Are you being accused of sexual harassment because you love to talk about pornography? The judge reminded that you have to be measured in jokes, as long as you go against the wishes of others, you may be legally liable
Is it a joke or sexual harassment to talk nonsense in the workplace?
Our reporter Cao Yue
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Because of the high frequency of contact between colleagues and the high overlap, the probability of sexual harassment in the workplace is relatively high.
Some people in the workplace often "jokes, sometimes a bit heavy", does this behavior constitute workplace sexual harassment?
When a laborer who loves to speak pornography is suspected of sexual harassment in the workplace, can the employer terminate the labor relationship accordingly?
The reporter interviewed relevant legal experts.
Is it a joke or sexual harassment in the workplace to say "pornography"?
A few days ago, the head chef of a hotel was sued by a female colleague for sexual harassment because of his usual "pornography".
Workers who speak pornography are suspected of sexual harassment in the workplace. Is it legal for the employer to terminate the labor relationship based on this?
The reporter learned from an interview that the judge will consider what kind of behavior and the extent of the behavior can be defined as sexual harassment in the trial.
Saying pornography is causing big trouble
Xiao Lu is an employee of the back kitchen of a hotel. She went to the court to sue that she had been harassed by chef Du for a long time during her work, resulting in mental anxiety, depression and other serious consequences. Therefore, she requested the court to order Du to compensate her for medical expenses and mental damage. Soothing money and so on.
After trial, the court of first instance sentenced Du to compensate Xiao Lu for mental damages of 5,000 yuan, and Du refused to accept the appeal.
In May of this year, the court of second instance upheld the original verdict.
The court found that one day, Xiao Lu went to Du's office to get a chef's hat, and the next day Xiao Lu reported to the police that he had been sexually harassed in Du's office.
The local police station made a transcript of the interrogation of both parties. Du issued a letter of guarantee at the police station to ensure serious reflection, never do anything that affects the company's image and the physical and mental health of employees, never harass others through language or body, and never except work. Have any contact with Xiao Lu.
The court consulted the transcript of the police station's inquiries, and other hotel staff commented that Du was "just chatting and talking about pornography" and "joking jokes, sometimes a bit heavy".
During the trial, Du stated that "I may have talked about pornography when there are many people."
The court found that, against the wishes of others, sexual harassment of others 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.
In this case, based on evidence such as Xiao Lu’s report to the police and police station inquiry transcripts, Xiao Lu’s claim that he had been sexually harassed by Du was highly likely. The court presumed that Du’s behavior violated Xiao Lu’s personal dignity and should be compensated for his mental damage. solatium.
The court also held that Du, as the head chef of his unit, has a certain management status and should fully respect the personal dignity and inner feelings of female employees, regulate his words and deeds, and create a civilized and healthy working environment.
Joking should be done well
According to the 2020 China Workplace Sexual Harassment Survey Report, more than 60% of respondents said they have experienced workplace sexual harassment. Workplace sexual harassment often comes from “acquaintances” such as employers, bosses, colleagues, customers, and 70% of the respondents choose silence.
But silence often leads to more serious physical and mental damage.
Xu Mou works as a security guard in a property company.
A female employee of the company reported to the company that Xu had been harassed many times.
After investigation and verification, the company found that Xu had multiple similar situations.
Other colleagues reported that Xu also had verbal and behavioral teasing on other female employees before, which caused the female employees to dare not go to the night shift.
In addition, four other female colleagues reported that Xu had hugged, touched, and patted them.
But Xu himself thinks that he is just joking and playing around.
The company expelled him on the grounds of seriously affecting the normal production order of the enterprise.
Xu refused to accept and filed a lawsuit to the court.
The court held that Xu's approach exceeded the normal standard of interaction between men and women, and that he had also acted indecently towards other female employees of the company before.
The company clearly stated in the employee handbook that the behavior could be expelled if the circumstances were serious, and Xu knew about it.
Therefore, the court found that the company's dismissal of Xu was legal.
Are the "yellow jokes" in the workplace a joke or sexual harassment?
Lawyer Wang Hui from Jiangxi Hearing Law Firm stated that the "Civil Code" clearly stipulates that whether it constitutes workplace sexual harassment depends mainly on whether it violates the wishes of others.
"It depends on whether it causes uncomfortable or even uneasy feelings for the person involved, so the judgment is more subjective."
Liu Li, assistant judge of the Xicheng District Court of Beijing, believes that “you must make a reasonable joke. As long as it is against the wishes of others, both men and women can request the perpetrator to bear civil liability”.
Li Yanhong, a judge of the Dongcheng District Court in Beijing, said that verbal harassment involving vulgar and provocative jokes and whether it constitutes workplace sexual harassment depends on whether the content involved is aimed at a specific target.
"What kind of behavior and to what extent can be defined as sexual harassment, such as telling pornographic jokes, sending harassing text messages, verbal provocations, etc. in a multi-person office, does it need to reach a certain amount or level? Some are on the margins of the scale How to define whether his behavior is a joke or sexual suggestion, and whether it constitutes sexual harassment, the judge will consider in the trial."
When employees encounter sexual harassment, companies should stand up
Li Yanhong introduced that in trial practice, the court can investigate the evidence that employees cannot obtain when handling sexual harassment cases, and can investigate according to their powers and appropriately allocate the burden of proof to reasonably reduce the burden of proof for employees.
In some cases, the court reviewed the evidence in accordance with the highly probabilistic proof standard in civil cases, combined with logical reasoning and the rules of life experience, and then determined the sexual harassment, supporting the victim's claim.
"Sexual harassment in the workplace, especially verbal harassment, has a short period of time. Therefore, it is important to ask the person concerned to collect evidence when they feel unwell." Li Yanhong suggested that if the person feels assaulted or hurt, he should clearly express it. The attitude of refusal, on the one hand, is to lodge a verbal protest to the infringer, on the other hand, it can report the problem to the competent leadership. These two ways of expressing refusal are to prove that one has been violated.
In addition, from the perspective of collecting evidence, it is best to record and video when you feel assaulted, save WeChat chat records, or ask a third person to do witness testimony.
Liu Li told reporters: “Units have a compulsory obligation to prevent and stop sexual harassment, and should implement specific measures, otherwise they will bear legal responsibility. If sexual harassment occurs, the unit can stop it by dismissing, clarifying the unit’s responsibilities, and effectively preventing and reducing cases. happen".
Liu Li also reminded that employers should not arbitrarily dismiss employees based on this, and should give appropriate warnings or penalties based on the serious circumstances. There is a clear agreement in the rules and regulations, and there must be written or recorded evidence proving that the perpetrator has involved sexual harassment in the workplace to make the dismissal legal."
Therefore, Liu Li suggested that employers should improve the internal mechanism to prevent sexual harassment, clearly stipulate in the rules and regulations that sexual harassment is prohibited, unblocked channels for complaints and reports, strict punishment mechanisms, strengthen training and education for employees against sexual harassment, and effectively protect the rights and interests of workers.