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EVER WONDER HOW working women fare under the law in China and India, the world’s most populous countries?
According to two recently published Catalyst tools, China: The Legal Framework for Women and Work and India: The Legal Framework for Women and Work, women in both countries have many rights on paper—and relatively few in practice, despite their rapidly growing presence in the workforce.
As of 2010, over 356,700,000 Chinese women worked outside of the home. Women’s workforce participation rate (75.2 percent) is higher in China than it is in most developed countries, due in large part to the government’s commitment to gender equality, as exemplified by Mao Zedong’s famous statement, “Women hold up half the sky.”
China has laws designed to protect women from discrimination and guarantee equal rights in the workplace. However, as in many other countries, including the United States, having such laws on the books does not guarantee gender equality in the workplace.
In China, it is illegal for companies to:
• Discriminate based on gender when making hiring decisions. However, according to a study by the Economist Intelligence Unit, China’s laws protecting working women are so weak and so poorly enforced that they often serve to buttress discrimination against women.
China’s so-called “Women’s Law” theoretically protects women from employment discrimination in the areas of hiring, promotions, and salaries or based on marital/family status or pregnancy. This law enshrines gender equality as basic state policy, but it leaves many women vulnerable by failing to provide clear definitions of either gender-based discrimination or sexual harassment.
Chinese women who work outside of the home are legally entitled to:
• Maternity leave and protections during pregnancy According to state regulations, women’s “basic salaries may not be reduced and their Labor contracts may not be cancelled” during pregnancy, maternity leave, or nursing periods. Working women receive a maternity allowance in place of their salaries during their maternity leave, which is paid through an employer-funded insurance plan.
Some facts about sexual harassment in China:
• The phrase “sexual harassment” only entered the legal lexicon in 2005, when the Women’s Law was approved.
Besides failing to define harassment, the law does not specify punitive measures, making enforcement difficult.
Because the Women’s Law is not part of the Labor Contract Law, sexual harassment victims cannot sue their employers, making it easy for companies to escape liability in such cases.
• Sexual harassment is often considered an issue between two individuals, rather than one that companies should seek to address.
In India, women account for over 32 percent of the country’s economically active population, and the Indian constitution guarantees women equality under the law. As in China, there are many laws in place in India designed to protect a woman’s rights at work but they are often unenforced and/or blatantly circumvented by employers.
There are many reasons for this, including the fact that India’s existing laws are not clearly written and/or do not define coverage, assign responsibility, or outline enforcement mechanisms. Moreover, India’s labor laws can be region-specific, industry-specific, or centralized—and the centralized laws may include state-specific amendments, further contributing to inconsistencies in labor legislation.
Finally, India is burdened with a massive bureaucracy featuring many uncoordinated departments, creating myriad opportunities for corruption and corporate shirking of responsibility.
In India, women who work for public institutions fare slightly better than those who work for private companies:
• The Constitution guarantees fundamental rights to women. Article 16 provides for equality of opportunity in matters of public employment. But the Constitution only covers state or public institutions and does not extend to the private sector.
• There is no overall anti-discrimination policy in India—or even a statutory definition of the word “discrimination.” Instead, there is a loose series of laws outlining various aspects of equality, and certain customary laws can remain valid even when violating these provisions.
• Indian law entitles new mothers up to three months of paid maternity leave in every sector, whether on staff or contract. In addition, there are laws that protect a woman from being fired for being pregnant or taking maternity leave.
Sexual harassment is a huge, inadequately addressed social problem in India:
• Recent studies show that between 40 and 80 percent of Indian women experience sexual harassment (sometimes known as “eve teasing”) at work. In two-thirds of those cases, the perpetrator is the woman’s supervisor or superior.
• Although the Indian Supreme Court published guidelines on sexual harassment in 1977, most women still aren’t aware of their existence. These guidelines defined sexual harassment as including unwanted physical contact, advances, or requests, as well as verbal or non-verbal sexual conduct and the display of pornographic material. The guidelines apply to the private as well as the public sector.
• Despite this Supreme Court ruling, there is currently no legislation in place to protect Indian women from sexual harassment at work.
When it comes to women’s rights at work, it’s important to remember that cultural context and geographic location matter—and that equality under the law doesn’t necessarily guarantee equality in daily life. Together, we can work to ensure that the reality of women’s lives aligns with their legal status. A right isn’t a right unless it can be exercised.