Companies must build a system to prevent sexual harassment in the workplace
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Sexual harassment in the workplace is not only related to the labor rights and personal dignity of workers, but also related to corporate image.
The Civil Code stipulates how to identify sexual harassment from the legal level, and clarifies the obligations of relevant units to prevent and stop sexual harassment in the workplace.
Enterprises should establish rules and regulations to ensure that workers are in a safe, hygienic, and violent working environment in order to achieve long-term and steady development.
Regarding the case of "Ali male supervisor infringing on female employees", on the evening of August 14, the public security organ of Jinan City, Shandong Province notified that two criminal suspects had been taken criminal compulsory measures for being suspected of compulsory indecent assault.
The case is still under investigation.
With the "Civil Code" clarifying the employer's responsibility for anti-sexual harassment in legal form, how to build a compliance system to prevent sexual harassment in the workplace and improve the rules and regulations have become issues that companies have to face.
Sexual harassment in the workplace refers to the employer's responsibility
Fang Chen, a legal staff member of a state-owned enterprise in the energy industry, has been thinking about how to develop a system to prevent sexual harassment in the workplace at the corporate compliance building sharing meeting a few days later.
After eight years of legal work, Fang Chen discovered that some companies have incomplete aspects of the protection of employees' personal interests and humanistic care in the establishment of rules and regulations.
She said frankly, "People think that sexual harassment in the workplace rarely happens and rarely talks about, let alone a written system."
In fact, the revised Women’s Rights and Interests Protection Law in 2005 and the Special Provisions on Labor Protection for Female Employees promulgated by the State Council in 2012 both stipulate the responsibility of employers in preventing sexual harassment.
For the first time, the "Civil Code" officially implemented this year clearly requires relevant entities to perform their obligations to prevent and stop sexual harassment from the legal level.
The first paragraph of Article 1010 of the "Civil Code" stipulates that if, against the wishes of others, sexual harassment of others is carried out by means of words, text, images, physical behavior, etc., the victim has the right to request the perpetrator to bear civil liability in accordance with the law.
The second paragraph clarifies that agencies, enterprises, schools and other units shall take reasonable measures such as prevention, acceptance of complaints, investigation and handling, etc., to prevent and stop the use of power, affiliation, etc. to commit sexual harassment.
"Sexual harassment in the workplace has its own characteristics in behavior and legal responsibility." Shen Jianfeng, a professor at the School of Law of Central University of Finance and Economics and dean of the School of Law of China Institute of Labor Relations, explained. Sexual harassment occurs by using this relationship and place, and it brings pressure to workers' rights protection. It is also because of the relevance of the occurrence of this kind of sexual harassment to the management of the employer, working conditions, etc., in terms of responsibility, the law specifically requires the employer to do it. The obligation to prevent sexual harassment. Respecting the dignity of workers and allowing them to work decently are also the obligations of employers." Shen Jianfeng said.
The precedent clarifies the employer’s obligation to prevent sexual harassment
“Building rules and regulations to prevent sexual harassment in the workplace is also a need for employment management. The Civil Code has clearly required employers to perform the obligation to prevent sexual harassment. If the unit does not implement the regulations as internal employment management rules, it may cause employment management dilemmas.” Shen Jianfeng It is pointed out that “typically, in accordance with the current labor contract law, if the employer does not have regulations to prevent sexual harassment, it is impossible to dismiss employees who have committed sexual harassment in accordance with the law.”
The reporter found that after the "Civil Code" was promulgated, there have been some cases of labor disputes involving sexual harassment in the workplace.
Whether the employer can terminate the labor relationship between the two parties on the grounds of sexual harassment by the employee, the court has given an opinion.
Recently, the People's Court of Pudong District, Shanghai tried a case.
Liu secretly took photos of female colleagues in the workplace and sent them to WeChat Moments with texts such as "wife", and repeatedly harassed them by means of text messages and WeChat.
The company terminated the labor contract relationship between the two parties by claiming that Liu's behavior seriously violated the relevant provisions of the company's "Employee Handbook" on "prohibition of sexual harassment".
Liu believed that the company's dissolution was illegal and brought a lawsuit to the court.
After trial, the court refused to support Liu's appeal.
In another case, in September 2017, Xiaoling was harassed by several ambiguous WeChat messages from the company's "big leader" Ding after joining the company.
Xiaoling asked Wang, the head of the department, but Wang failed to take active measures and was later dismissed by the company for serious violations of the "Employee Handbook" and the "Code of Business Conduct".
Wang applied for labor arbitration, demanding that the company pay more than 360,000 yuan in compensation for the illegal termination of the labor contract, which was not supported.
Wang went to the court to dismiss Wang's litigation request at the first instance.
On April 22, the Shanghai No. 1 Intermediate People's Court upheld the original judgment in the second instance and rejected the appeal.
The company's "lawful dismissal" and "no compensation" are the answers given by the court in the above two cases.
In the judgment, the court clarified the basis for the trial-the company stipulated the "prohibition of sexual harassment" in the form of express written in the "Employee Handbook" and fully informed the employees.
According to Article 39 of the Labor Contract Law, if the employee seriously violates the rules and regulations of the employer, the employer may terminate the labor contract.
The company's termination of the labor contract is legal.
The employer’s obligation to prevent sexual harassment has also been emphasized.
In the case of Liu Mou’s dismissal, the judge pointed out that the dismissal of the employer was “a concrete manifestation of fulfilling the statutory obligation to prevent and stop the sexual harassment of female employees”; In accordance with the provisions of Article 1010 of the Civil Code, combined with the actual situation of the unit, effective and detailed measures to prevent sexual harassment should be formulated, and we should strive to form an overall joint force for all employees to prevent sexual harassment through a reasonable system design."
Respect for the personality of workers is the basic value of the company
Zhang Qi is the human resources manager of a hotel in Beijing.
Eight years ago, several hotel attendants reported after leaving their posts that a male manager of the hotel had developed an ambiguous relationship with several female subordinates and treated them differently in work arrangements based on distance.
After investigation and verification, the hotel dismissed the male employee and began to implement the "principle of multiple persons present" and the "principle of leapfrog response."
Zhang Qi explained: "That is, male bosses are looking for female subordinates to talk or arrange jobs. They are not allowed in a separate confined space; employees who report sexual harassment issues are allowed to leapfrog."
However, Zhang Qi said frankly that neither of these two points have formed literal rules and regulations, and they only verbally emphasized them during regular meetings or during the open days for employees.
He also said that companies have certain difficulties at the implementation level. "For example, companies do not have law enforcement powers and it is difficult to obtain evidence. In addition, how to protect employee privacy is also a problem."
As the legal director of a listed software service company in Beijing, Li Hui introduced to reporters the anti-sexual harassment mechanism that her company has built: “Sexual harassment is prohibited” clearly in the “Employee Handbook” and “Employee Code”, and is taught in employee induction training; Unblock the reporting channels and publish the reporting telephone numbers and email addresses; upon receiving the reports, the human resources department, internal control department and legal affairs department will jointly intervene in the investigation.
"After the recent hot social incidents, the company clearly mentioned in the high-level communication meeting that it should focus on sexual harassment in the workplace, and is ready to further improve the early warning mechanism." Li Hui said.
A few days ago, the Ministry of Rights and Interests of the All-China Women’s Federation launched the "Guide to Preventing Sexual Harassment in the Workplace", which provides guidance for employers on how to prevent sexual harassment in the workplace, including establishing and improving regulations and systems for preventing sexual harassment in the workplace, conducting education and training, establishing specialized institutions, and clear handling procedures, etc. .
“Modern enterprise development must have a positive corporate culture and assume necessary social responsibilities to the environment, women, workers, consumers, etc., if it is to develop steadily and far-reachingly.” Shen Jianfeng said, “Respect the personality, dignity, and freedom of workers, etc. , Is the value that enterprises should establish, and it is also the guarantee for the construction of harmonious labor relations."
(At the request of interviewees, Fang Chen, Zhang Qi, and Li Hui are pseudonyms)
Lu Yue
Lu Yue