What not to ask a job applicant?

When interviewing a job applicant, you should ensure that your questions do not lead to discrimination claims. If your questioning implies that you are taking account of attributes of the applicant that are prohibited under the law then claims may result.

What are the protected attributes in the PRC?

In China it is unlawful to discriminate against a job applicant on the basis of nationality, race, gender, religious belief, disability, residence status (i.e., rural worker or urban worker) or physical status (i.e., whether he/she is a carrier of epidemic pathogens, e.g. Hepatitis B).

A disabled person is one who suffers from abnormalities or loss of a certain organ or function, psychologically or physiologically, or has lost in whole or in part the ability to perform an activity in the way considered normal. Such disability may include visual, hearing, speech, or physical disabilities; mental retardation; mental disorders, multiple disabilities; and/or other disabilities.

Will it lead to any legal consequences if I ask questions in relation to those protected attributes?

If you ask questions on these aspects then this may result in a claim by an unsuccessful job applicant who could argue that you were discriminating against him/her by employing another applicant without those protected attributes.

However, PRC law is silent on the consequences of a breach of the discrimination provisions. Based on recently reported discrimination cases (especially those raised by unsuccessful job applicants who are carriers of Hepatitis B), an employer who has discriminated against a job applicant with one of the protected attributes could be ordered to employ the applicant; or to compensate the applicant for financial losses and mental injury.

What should I ask the job applicant?

Theoretically you should only ask for information which directly relates to the employment contract to be entered into with the job applicant. Be prepared to justify any question having regard to its relevance to the job in question. So, an applicant’s sexual orientation, family status and even, in many cases, criminal record may be irrelevant to this job and, therefore, should be avoided.

Due to technical reasons, we have changed the name of our PRC Labour Law bulletins. Same useful information, in a new, Bitesize format.

If you are interested in receiving our "PRC Labour Law - Bitesize" articles, or if you have any questions on PRC employment law, please email bitesize@mayerbrown.com.