Unaware of her pregnancy, Xiao Mei joined the staff of a fitness center as a fitness coach and signed a commitment of non-pregnancy. However, the company learned of her pregnancy and dissolved the labor contract with Xiao Mei. Are the company’s actions legal? The lawyer in support of Xiao Mei contends that the center is not authorized to dissolve the contract, while the lawyer in support of the center insists that the behavior of Xiao Mei is equivalent to fraud and thus the labor relationship should be voided.

I. Case Playback

Xiao Mei, a beautiful and vivacious lady, was engaged in a fashionable job as a fitness coach. She was exercising to lively music everyday which was not only good for her health and kept her young, but also supplied her with a considerable income. It was the nature of this ideal occupation that was troubling Xiao Mei because, much to her surprise, she was pregnant.
At the beginning of the year, Xiao Mei resigned from the original fitness center and went to a newly opened fitness center near her new home to apply for a job. After the interview, the fitness center was very satisfied with Xiao Mei. When signing the labor contract, the fitness center simultaneously presented a commitment contract which included her guarantee that her fitness coach certificate was real and valid, her verification that she did not have heart disease, hypertension, diabetes, etc., and a pledge that she was not pregnant. Xiao Mei signed her name on the commitment contract.
After a month had passed, Xiao Mei felt something strange and went to the hospital for an examination. The result showed that she was pregnant. Upon learning that she was a fitness coach, the doctor recorded in the medical file that she was not suitable to continue in this job.
With the doctor’s advice in hand, Xiao Mei went to the manager and requested to change positions. However, what she got was nothing but a notice that she was fired! The notice said, "According to the medical confirmation which Xiao Mei provided, Xiao Mei was pregnant when she applied for the job. When signing the labor contract and the commitment contract, she failed to tell the fitness center the truth therefore her behavior was fraudulent. According to the Labor Law, labor contracts signed by cheating or intimidation shall be invalid. At the same time, according to the staff handbook of the fitness center, if one fails to truthfully sign the commitment contract and one’s physical condition is not suitable for the job, the company is authorized to dissolve the labor contract. Therefore, the company decides to dissolve the labor contract with Xiao Mei.”
    Xiao Mei felt she was treated unfairly in the center’s decision. She argued that she had not known that she was already pregnant when applying for the job. She never intended to conceal it, and her actions were by no means fraudulent. The Labor Law stipulates that an employing unit should not dissolve a labor contract with a pregnant woman. Xiao Mei, pondering at home, refused to accept the decision of the unit and resorted to arbitration.

II. Legal Background

In English, the word “labor” can be interpreted not only as "work", but also as “giving birth". Giving birth itself is a great labor. For female staff, pregnancy not only means great physiological changes, but also great professional challenges. In practice, being pregnant is difficult for professional women, and women’s labor rights and interests are still frequently infringed.
In China, there is a long-standing history of protecting women’s rights in the labor relationship. As early as in the 1980's, the State Council of the People's Republic of China promulgated Working Female Protection Regulations to protect female workers’ rights and interests. The Labor Law, implemented in 1995, also has a section specifically protecting female staff and juvenile workers.
The Labor Contract Law inherits the tradition of protecting female workers. Article 42 stipulates that if a female employee is pregnant, near delivery or in her postpartum or lactation period, the employing unit cannot unilaterally dissolve the labor contract with her be if she is not at fault.

III. Lawyer Debate

The unit has no authority to decide whether the labor contract is valid or not.
Lawyer Hu Jie from Shanghai Kai Rong Law Firm in support of Xiao Mei

First, Xiao Mei had no intention to cheat. When requiring Xiao Mei to sign the commitment contract, the employing unit did not demand that Xiao Mei submit a physical examination report. She didn’t know herself that she was pregnant. Using common sense, it would be impossible for Xiao Mei to conceal her unknown pregnancy in order to win the job.
Second, the employing unit has no authority to decide independently whether or not the labor contract is valid. According to Article 18 of the Labor Law, labor contracts concluded in violation of laws, administrative rules and regulations and labor contracts concluded by resorting to such measures as cheating and intimidation shall be invalid. Article 18 also states that a Labor Dispute Arbitration Committee or the People’s Court shall decide the invalidity of a labor contract. Therefore, the fitness center does not have the right to declare the contract void and then dissolve the contract because Xiao Mei committed fraud and violated the unit’s internal rules. In fact, what is really invalid is the fitness center’s dissolution of the labor contract.
Furthermore, the judicial interpretation of the Supreme People's Court on labor disputes stipulates that, in cases about the dissolution of a labor contract due to dismissal and name removal , the employing units shall bear the burden of proof. Therefore, the fitness center is responsible for presenting evidence which proves that Xiao Mei knew she was pregnant when she signed the contract and that she intentionally concealed this fact. If the unit fails to present sufficient evidence, according to the Labor Law and the Laws to Protect the Interests and Rights of Women, the fitness center has no right to dissolve the contract with Xiao Mei.

As it does not tally with the employment condition, the contract certainly can be dissolved.
Director Chen Yingjie from Shanghai Hu Nan Law Firm in support of the fitness center

First, the job requirements of the employing unit are reasonable. The fitness center, which is newly opened for business, needs fitness coaches urgently. Because this post entails strenuous exercise, the company requires that applicants for this job must have a clean bill of health and, for female employees, must not be pregnant.
Second, Xiao Mei did not abide by the terms of employment, so the employing unit is entitled to dissolve the contract. Based on Xiao Mei’s non-pregnancy pledge, the company employed her as a fitness coach. Whereas Xiao Mei was pregnant when applying for the job, she was then unable to continue performance of the contract and to stay in her post as a fitness coach. The company is entitled to dissolve the contract so as to maintain its legitimate rights and interests.
Third, the behavior of Xiao Mei was fraudulent. The company thinks that pregnancy should be confirmed by a doctor, but Xiao Mei herself should have had  a rough idea whether or not it was possible that she was pregnant. Xiao Mei, when applying for the job, knew that she was likely to be pregnant, yet she did not go to the hospital for an examination and did not tell the company this vital information when signing the non-pregnancy pledge.
Xiao Mei’s indiscretion was letting the situation evolve and concealing the facts; this is tantamount to fraud. The staff rules state clearly that if an employee does not fulfill the commitment contract or is physically incompetent for the post the company is entitled to dissolve the contract. As Xiao Mei has violated the rules and regulations of the company, the company is entitled to dissolve the labor contract according to its rules and regulations.
In summary, Xiao Mei, a fitness center employee, concealed vital facts and made a false pledge. After signing the labor contract, Xiao Mei was unable to continue to fulfill her contract because of facts which were true before the contract was signed. According to the Shanghai Labor Contract Regulations, the company is entitled to dissolve the contract with Xiao Mei.

IV. Final Judgment

Because Xiao Mei had been on sick leave at home, when Xiao Mei filed a complaint to the Labor Dispute Arbitration Committee, the statute of limitations for arbitration had already been exceeded. The Labor Arbitration Committee rejected Xiao Mei’s application for arbitration.
  
V. Expert Evaluation

The law does not allow employers to request a non-pregnancy commitment.
Consultant Xu Minglang from the Legal Service Center of the East China University of Political Science and Law

A commitment contract is required for a labor contract to be valid. In the Labor Law, it is an important legal appendix which makes the agreement valid. As for the conditions, the law allows the parties to consult, but it also stipulates that the agreed upon conditions must not violate the law or public order. The commitment contract requirement that the laborer promise not to get pregnant is not allowed by the law. The Constitution, the Labor Law and the Law to Protect the Interests and Rights of Women all indicate that males and females have equal employment rights. And pregnant women are particularly protected by the law. Therefore, I think it is invalid to rule that the non-pregnancy commitment is a valid element of the contract.
Truly, the employing unit’s viewpoint is reasonable to some extent. As a fitness coach, being pregnant means not only that one cannot continue work as usual, but also that the work is potentially harmful to the embryo. The important issue is how the employing unit exerts ‘its right to know’. The ‘right to know’ means that the employing unit is entitled to full knowledge of a staff member’s situation at the time of recruitment. But this right only exists during the recruitment stage, and the employing units are not allowed to abuse it.
Furthermore, this is a right to be pro-active; both parties of the labor relationship must take the initiative to know the other party. The employing unit cannot require the laborer to make a unilateral pledge. The fitness center must take the initiative and have Xiao Mei undergo a physical examination, or it shall bear responsibility for the negative consequences.
    The standard of protection in the Labor Contract Law is higher than that in the Labor Law. If the case occurred after the Labor Contract Law is in effect, it would be easier to figure out the result. Obviously, Xiao Mei in this case did not have the intention of cheating, so the commitment contract should be considered an agreement between the unit and Xiao Mei. However, what the Labor Contract Law stresses is the principle “statutory regulation takes precedence over agreement.” During Xiao Mei’s performance of the contract, the unit dissolved the labor contract due to the agreement, but Article 42 in the Labor Contract Law regulates that it is not legitimate to dissolve the contract during a women’s pregnancy. As Article 42 is a statutory provision, its legal force certainly takes precedence over the commitment agreed to in the contract. So, the unit’s action of unilateral dissolution could not be supported by law.

VI.  Editor Evaluation

The protection standards in the Labor Contract Law are higher than those in the Labor Law. If this case occurred after the Labor Contract Law was in effect, it would be easier to figure out the result. Obviously, Xiao Mei in this case did not have the intention to cheat, so the commitment contract should be deemed a valid agreement between the unit and Xiao Mei. However, the Labor Contract Law stresses the principle of “statutory regulation over an agreement”. During Xiao Mei’s performance of the contract, the unit dissolved the labor contract according to the agreement, but Article 42 in Labor Contract Law regulates that it is not legitimate to dissolve the contract during women’s pregnancy. Because Article 42 is a statutory provision, its legal force certainly has precedence over the agreement in the commitment contract. So, the unit’s unilateral dissolution of the contract would not be supported by law.

From LexisNexis