How to avoid being "married without children" as an employment disadvantage? Experts analyze the incident of "the woman was resigned on the first day of work because she was married"
interview background
On January 12, a news about "a woman was resigned on her first day at work because she was married" rushed into the hot search.
According to reports, Ms. Wang from Guangzhou City, Guangdong Province went to work on her first day. After filling out the information, she was learning about the company’s introduction and daily work responsibilities when she was suddenly called to the office by HR to inform her of her dismissal. The reason was that “Ms. Wang is married, I'm going to have kids later."
Ms. Wang said that she was very angry when she encountered this situation for the first time.
After the incident was exposed, many netizens were outraged by the blatant discrimination against women in employment by the companies involved, and called for more law enforcement, an optimized employment environment, and the elimination of employment discrimination for women.
What laws and regulations are violated to discriminate against women in employment?
How should governance be strengthened to address workplace discrimination?
The reporter conducted an in-depth interview for this.
□ Our reporter Zhang Shoukun
I was fired by the company just after completing the entry procedures!
What puzzled Ms. Wang from Guangzhou City, Guangdong Province was that she had told the company that she was "married" when she was recruiting, and she had clearly stated that she had no plans to conceive in the near future when confronted with personnel, but she still could not escape the end of being fired.
Ms. Wang's experience is not an exception.
Employment discrimination against women has existed for a long time: a woman who was 7 months pregnant was told by the company that she had no maternity leave and was dismissed; a hotel asked a female employee to "resign voluntarily if she was pregnant"; a female employee was fired by the company because she was pregnant with a second child...
This is not only gender discrimination against women in the workplace, but also a disregard for labor laws.
According to Shen Jianfeng, Dean of the School of Law of the China Institute of Labor Relations, this kind of behavior of excluding employment, raising employment conditions, or terminating labor contracts on the grounds of gender or marriage clearly constitutes employment discrimination and illegal termination of labor contracts, and also violates women's rights and interests. safeguard law.
After Ms. Wang's resignation was exposed, many netizens said that there are countless things about women being discriminated against in the workplace.
Some female netizens said that they would be asked "are you married" and "are you planning to have children" during the interview, and some corporate personnel even bluntly said that being married and not having children is a disadvantage.
Regarding the problem that some companies are reluctant to find employees who are married but not pregnant or are preparing for pregnancy, a company personnel in Shanghai told reporters that the reason is very simple, that is, they are afraid of affecting the work and thus affecting the company's profitability.
Maternity leave is equivalent to paid time off for female workers, and they may not be able to devote themselves to work fully after having children.
The law of our country clearly stipulates that the state guarantees that women enjoy equal labor and social security rights with men.
In the process of recruiting (employing), unless otherwise stipulated by the state, the employer shall not restrict marriage, childbirth or the status of marriage and childbearing as conditions for recruitment (employment).
But why, in real life, is gender discrimination in the workplace still common and repeated?
The interviewed experts believe that this is caused by many reasons, in addition to factors such as concepts and social and economic development, there are also factors in the legal system.
Yang Baoquan, a member of the Professional Committee of Labor and Social Security of the Beijing Lawyers Association, believes that discrimination against women in the employment process often does not exist in an obvious and direct way, but in a hidden way that is not easy to detect, or even "cloaked in legal Outerwear”, the discrimination women face runs through the entire employment process from application, work, promotion, salary and benefits to retirement.
For employers, there are many specific operational methods for circumventing laws and regulations, and the cost of breaking the law is low.
According to Zhao Bin, a lawyer from Beijing Yinghe Law Firm, the cost of laborers' rights protection is high, and the relevant legislation on anti-employment discrimination in my country is too principled and lacks operability, which is prone to difficulties such as acceptance and trial. Responsibility requirements are also relatively high, making it difficult to defend rights.
At the same time, the supervision of employment discrimination by relevant competent authorities needs to be strengthened. For example, the Labor Security Supervision Regulations have not explicitly included employment discrimination in labor security supervision.
"Existing laws do not fully balance the interests of employers, female employees, and the state. Recruiting female employees may increase labor costs for employers, and there is no relevant sharing mechanism. Employers will inevitably exclude female employees. For example, the wages during the maternity leave period are currently paid by the employer in many places, and some places stipulate that the paternity leave enjoyed by men can be 'transferred' to their spouses." Shen Jianfeng said.
How can women's rights and interests in the workplace be effectively protected?
Shen Jianfeng said that after the revision of the Law on the Protection of Women's Rights and Interests, the behaviors that constitute employment discrimination have been further clarified, and the employment discrimination against women can be ordered to be corrected by the Human Resources and Social Security Department; those who refuse to make corrections or the circumstances are serious, will be fined not less than 10,000 yuan but not less than 50,000 yuan. fines of less than 100 yuan, thus strengthening the governance of gender discrimination.
In addition, after female employees encounter employment discrimination, they can bring a lawsuit to the people's court, or file a complaint or report with the labor security supervision department for handling.
Yang Baoquan said that in order to more effectively protect women's right to equal employment, the Law on the Protection of Women's Rights and Interests includes gender discrimination in employment into the scope of public interest litigation.
It is more advantageous for the procuratorate to file an anti-employment gender discrimination public interest lawsuit than to file an individual lawsuit.
Therefore, if workers feel that it is difficult to protect their rights, they can turn to the procuratorate for help.
"The right to equal employment has the dual attributes of personality rights and identity rights. As a special form of tort, employment discrimination can refer to the form of liability applicable to the tort law. In addition to the need to compensate the actual expenses and losses incurred by the victim In addition, the loss of job opportunities or future economic losses of the job should be compensated. If the employer causes serious losses to the laborers, punitive compensation should be paid. If serious mental damage is caused, compensation for mental damage should be made according to the circumstances of the damage. In order to increase the illegal cost of the employer, it will play a role in regulating and restraining." Yang Baoquan said.
It is worth noting that, in Shen Jianfeng’s view, as the concept of anti-employment discrimination has become more popular, direct and explicit employment discrimination is relatively rare in practice. Few employers specify gender requirements in recruitment brochures, and few The employer tells the worker the reasons for not being hired.
At present, implicit employment discrimination is relatively common and has become a difficulty and pain point in the protection of labor rights.
For covert employment discrimination, the biggest difficulty in rights protection lies in the proof.
In this regard, Zhao Bin suggested that workers should pay attention to collecting relevant evidence.
At the same time, relevant departments should intensify efforts in advocacy, supervision, and law enforcement of equal employment, and strive to create a fair employment environment.
Yang Baoquan believes that the judicial relief mechanism should also be improved.
In the recruitment stage before the establishment of labor relations, that is, if a victim of gender discrimination in employment wants to file a lawsuit, according to the provisions of the existing evidence rules, he needs to collect the evidence of the employer’s infringement. Not only is it far more difficult in practice than the parties involved in labor disputes, but it is also likely to be impossible to do so, making the protection of women's legal rights and equal employment rights empty talk.
Therefore, it is necessary to construct a systematic and complete judicial procedure.
"When conditions are ripe in the future, we should further improve the Employment Promotion Law, formulate a special anti-employment discrimination law, or add anti-employment discrimination rules to the Labor Standards Law, clarify the identification standards of employment discrimination, reasonably allocate the burden of proof for employment discrimination, and optimize Relief procedures for employment discrimination." Shen Jianfeng said.