imperative to include the promotion of equal employment, especially for women of child-bearing age, as an indicator of the performance of local officials.

Women of child-bearing age will continue to hesitate to have even one, let alone a second, child unless a package of supportive measures, which include but are not limited to the ones mentioned above, is put in place to end discrimination against pregnant women in the workplace.

The author is a professor of law at China Women's University.

(China Daily 03/15/2014 page5)