What is the employer's responsibility for sexual harassment in the workplace?

Six departments issued documents to eliminate sexual harassment in the workplace

China Newsweek reporter/Yuan Suwen Intern/Wang Diya

Published in the 2023th issue of China Newsweek magazine on March 3, 20

Following the newly revised Law on the Protection of Rights and Interests of Women at the end of last year, which provided for the prevention of sexual harassment in a number of legal provisions, on the occasion of International Women's Day on March 3, in order to further improve the protection of the rights and interests of female employees, the Ministry of Human Resources and Social Security, the National Health Commission, the Supreme People's Procuratorate, the All-China Federation of Trade Unions, the China Enterprise Confederation/China Entrepreneurs Association, and the All-China Federation of Industry and Commerce jointly issued the System for Eliminating Sexual Harassment in the Workplace (Reference Text) (hereinafter referred to as the Reference Text), further clarifying the definition of sexual harassment It refines the requirements for employers to protect the rights and interests of female employees in the workplace, including how employees report complaints, how employers investigate and deal with them, and how trade unions participate in supervision.

"The release of these documents shows that China's social consensus, social progress, and action in the field of anti-sexual harassment have greatly improved." Jiang Yue, vice president of the Marriage and Family Law Research Association of the China Law Society and a professor at Xiamen University Law School, told China Newsweek that because three of the six departments that issued the document did not have the authority to formulate administrative rules with enforceable effect, the document was marked as a reference text, that is, as a work guide, rather than a regulation or provision that could be cited in judicial decisions.

However, Jiang Yue pointed out that the release of the reference text will provide important references for legal professionals and practitioners, and deepen the understanding of the issue of sexual harassment in the workplace, including courts, lawyers and prosecutors. According to the newly revised Law on the Protection of Rights and Interests of Women, the procuratorate will act as plaintiff in public interest litigation for the protection of women's rights and interests in accordance with the law.

Refine the definition of sexual harassment in the workplace

Eighteen years have passed since the concept of "sexual harassment" was first introduced into our legislation. In 18, the Law on the Protection of Rights and Interests of Women was overhauled for the first time, and article 2005 clearly stipulates that "sexual harassment of women is prohibited", which introduced the concept of "sexual harassment" into national law for the first time.

Since then, China's national defense sexual harassment system has gradually improved. In 2012, the State Council promulgated the Special Provisions on Labor Protection of Female Employees, which requires that "employers shall prevent and stop sexual harassment of female employees in the workplace". In 2018, the Supreme People's Court added "sexual harassment damage liability dispute" as a separate cause of action.

On January 2021, 1, the Civil Code of the People's Republic of China came into force, which clearly defines the concept of sexual harassment and the responsible subjects. Its 1 stipulates that "if a person sexually harasses another person against his will by means of words, words, images, physical behavior, etc., the victim has the right to request the perpetrator to bear civil liability in accordance with the law", and requires that "organs, enterprises, schools and other units shall take reasonable measures such as prevention, acceptance of complaints, investigation and disposal, etc., to prevent and stop sexual harassment by taking advantage of power and subordinate relationships." ”

The newly revised Law on the Protection of Rights and Interests of Women, which came into effect on January 1 this year, further categorizes the most frequent places where sexual harassment occurs, such as schools, employers' workplaces, and commercial accommodation establishments (such as hotels), and puts forward relevant requirements.

As for the reference text released by the six departments, Jiang Yue pointed out that it has a more detailed and specific definition of sexual harassment. Article 2 of the reference text states that "sexual harassment as used in this system refers to the act of causing discomfort related to sex in language, expressions, gestures, words, images, videos, voices, links or any other way against the will of another person, regardless of whether the perpetrator of the act has the purpose or intention of harassment or any other improper purpose." ”

However, Jiang Yue also has some reservations about this definition. She believed that, while the elimination of sexual harassment in the workplace should be based on a "zero tolerance" attitude and focus on the protection of the victim, the above-mentioned definition in the reference text might omit or obscure the fact that sexual harassment must be the subjective intention of the perpetrator. Jiang Yue stressed that certain "accidental hits" or "misunderstandings" that are not due to the subjective malice of the perpetrator should not be recognized as sexual harassment.

She pointed out that sexual harassment should be judged with a more rigorous attitude, "sexual harassment is a very clear intentional violation, it must be intentional, has a clear sexual purpose, and cannot be negligent." She pointed out that in real life, it is indeed easy to have some negligent behavior, such as on the rush hour subway, a man touches a woman's body or sensitive parts, making the woman feel uncomfortable, or in the office, the boss verbally expresses to the subordinate, which makes the subordinate feel confused, then it is necessary to determine whether the perpetrator has an illegal purpose, and when it is determined that he has a sexual purpose or an inherent sexual need, it can be defined as sexual harassment.

As a jurist, Jiang Yue believes that the determination of "sexual harassment" at the judicial adjudication level should contain three main points, one is to violate the will of women, the second is to commit sexual harassment, and the third is that the perpetrator should have a clear sexual purpose and sexual needs.

How to judge whether the perpetrator has sexual purposes and sexual needs? Jiang Yue believes that although it remains at the subjective level, it can still be inferred and restored through rigorous legal logic. "According to the consensus of normal sociocultural psychological construction, adults have the ability to judge the warning line of communication behavior." For example, if she touched someone's sensitive part on the subway, if it was not intentionally touched, the perpetrator would immediately apologize to eliminate the misunderstanding; In the office, the boss's confiding in subordinates may usually be out of a normal psychological need to gain sympathy, and a few may have bad intentions.

"According to the understanding of the social sciences, human behavior is regular and purposeful." Jiang Yue pointed out that although sexual harassment is basically a complaint or report after the fact, the truth can be restored in principle through evidence collection and social psychological law reasoning. If sexual harassment is constituted, responsibility should be pursued strictly and standardly, and if it is resolved through negotiation, although there will be certain compromises and concessions, the spirit of the relevant laws should also be adhered to.

No employer is yet liable

However, in practice, there are not many civil sexual harassment allegations that have been supported by the courts, and there have been no cases in which the employer assumes responsibility.

The research group chaired by Jiang Yue has statistically analyzed a total of 147 civil litigation cases involving workplace sexual harassment concluded by courts in the past ten years, of which 9% are female accusers, and 51.7% of the accusers have a sibling relationship with the accused. But in the end, only 42 cases were finally found guilty of sexual harassment.

The determination of sexual harassment in the workplace faces difficulties in providing evidence. Jiang Yue pointed out that sexual harassment is sudden and immediate, and the place where it occurs is relatively closed, and it is difficult to have witness testimony and other evidence; In addition, the behavior of sexual harassment in the workplace is mainly physical behavior, unlike words, words, images, etc. that can leave certain written or electronic traces, physical behavior is secret and sudden, and it is not easy to fix evidence and collect evidence.

Referring to text prompts, this evidence will eventually come in handy, including victim statements; Electronic evidence, such as WeChat chat records, email records, SMS records, call records; audiovisual evidence, such as pictures, audio and video recordings, surveillance, etc.; witness testimony; Evidence; Third-party evidence, such as police records, investigation records, hotel videos, etc.

It can be seen that in the process of protecting the rights of sexually harassed employees, the support and cooperation of employers are crucial. "Employers are the first responsible for preventing sexual harassment in the workplace." Jiang Yue found that sexual harassment cases often involve both parties and employers, and in cases where the court ultimately finds that sexual harassment allegations are established, the employer often formulates clear rules and regulations to prevent sexual harassment. In 42 of the 37 cases in which the employer dismissed the employee who committed the sexual harassment, most of the employers provided the employee with audio and video recordings reflecting the incident, the fact sheet of the parties, internal management documents, and witness testimony from other employees.

However, the responsibility of the employer is far from enough. Jiang Yue pointed out that there are still many sexual harassment accusers who cannot obtain the support of the unit, especially the sexual harassment accusations of superiors, and the cost of the alleged behavior is very large. "It is possible that not only did it not work out, but it also lost its job and caused interpersonal tensions." In her view, victims could complain to trade unions, women's federations, etc. If the employer receives a complaint of inaction, the victim can also directly complain to the competent department of the company and report it to the labor inspection authority. Where infringement that causes damage to the public interest, complaints may also be made to the procuratorial organs, and where the procuratorial organs verify that they are true, they shall issue procuratorial recommendations to the relevant units, or may file a public interest lawsuit in accordance with law.

Wan Miaoyan, director of Sichuan Dingji Law Firm, who has participated in a number of workplace sexual harassment cases, told China Newsweek that workplace sexual harassment directly violates the right of workers to work in a decent and peaceful environment and the right to receive full remuneration for their work, so employers should also be liable for workplace sexual harassment.

She mentioned that in 2012, the State Council promulgated the Special Provisions on Labor Protection of Female Employees, which clearly stated that "in the workplace, employers shall prevent and stop sexual harassment of female employees", but in the Civil Code, it only stipulates the employer's power of prior prevention and post-investigation and handling, and there is no direct provision on what legal responsibility employers should bear if they fail to perform the prevention and suppression of sexual harassment, which has led some courts in judicial practice to believe that they are only declaratory clauses and cannot be used as a basis for adjudication.

In 2007, Sichuan Province promulgated the local regulation "Sichuan Provincial <Law on the Protection of Women's Rights and Interests> Implementation Measures", which stipulates that "if sexual harassment of women in the workplace causes damage, and the employer is at fault, it shall bear the corresponding compensation according to law". However, Wan Miaoyan pointed out that although this can give judicial judgments a legal basis, so far, there has not been a single case in which an employer has to be liable for compensation for the failure to prevent sexual harassment in the workplace.

"Therefore, this directly leads to the situation where sexual harassment in the workplace is in a situation where the state and the public are in place, but there are loopholes in the legal norms, employers verbally shout attention, and it is difficult for victims to defend their rights." She said.

China Newsweek, Issue 2023, 10

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