Gender-based discrimination related to labor can face fines of up to 60 million dong
Are “male – only” or “female – only” recruitment news subjected to such fine?
On December 28, 2021, the Government promulgated Decree No.125/2021/ND-CP (“Decree 125”) to replace Decree No.55/2009/ND-CP on regulating sanction of administrative violation in the field of gender equality.
Accordingly, Decree 125 has supplemented a number of acts that are considered illegal in the field of gender equality related to labor and at the same time increase the sanction rate compared to the previous regulations. Specifically, the maximum fine can now be up to 30 million dong for individuals and 60 million dong for organizations instead of 10 million dong for individuals and 20 million dong for organizations like previously.
Therefore, beginning from January 1, 2022, individuals and organizations having the following acts shall be fined according to Decree 125:
Form of sanction
Act of violation
Advocating and inciting others to choose jobs, workplaces, and occupations on gender-based discrimination.
A fine of between 10 million dong to 15 million dong for individuals; and
A fine of between 20 million dong to 30 million dong for organizations.
One of the following acts:
a) Gender-based discrimination in the assurance of occupational safety and health;
b) Compel or prohibit others to choose jobs, workplaces, and occupations due to gender-based discrimination;
c) Gender-based discrimination in the assignment of work which results in income disparities;
d) Refusal to employ or restrict employment of a certain gender.
A fine of between 20 million dong to 30 million dong for individuals; and
A fine of between 40 million dong to 60 million dong for organizations.
Set out and put to force gender-based discrimination regulations, and policies.
Violations against specific regulations on female workers and ensuring gender equality shall be sanctioned under the Government’s Decree on regulating sanction of administrative violation in the field of labor, social insurance, and overseas manpower supply under contract.
Besides the upon forms of sanction, individuals and organizations may be subjected to remedial measures on a case by case basis.
The introduction of Decree 125 raised a question: In fact, to avoid burning daylight, many businesses often choose to specify the company’s recruitment requirements to be “Male-only”, “Female-only” or “Male preferred”, “Female preferred” which results in a question where whether posting the above recruitment posts can lead to the risk of violating Decree 125?
To answer such question, LexNovum Lawyers contacted the specialized department of the Ministry of Labor – Invalids and Social Affairs as well as the Departments of Labor – Invalids and Social Affairs of some provinces and cities which all results in receiving recommendations that: To ensure fairness in recruitment as well as avoid the risk of violating the regulations on gender inequality in labor, businesses should not post any recruitment post which can give even just a hint of gender-based discrimination, such as stating only recruit or not recruit specific sex. Just by posting, you can be seen as a violation of Decree 125.
However, from our perspective, LexNovum Lawyers realized that in fact, there are many groups of industries where due to its nature and specificity of the job, recruiting specific sex is appropriate. Not to mention, specifying certain sex in recruitment (in most cases) saves time for both the candidate and the recruitment department. Accordingly, to ensure smooth recruitment while avoiding the risk of violating the law, in the case job is of its special nature, LexNovum Lawyers recommends Clients to mention all of such information in the recruitment post and clearly states if the actual job at the company shall be most suitable for male or female while making sure the acknowledgment of the company’s goodwill to always ready to receive applications from all candidates. That not only gives the candidates a more objective view of the job to self-assess their suitability with the vacancy but also helps businesses avoid the risk of violating the regulations on gender inequality regulated by labor law.
Dear Valued Client, with the diversity of the labor market and business’ recruitment methods, it is neither appropriate nor feasible to prepare a standard recruitment post template for your reference. Therefore, if you need further assistance on complying with legal regulations at an optimal level and receive recommendations corresponding with each industry, LexNovum Lawyers is always welcome to assist you at our communication channels.
Executor: Nguyễn Phúc Anh Thư & Phan Thị Nhi