“Beijing +25” Retrospect and Prospect: The Establishment of Sexual Harassment Prevention Mechanism in the Workplace from the Perspective of Human Rights
LIU Xiaonan * & HUANG Zhouzheng **
Abstract: Sexual harassment is a form of gender discrimination and gender-based violence. It is a fundamental human right to be in a safe environment at work,free from violence and sexual harassment. The Beijing Platform for Action adopted by the Fourth United Nations World Conference on Women in 1995 strengthened the consensus that sexual harassment is violence against women. Sexual harassment in the workplace affects critical areas of concern in the Beijing Platform for Action,such as violence against women,women and economy, and human rights of women.This article reviews the progress and achievements of Chinese government in policy making, law improvement, administrative coordination and governance in the sexual harassment prevention in the workplace for the past 25 years, especially over the past five years.Through analyzing existing issues, this research puts forward measures and suggestions for improving the legal normative system, promoting the formation of joint efforts of different departments and enhancing the employer’s initiative. The implementation of the Beijing Platform for Action should be accelerated so as to push for the improvement of sexual harassment prevention mechanism in the workplace and to promote the protection of women’s rights and interests.
Keywords: workplace · sexual harassment · Beijing Platform for Action · sexual harassment prevention mechanism
I. Sexual Harassment in the Workplace from the Perspective of Human Rights
A. Sexual harassment is sexism and gender-based violence
Before the 1970s, there was no term worldwide to describe the phenomenon of sexual harassment. What we now consider sexual harassment has long existed in the past but it was not regulated by law. The main reason for this was the victims are mostly women, with men suffering similar experiences less frequently. In 1979, the US scholar Catherine McKinnon analyzed in her book Sexual Harassment of Working Women how women’s disadvantaged position at work was reinforced by the social meaning of female sexuality. In the past, gender discrimination in the United States was only considered when men and women were treated differently, but McKinnon argued that women in the workplace were sexually harassed because of their gender. Sexual harassment is not an accidental behavior in the workplace, nor is it just because of the libido of a male individual. Instead, it is a factor and mechanism that makes women permanently disadvantaged in the workplace, so it should be deemed sexism. McKinnon believed that if a stipulation caused social inequality and the victim came to harm because ofhis/her own gender, it was discriminatory. 1 Her research on sexual harassment laid a great influence on practice. The two types of sexual harassment described in her work (“quid pro quo sexual harassment” and “hostile work environment sexual harassment”) were later adopted by the Equal Employment Opportunity Commission (EEOC) as the basis for filing litigations in this area.
In international human rights law, sexual harassment is seen as a form of sexism and gender-based violence. Article 2 of the United Nations Declaration on the Elimination of Violence against Women deems sexual harassment as violence against women. 2 The Committee on the Elimination of Discrimination against Women (CEDAW) stated in its general recommendation No. 19 that discrimination against women as defined in Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women includes gender-based violence, that is, “violence that is directed against a woman because she is a woman or that affects women disproportionately.” Such violence constitutes a violation of human rights. If women are subjected to gender-based violence in the workplace, for example sexual harassment, their equal rights to employment will also be severely impaired. Sexual harassment includes unwelcome sexually motivated behaviors, whether in words or actions, such as physical contact and courtship actions, lascivious words, showing obscene books and paintings, and making sexual demands. If a woman has reasonable grounds to believe that her refusal to a behavior would be detrimental in her work, including recruitment or promotion, or unfriendly work environment, the behavior is discriminatory. 3 “Gender-based violence against women is a fundamental social, political, and economic means to solidify women’s subordination to men and their stereotyped roles.”4
Sexual harassment has also become illegal and banned worldwide and regarded as a type of sex discrimination. In the legislation of various countries, it is generally defined as unwelcome sexual behaviors directly imposed on the victim, or acts that create intimidating, hostile, and humiliating environments, and infringe on the dignity of others. It is divided into quid pro quo sexual harassment and hostile environmental sexual harassment. “The emergence of sexual harassment is not just a personal tort of the harasser, but more importantly, it reveals the power relation of gender inequality and unrestricted abuse of power in the workplace. Its elimination requires not just the punishment of the harasser personally, but more changes in organizational culture and unequal gender power structure. Only in this way can the occurrence of sexual harassment be effectively prevented and curbed.” 5
B. Concerns about sexual harassment in the Platform for Action
In 1995, the Fourth World Conference on Women was held in Beijing. The Beijing Declaration and the Beijing Platform for Action (hereinafter referred to as Platform for Action) adopted at the conference became the programmatic documents for promoting gender equality in China and the rest of the world. On the occasion of the 25 th anniversary of the Fourth World Conference on Women, the process of “Beijing +25” to commemorate the event was launched. In December 2019, the Asia-Pacific Ministerial Conference on the “Beijing+25 Review” was held in Bangkok. The meeting identified three major achievements in the Asia-Pacific region, including the adop-tion of a series of laws, regulations, action plans and policies to promote women’s empowerment, improvement in women’s economic empowerment, and improvement in their rights to political participation and decision-making. It also pointed out three main challenges: There were still obstacles to women’s participation in the economy; the gender norms and stereotypes that hinder women’s development and empowerment remained; and the capacity for promoting gender equality was still lacking. 6
The Beijing Declaration reaffirms “women’s rights are human rights” (Article 14) and it proposes to“prevent and eliminate all forms of discrimination against women and girls” (Article 29) and “promote and protecte all human rights of women and girls” (Article 31). 7 The Platform for Action calls on governments, the international community and civil society to take strategic actions in critical areas of concern 8 faced by women such as poverty, education, economy and violence. Sexual harassment, as a serious phenomenon of sexism directed at women has also become one of the key issues of common concern. Sexual harassment in the workplace, as violence against women, not only violates women’s human rights and fundamental freedom, but also leads to their disadvantaged status in social and economic structure, hindering their development and empowerment.
First, violence against women undermines and hinders or offsets the human rights and fundamental freedom enjoyed by women. The term “violence against women” means any act of gender-based violence in public or private life. Physical, sexual and psychological violence occurring within the general community, including sexual harassment at work, is also violence against women (Para. 113 of the Platform for Action). Sexual harassment, as a widespread violence directed at women, violates women’s dignity and value. To build a mechanism to curb violence against women, the Platform for Action specifically points out that the absence of adequate gender-dis-
aggregated data and statistics on the incidence of violence makes the elaboration of programmes and monitoring of changes difficult. For example, the lack of or inadequate documentation and research on sexual harassment in the workplace impede efforts to design specific intervention strategies. It is recommended that comprehensive
measures be taken to prevent and eliminate violence against women. Women and men can be mobilized to overcome gender-based violence and effective public measures can be taken to address both the causes and the consequences of violence. (Para. 120) It is recommended that programmes and procedures be developed to eliminate sexual harassment and other forms of violence against women in all educational institutions, workplaces and elsewhere. (Para. 126)
Second, sexual harassment in the workplace also leads to women’s disadvantage in social and economic structures. The Platform for Action states that “the experience of sexual harassment is an affront to a worker’s dignity and prevents women from making a contribution commensurate with their abilities.” (Para. 161) Sexual harassment has become an obstacle for women to realize their full potential. In order to promote their economic rights and economic independence, as well as their equal opportunity of access to resources, employment and other social and economic fields, legislation and administrative reforms should be undertaken to prohibit gender-based discrimination in the labor market and promote gender-sensitive policies and measures. Laws should be promulgated and implemented to prohibit sexual harassment and other forms of harassment in the workplace, providing legal protection for victims of sexual harassment. In addition, policies against sexual harassment in the workplace shall be formulated and mechanisms shall be established to review and monitor their
implementation. (Para. 165)
Because sexual harassment affects women’s human rights and fundamental freedom, causes their disadvantage in the socio-economic structure, and delays the process of gender equality, the Platform for Action proposes that sexual harassment should be eliminated. The internal dynamics of national institutions and organizations should be changed, and reforms in eliminate values, behaviors, rules and procedures that are inimical to the advancement of women shall be promoted. (Para. 290)
II. Development of Sexual Harassment Prevention in the Workplace in China
Equality between men and women is the basic principle established by the Constitution of China. In the 25 years since the Fourth World Conference on Women, China has implemented the principle of gender equality, strengthened macro-policy guidance to eliminate violence against women, improved laws and regulations pro-hibiting sexual harassment, and promoted the participation of multiple parties in the collaborative management of sexual harassment. In particular, over the past five years, new progress has been made in the prevention of sexual harassment in the workplace.
A. Strengthen the macro-policy guidance for sexual harassment prevention in the workplace
In 2015, at the Global Women’s Summit jointly hosted by China and UN Women, President Xi Jinping systematically expounded China’s position and views on women’s causes, stressing that “[We will] actively protect women’s rights and interests. Women’s rights and interests are basic human rights. We will incorporate the system to guarantee women’s rights and interests into laws and regulations, elevate it to national will, and internalize it into the norms of social behavior,” “eliminate discrimination and prejudice against women,” and “eliminate all forms of violence against women.” 9 In September 2016, Premier Li Keqiang chaired the symposium of “The Sustainable Development Goals: A Universal Push to Transform Our World — China’s Perspective” at the UN headquarters in New York, and announced the release of China’s National Plan on Implementation of the 2030 Agenda for Sustainable Development. 10 This national plan sets out the goal of “preventing and curbing all forms of violence against women and girls.” 11
As early as 1995, the Chinese government proposed “taking equality between men and women as a basic national policy to promote social development in China.” and formulated the China National Program for Women’s Development (1995-2000) 12 , according to its specific domestic conditions. In the program, China proposed 11 goals to be achieved by women in politics, employment, labor protection, education, and personal rights, as well as the measures that must be taken to achieve them. China National Program for Women’s Development (1995-2000) proposes that in employment and labor protection, “female workers’ labor protection should be included in the work safety leadership responsibility system, and made one of the important elements for evaluating the performance of the person in charge of the enterprise. The publicity and education of laws and policies on labor protection shall be strengthened for female employees, to raise their self-protection awareness.” It also recommends providing legal protection for women, protecting women’s personal rights and all legal property rights, and promptly investigating and handling civil cases involving infringement of women’s rights and interests. In addition,stringent measures should be taken to crack down on criminal activities such as insulting women and to safeguard women’s personal safety and dignity. Women’s right to legal complaints and appeal shall be protected. In 2001, in response to the new situation and new tasks of reform and opening up and modernization, China promulgated the China National Program for Women’s Development (2001-2010) 13 , setting a higher goal for women’s development and adopting a faster pace for ots realization. The program identifies six priority development areas, including women and the economy, women’s participation in decision-making and management, women and education, women and health, women and law, women and the environment, with the theme of promoting women’s advancement throughout. It also proposes to further implement the labor protection policy for female employees, provide them with necessary work and labor conditions, and solve their special difficulties in labor and work due to physiological characteristics; strengthen the publicity, education and training of special laws and regulations on labor protection for female workers, raise employers’ awareness of the legal system and safe production, and strengthen the self-protection awareness of female employees. In terms of the law, it proposes to “protect the personal rights of women and prohibit all forms of violence against women.”
The first two programs did not explicitly raise the issue of “sexual harassment” facing women, but they ensured the protection of women in employment and work from the perspectives of work safety and labor protection. The China National Program for Women’s Development (2001-2010) put forward the issue of improving legislation at the macroscopic level and guaranteeing the rights granted to women by laws and regulations, providing policy guarantees for the realization of women’s legitimate rights and interests. In 2011, the China National Program for Women’s Development (2011-2020) focused on more specific legal protection needs of women, and put forward practical strategies and measures. It specifically highlighted sexual harassment against women in the workplace. Therefore, it clearly raised the issue of sexual harassment, proposing that “Sexual harassment against women should be effectively prevented and stopped. Laws and working mechanisms to prevent and stop sexual ha-rassment shall be established, and efforts shall be strengthened to combat acts of sexual harassment. Employers should take effective measures to prevent sexual harassment in the workplace.” For instances of women seeking protection, it emphasized that “for cases involving women’s personal privacy, measures shall be taken during litigation to protect the victimized woman from secondary harm.” 14
Compared to its two predecessors 15 , the National Human Rights Action Plan (2016-2020) of China also clearly requested “preventing and curbing sexual harassment against women,” 16 providing strong policy guidance for preventing sexual harassment in the workplace.
B. Improve the legal and regulatory system prohibiting sexual harassment in the workplace
China has made marked progress in legislation against sexual harassment in the workplace, and promoted long-term central and local legislation to prevent sexual harassment in the workplace. The achievements are mainly manifested as follows:At the level of the central government, Civil Code (Draft), the Law on the Protection of Women’s Rights and Interests, the Special Provisions on the Protection of Female Workers and other laws and regulations have been improved, providing the legal basis for preventing and stopping sexual harassment in the workplace. At the local level, various provinces and municipalities have successively revised the implementation measures for the law on the protection of women’s rights and interests and other supporting regulations, or issued local gender equality promotion regulations and special regulations on the protection of female workers, and added content on the prohibition of sexual harassment.
1. Improve the legal basis for preventing sexual harassment in the workplace
At the central legislative level, the Law on the Protection of Women’s Rights and Interests amended on the occasion of the 10 th anniversary of the Fourth World Congress on Women held in 2005, proposed as a tribute to “Beijing +10”, put forward the prohibition of sexual harassment against women for the first time and clarified the corresponding rights of the victims and legal liabilities of offenders. Article 40 stipulates that “Sexual harassment against women is banned. The victims shall be entitled to complain to the entity or the relevant organs.” Article 58 stipulates that “If anyone commits sexual harassment or family violence against a woman to violate this Law, and if his act constitutes a violation of the public security administration, the victim may require the public security organ to give the violator an administrative punishment or may initiate a civil action in the people’s court.” Article 11 of the Special Provisions on Labor Protection for Female Workers promulgated by the State Council in 2012 states that “Employers shall prevent and stop sexual harassment towards female employees at the work place.” Compared with the Law on the Protection of Women’s Rights and Interests and the Special Provisions on the Labor Protection for Female Workers which offered legal protection to women victimized by sexual harassment- from the perspective of protecting their rights and interests and providing relief, the Civil Code (Draft) puts “sexual harassment” in the section of personality rights, emphasizing the infringement of sexual harassment on women’s rights and adding more specific provisions on preventing and stopping sexual harassment. The Civil Code (Draft) stipulates civil liability and employer’s obligations. Article 1010 of the draft stipulates that “For sexual harassment in speech, behavior and other formsin violation of the will of others, the victim has the right to request the perpetrator to bear civil liability according to law. Institutions, enterprises, schools and other units should take reasonable precautions against sexual harassment, accept complaints regarding it, investigate and handle instances of sexual harassment, while preventing and curbing the sexual harassment by taking advantage of power or affiliation.” The provisions of Civil Code (Draft) on sexual harassment constituteprogress, mainly seen as follows. First, the regulation on sexual harassment is no longer limited to the workplace and gender. It breaks the provisions of the Law on the Protection of Women’s Rights and Interests and the Special Provisions on the Labor Protection for Female Workers concerning protecting women who have suffered sexual harassment, making it possible for men to be recognized as victims of sexual harassment in the legal sense. Secondly, it clarifies speech, behavior and other forms of sexual harassment, and expands the traditional concept of sexual harassment necessitating physical contact, making it possible to regulate sexual harassment through text messages and emails. Third,it stipulates the measures to be adopted by State organs, enterprises, schools and other units to prevent sexual harassment, actually expanding the occasions where sexual harassment is prohibited. So, it will have a positive effect on prohibiting various types of sexual harassment in the workplace and even on campus. Fourth, the provisions on “sexual harassment by taking advantage of power and affiliation” actually cover the identification of “quid pro quo sexual harassment.” That is to say, the fact that victims receive substantial benefits or become disadvantaged at work due to sexual harassment does not affect the conviction of sexual harassment. This provision is actually consistent with the general situation of sexual harassment in reality, providing a broader legal basis for the identification of sexual harassment in the workplace. By stipulating sexual harassment in the section of personality rights, the Civil Code (Draft) can address the dilemma of filing sexual harassment cases to a certain extent, and encourage victims to stand up for their rights. It is of positive significance for improving and promulgating relevant legislation and policies, promoting the transformation of traditional ideas, and improving the concept of gender equality. 17
2. Promote local supporting implementation of laws and regulations
Locally, after the revision of the Law on Protection of Women’s Rights and Interest in 2005, all provinces, municipalities and autonomous regions successively revised their implementation measures for the law. The 31 provinces (municipalities and autonomous regions) added the prohibition of sexual harassment; among them, 29 involved sexual harassment in the workplace. At least 13 provinces (municipalities and autonomous regions) defined sexual harassment. For example, Beijing, Guangdong Province, and Liaoning Province have specific definitions of sexual harassment, including those acts going against/violating women’s will, in the form of sexual content or sex-related behaviors, languages, texts, pictures, images, electronic information, gestures and other forms. In addition, at least 19 provinces, municipalities, and autonomous regions stipulate the responsibilities of employers. A woman who has been sexually harassed is entitled to complain to the unit of the offender and the public security organ.If the complaint is made to the offender’s unit, the unit should intervene and stop the sexual harassment in time. If the complaint is lodged with the public security organ, the public security organ shall accept it in time and handle it according to law. The Measures of Sichuan Province for Implementing the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests amended in 2007 stipulates that “If sexual harassment against women in the workplace causes physical, mental, and reputation damage to the victim, the unit or employer, if at fault, will be held accountable for corresponding civil compensation liabilities in accordance with the law.” 18 This ground-breaking legislation helps to alert and urge employers to fulfill their obligations, laying the foundation for subsequent national legislation to confirm their obligations to prevent and stop sexual harassment.
In addition, in recent years, some provinces and municipalities have made amendments to their implementation measures for the Law on Protection of Women’s Rights and Interests in the form of local regulations on women’s rights protection. For example, the Regulations of Tianjin Municipality on the Protection of Women’s Rights and Interests emphasizes in Article 40 that “the unit and department shall accept and handle complaints of sexual harassment.” 19 The Regulations of Hebei Province on the Protection of Women’s Rights and Interests stipulates in Article 21 that “State organs, social associations, enterprises, institutions and other organizations shall take measures to prevent and stop sexual harassment against female employees; victimized female employees shall be entitled to report to their units, public security organs and relevant departments, and the accepting units and departments shall handle the complaint; where the state organs, social associations and their staff refuse to deal with sexual harassment upon receiving the report, the directly responsible principal and other directly responsible persons shall be given administrative sanctions according to the law; criminal liability shall be investigated in accordance with law where a crime is committed.” 20 The Regulations of Jiangsu Province on the Protection of Women’s Rights and Interests stipulate7 in Article 43 that “Sexual harassment against women in the form of sexual content or sex-related languages, texts, images, sounds, and physical movements is prohibited. Schools, employers and public management units shall prevent and stop sexual harassment against women through the establishment of an appropriate environment and necessary investigation and complaint systems. Victimized women have the right to complain to schools, employers, public management units and relevant departments, or file litigation with the people’s court.” 21 The Regulations of Ningxia Hui Autonomous Region on the Protection of Women’s Rights and Interests, revised in 2019, have an additional provision on sexual harassment in the personal rights section, prohibiting sexual harassment against women in sexually related languages, words, images, and physical movements, and requiring employers to take effective measures to prevent and stop staff or other personnel from using their powers, affiliations and other convenient conditions to sexually harass women. 22
After the State Council promulgated and implemented the Special Provisions on Labor Protection for Female Employees in 2012, some provincial governments began to formulate or revise specific implementation measures. By the end of February 2020, the Standing Committee of People’s Congress of two provinces 23 and 12 provincial governments had issued relevant rules and regulations. 24 In addition,some larger cities also issued government regulations to specify the provisions of Special Provisions on Labor Protection for Female Workers.
The Regulations on Labor Protection of Female Workers of Shanxi Province 25 and Fujian Province 26 , formulated by the standing committees of their people’s congresses, are local bylaws that rank higher than provincial-government regulations. The regulations of Shanxi Province and the government regulations of Hebei Province 27 make it clear that the prevention and suppression of sexual harassment against female employees is one of the obligations to be fulfilled by employers. The government regulations of Anhui Province, 28 Guangdong Province 29 , Fujian Province, Zhejiang Province 30 , and Shaanxi Province 31 emphasize that employers should draw on their own characteristics to take measures to prevent and stop sexual harassment, requesting them to handle complaints in a timely manner and protect the individual privacy of female employees. The government regulations of Jiangxi Province 32 only require the employer to report to the relevant authorities in case of sexual harassment against its female employees, without requesting it to handle any complaints. It is worth noting that the Measures of Ningxia Hui Autonomous Region for Labor Protection of Female Workers do not involve sexual harassment. The other provinces have not yet promulgated regulations in line with the Special Provisions on Labor Protection for Female Workers. 33
The Special Regulations of Hunan Province on Labor Protection of Female Workers, 34 adopted in November 2019, stipulate in Article 16 that “In the workplace, the employer shall prevent and stop sexual harassment against female workers; if the female worker reports sexual harassment, it shall promptly and properly handle or transfer the case to the relevant authorities to be handled. If the case is reported to the public security organ or a civil lawsuit is filed with the people’s court, the employer shall provide support; the relevant authority, in dealing with incidents of sexual harassment against female workers, shall protect the personal privacy of female workers according to the law.”
The Regulations of Shenzhen Special Economic Zone on Promotion of Gender Equality, adopted by the Standing Committee of the Fifth People’s Congress of Shenzhen on June 28, 2012, is the first local special legislation of China to promote gender equality. It stipulates the establishment of a working organization for promoting gender equality (Article 7), and clarifies its work objectives and responsibilities; takes sexual harassment prevention in the workplace as one of its important work functions and stipulates that the municipal organizations promoting gender equality shall regularly publish guidelines for the fight against sexual harassment behaviors to instruct state organs, enterprises, institutions, social groups, and other organizations in preventing and stopping sexual harassment (Article 22). It also stipulates the employer’s obligations to prevent sexual harassment and offers a definition of quid pro quo sexual harassment, that is, explicit or implied use of sexual content or sex-related behaviors, languages, texts, images, electronic information and other forms as quid pro quo for recruitment, promotion, remuneration, rewards and other benefits, by violating others’ will and drawing on position, employment or other convenient conditions (Article 23); makes specific provisions on relief channels and legal responsibilities (Article 29). It has not only made pioneering attempts to enhance the operability of anti-sexual harassment, but also changed the legislation model of single-sex protection to protect all victims of sexual harassment regardless of gender. 35
C. Multi-party participation in the construction of sexual harassment prevention mechanism in the workplace
1. Develop specific plans to prevent and stop sexual harassment in the workplace
The All-China Federation of Trade Unions and the All-China Women’s Federation have long set great store by the labor protection of female employees and explored the establishment of mechanisms for corporate gender equality. On the eve of Women’s Day in 2019, the All-China Federation of Trade Unions issued the Guidebook on Promoting Gender Equality in the Workplace, which takes “preventing and suppressing workplace violence and sexual harassment” as an important link to promote gender equality in the workplace. In the guideline, the regulations and the definition of sexual harassment are systematically interpreted, and recommendations are made for establishing reasonable prevention, complaint, and handling systems, so as to prevent and stop workplace violence and sexual harassment. 36 In March 2020, the Guidebook on Eliminating Sexual Harassment in the Workplace issued by the All-China Federation of Trade Unions clearly defines sexual harassment and sexual harassment in the workplace, providing a basis for identifying sexual harassment in practice. Sexual harassment includes three key elements, namely, unwelcome, sexually related, and reasonably anticipated to be offensive, insulting or threatening. “Sexual harassment in the workplace” is related to, caused by or during work. In addition, the Guidebook on Eliminating Sexual Harassment in the Workplace provides detailed program guidance on the participation of employers, employees, and trade unions in promoting the prevention of sexual harassment in the workplace. Among them, employers are instructed to prevent and curb sexual harassment in the workplace through six basic links, including program establishment, system improvement, and publicity and education, as well as the three curbing links of acceptance, investigation and handling of complaints. Trade unions at all levels should strengthen participation at the source, and actively promote and participate in the formulation of laws and policies, the investigation of sexual harassment in the workplace, and supervision of enterprises in establishing institutional mechanisms to prevent and stop sexual harassment; participate in and supervise the implementation of enterprise mechanisms; support victims of sexual harassment at work for rights protection and offer professional legal guidance to employees and witnesses to handle possible sexual harassment. 37 The All China Women’s Federation made legislative proposals to promote legislation against sexual harassment, and supported women’s rights protection in accordance with the law through the establishment of the “Special Legal Aid Fund for Protection of Women’s Rights” and women’s rights protection hotline. In 2019, the Shenzhen Women’s Federation began to explore the establishment of a working mechanism for anti-sexual harassment, planning to release the Guide of Shenzhen for Anti-Sexual Harassment,and launching anti-sexual harassment pilots in colleges and universities. 38
2. Strengthen judicial protection for sexual harassment victims
Although the Law on the Protection of Women’s Rights and Interests stipulates that women victimized by sexual harassment “have the right to complain to the unit and relevant authorities,” and that they can also file civil suits with the people’s court in accordance with the law. However, “sexual harassment” is not included in the scope of cases in the Litigation Law, nor is there any cause for litigation. As a result, it is difficult for such cases to be accepted by the court. 39 To address this dilemma, the Supreme People’s Court added the new cause of action “liability dispute over sexual harassment damages” in the Regulation on Cause of Action for Civil Cases in December 2018. 40 From then on, victims of sexual harassment have been entitled to file a lawsuit, making it convenient for sexual harassment victims to seek judicial protection. Later, the case of a female social worker accusing sexual harassment by a man surnamed Liu became the first case that was accepted on the basis of “liability dispute over sex harassment damages.” The case was won by the victim. On June 11, 2019, the court ruled that the defendant’s actions “constitute sexual harassment of the plaintiff,” and ruled that the defendant apologized to the plaintiff in person. In the verdict, sexual harassment was defined as “sexually suggestive speech or actions that are made against the will of the other party and that bring physical and mental harm to the other party.” 41 Although the judge did not support the plaintiff’s claim for the employer’s joint liability for compensation and suggested the plaintiff file a separate litigation based on labor relations, the definition of sexual harassment would undoubtedly provide reference for hearing sexual harassment cases in the future.
III. Problems and Challenges
A. The law and regulation system for sexual harassment prevention in the workplace is to be improved
First of all, the current laws and regulations do not specify the concept and classification of sexual harassment, with the provisions distributed in the Civil Code (Draft), Law on the Protection of Women’s Rights and Interests and Special Provisions on Labor Protection for Female Workers. As a result, the current provisions on prohibiting sexual harassment are lacking in standardization, systematicality and enforceability. The provisions of the Civil Code (Draft) to prevent sexual harassment emphasize to “prevent and stop the use of power, affiliation, etc. to implement sexual harassment,” omitting common hostile environmental sexual harassment. The unclear concept of sexual harassment may lead to concurrence with the “obscene”behavior 42 in the Law on Penalties for Administration of Public Security and the “crime of coercive obscenity and humiliation” 43 in the Criminal Law, making it difficult for the normative provisions on sexual harassment to take full effect. Such provisions in principle may weaken public awareness of sexual harassment, hamper the formation of a good concept of prohibiting sexual harassment, and lead to problems that are difficult to identify in future judicial practices, thereby making it impossible for victims of sexual harassment to obtain judicial relief.
Second, the laws and regulations are not specific about employers’ obligations to prevent and stop sexual harassment. Special Provisions on Labor Protection for Female Employees stipulates that employers should prevent and stop sexual harassment against female employees in the workplace, but fails to specifically stipulate the measures they should take. The provisions in the Civil Code (Draft) on employers’ obligations to take reasonable preventive measures, accept complaints, investigate and handle sexual harassment are still too sketchy, and the corresponding supporting laws lack clear requirements for prevention, acceptance, and investigation and disposal.
Third, there is currently no provision in China to specifically address the liability of employers for sexual harassment in the workplace. The Law on the Protection of Women’s Rights and Interests, the Special Provisions on Labor Protection for Female Workers, and the Civil Code (Draft) have clarified and emphasized the measures that employers should take to prevent sexual harassment, but they haven’t specified the responsibilities of employers in failure to adopt the measures or in cases of sexual harassment. The stipulations on employers’ responsibilities in Article 34 of the Tort Liability Law and Article 8 and 9 of the Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in Trying Cases Involving Compensation for Personal Damage are mainly directed at circumstances of personal damage to their employees in “executing work tasks” or “performing duties, conducting employment activities.” This is obviously different from employers’ responsibility in cases of sexual harassment in the workplace. The reasons are twofold. First, it is very difficult to interpret the sexual harassment behaviors conducted by employees against other employees as performing work tasks; second, the victims can be subject to sexual harassment from employees of the unit, as well as customers or employees of other units. In such cases, employers’ liability in the above regulations does not apply, which makes it difficult to pursue civil liability for employers who fail to prevent and control in cases of sexual harassment. Some provinces in China have made helpful attempts to address the issue of employers’ liability for sexual harassment in the workplace. For example, Fujian Province stipulates that “Employers shall take measures to prevent sexual harassment in the workplace, and shall handle sexual harassment in a timely manner when it occurs,” and “shall be held accountable in cases of violating the regulations in Paragraph 3 of Article 15 in accordance with relevant regulations.” 44 Sichuan Province stipulates that “The employer is at fault for sexual harassment in the workplace that causes physical, mental, and reputation damages to victimized women shall bear the corresponding civil compensation liability according to law.” 45 However, the above two provisions are local regulations, less effective than laws, and subject to geographical restrictions in application.
B. The overall coordination mechanism for preventing sexual harassment in the workplace needs to be strengthened
The sexual harassment prevention in the workplace is faced with the problems of ambiguous subjects of the parties and insufficient coordination. First of all, the overall requirements of sexual harassment prevention mechanism in the workplace are not clear. The National Working Committee on Women and Children, All-China Women’s Federation, the labor union, the labor security department, and other administrative departments prevent and control sexual harassment from different perspectives, including policy guidance, judicial protection, administrative protection, and labor inspection. There is a lack of programmatic guiding philosophy, fundamental principles and work objectives. The existing prevention, acceptance and investigation measures that shall be taken by employers in accordance with the law lack supervision of the implementing subject. As a result, implementation of laws and policies to prevent sexual harassment is inadequate.
Second, the differences in the understanding of, working methods for, and institutional functions of various departments for preventing sexual harassment have led to insufficient coordination and cooperation among various departments in reality. At present, women’s federations and labor unions have conducted a lot of basic research in exploring the establishment of anti-sexual harassment work mechanisms, which also requires closer collaboration and cooperation of government departments.
C. Insufficient employer motivation in the sexual harassment prevention in the workplace
In practice, employers have obviously done little in preventing sexual harassment in the workplace. For sexual harassment in the workplace, employers have the natural “first place” advantage to prevent and stop sexual harassment because of the workplace they provide and the internal power relations they possess. For now, the employers’ “first place”advantage and obligations have not been brought into play and fulfilled.
First of all, the employer lacks gender awareness and the awareness of protecting women’s rights and interests. This is an internal factor making employers unwilling to promote the prevention of sexual harassment. Due to the lack of gender awareness, they adhere to the inertial thinking of maximizing corporate profits in production and operation, 46 ignoring the gender equality policy at work. In view of the fact that handling sexual harassment incidents will disrupt internal order, cause chaos in management, and affect the corporate image, some employers choose to conceal sexual harassment incidents in the workplace, neglecting the fact that strengthened manage-ment and prevention can help improve work efficiency. Secondly, there are differences in the institutional basis for employers to implement sexual harassment prevention policies, and it is difficult in practice to construct prevention mechanisms for sexual harassment in the workplace. Compared with the majority of public institutions, state organs and state-owned enterprises that have the overall system foundation of sufficient and sound administrative resources and professional groups, a great number of small and medium-sized enterprises are faced with the problems of poor system base and shortage of resources for preventing sexual harassment. 47 Finally, the lack of supervision and incentives for employers in laws and policies has led to insufficient external motivation to fulfill their obligations to prevent and control sexual harassment.
III. Countermeasures and Suggestions
A. Improve the law and regulation system for sexual harassment prevention in the workplace
In response to the violence against women, including sexual harassment, the Platform for Action clearly recommends that governments should promote positive gender-aware policies and programs, adopt and implement the legislation on eliminating and preventing violence against women, and provide victimized women with channels to appeal to the judiciary and to obtain fair and effective remedies. 48
As far as the current legal system in China for preventing and controlling sexual harassment in the workplace is concerned, the legislative provisions on the definition, identification and legal responsibility of sexual harassment should be improved, to provide a sufficient legal basis for preventing and stopping sexual harassment. The concept, classification, prevention obligations, legal liability (including personal liability and employer liability) of sexual harassment should be improved in the workplace according to Chapter 4 Labor and Social Security Rights of the Law on Protection of Women’s Rights and Interests. Sexual harassment should be clearly divided into quid pro quo sexual harassment and hostile work environment sexual harassment in legislation; sexual harassment should be clarified as unwelcome sexually related words and behaviors, a form of sexism, and gender-based violence. The standard for identifying sexual harassment is that a reasonable person can expect a behavior to make a person feel offended, insulted, or threatened. 49
The employers’ obligations in preventing sexual harassment should be clarified in the law, which shall require them to introduce measures and mechanisms towards this end. The obligations shall be divided into two aspects: prevention beforehand and relief afterwards. The former shall mainly include formulating and publicizing pre-vention measures for sexual harassment and complaint handling regulations, and developing long-term open publicity and training in sexual harassment prevention. The latter mainly includes the establishment of a special agency or designation of special personnel to take charge of complaints and handle sexual harassment. When any sexual harassment behavior is detected, corrective and remedial measures should be taken; the complaints of sexual harassment should be kept confidential, and the complainant protected from retaliation.
The provisions on legal liability should be improved. It is recommended that specific provisions be made setting out employers’ responsibility in prevention, handling and burden of proof, and that favorable links be developed with civil and administrative liability stipulated in current laws, to specify punishments for employers by the competent authority. First of all, the position of the employer liability mechanism shall be legally highlighted in institutional construction for preventing sexual harassment in the workplace. As mentioned earlier, employers have direct control over the workplace and working environment, and have the ability to take two-pronged measures of prevention in advance and correction afterwards to prevent sexual harassment in the workplace. The relevant legislation of China should have clear provisions to specify employers’ obligations and legal responsibilities in fighting sexual harassment. Second, the different forms of employer liability should be distinguished in the event of sexual harassment in different circumstances, according to the identity of the perpetrator, and the degree of impact on the working conditions of the victim. This differentiation is undoubtedly more reasonable than requiring employers to take responsibility in general. Third, the employer responsibility mechanism plays the role of accountability as well as education and guidance. Overseas systems have shown that under certain circumstances, the internal anti-sexual harassment mechanism established by the employer can be a ground for mitigating or exempting his liability. This regulation undoubtedly encourages employers to take proactive measures against sexual harassment. In designing relevant systems, China should also focus on encouraging and guiding employers to actively establish effective internal mechanisms for fighting sexual harassment.
B. Promote the joint efforts to prevent sexual harassment in the workplace
The Platform for Action proposes that governments, employers, trade unions and other relevant agencies should formulate programs and procedures for eliminating sexual harassment as appropriate. 50 In the prevention and punishment of sexual harassment in the workplace, the coordination of various government departments and
women’s federations, labor unions, labor security and other departments should be strengthened. Policy guidance documents should be issued to determine the overall requirements, guidelines, basic principles and work objectives of sexual harassment prevention in the workplace; and the roles and divisions of labor of various departments should be clarified in the construction and improvement of mechanisms for sexual harassment prevention. It is recommended that the government should advocate sexual harassment prevention, introduce corresponding working methods, and set up a special group for sexual harassment prevention. The women’s federations shall cooperate with the trade union organizations to promote the implementation of specific policies, and promote the joint participation of other government departments in mechanism construction, program design, publicity and education, rights protection and other links to form joint efforts.
Efforts shall be made to promote the participation of women’s federations, trade unions and other organizations in national and local legislation, and promote the introduction of laws, and the formulation of regulations and policies to prevent and stop sexual harassment in the workplace. It is recommended that the All-China Women’s Federation and the National Federation of Trade Unions should leverage their political, organizational and professional advantages, to jointly issue a work manual to prevent and stop sexual harassment in the workplace. The specific legal obligations and responsibilities of employers on sexual harassment prevention shall be clarified. The women’s federations and trade union organizations shall strengthen their cooperation with industrial, commercial, human resources and social security, labor security supervision departments. Education and publicity activities on sexual harassment prevention shall be launched. Employers shall be prompted to formulate and implement the rules and regulations on preventing sexual harassment. The sexual harassment prevention mechanism in the workplace shall be established and improved.
The women’s federations, labor unions, labor security, and government departments shall strengthen support for protecting the rights of victims of sexual harassment in the workplace. They shall make complaint channels readily accessible, to provide professional consulting services to employees on laws and sexual harassment; coordinate and participate in the investigation and processing of sexual harassment complaints; provide legal assistance and assist with evidence collection, and urge employers to establish special investigation teams when necessary; support and assist victims in using legal means to defend their rights; provide psychological counseling to victims when necessary.
C. Give full play to the employers initiative in sexual harassment prevention
The Platform for Action specifically emphasizes the importance of comprehensive measures taken by the business community in preventing and eliminating violence against women. 51 During sexual harassment prevention in the workplace, it is necessary to play the role of employers from the aspects of corporate gender awareness, actual prevention capabilities, and external supervision and incentives.
Incorporating gender awareness into corporate decision-making and strategic considerations and promoting women’s survival and development are important measures for companies to fulfill their social responsibilities. Establishment of corporate social responsibility standards based on gender equality can not only enhance the ef-
ficiency, cohesion and core competitiveness of enterprises, and improve management, but also enhance employees’ sense of gain, honor and belonging, help gather talents and establish harmonious labor relations. 52 Industrial and corporate social responsibility standards should be published under the guidance of laws and policies to promote the role of gender awareness in corporate decision-making. Relevant institutions shall be organized to train the management personnel of the employer through on-site training or remote instructions. The improvement of gender equality awareness and capability among the managers is the prerequisite for the enterprise to assume social responsibility and promote the prevention of sexual harassment. 53
In building the employers’ actual capacity in prevention and control, the government shall play a leading role. It is recommended that the government organize women’s federations, trade unions and other institutions to issue a program of sexual harassment prevention in the workplace for the employers. Accordingly, women’s federations and trade unions at all levels shall offer guidance on developing corporate mechanisms of sexual harassment prevention in the workplace. Written guidance on sexual harassment prevention policies shall be provided. For small and medium-sized enterprises, assistance shall be offered in formulating regulations on sexual harassment prevention.Investigations within employers shall be properly streamlined. After employers receive complaints about sexual harassment or conduct preliminary factual investigations, labor supervision and security department or trade unions shall conduct investigations as external consultants.
The guidance, supervision and evaluation mechanism of relevant departments shall be improved for sexual harassment prevention of employers. The supervisory role of trade unions and women’s federations should be clarified to assist employers in implementing the monitoring system, including monitoring indicators, monitoring time, and improvement measures. According to the monitoring standards, evaluation and feedback should be given in time to identify problems and analyze the reasons for prompt solution. The trade unions and women’s federations should also enhance summarization, archiving and publicity, and education and training; join the employers in handling complaints or reports of sexual harassment in the workplace, and promptly propose correction of any existing problems; cooperate with other relevant departments to launch special activities to prevent sexual harassment, evaluate the employers’ development of sexual harassment prevention mechanisms, create a positive list, publish the list of enterprises actively engaged in sexual harassment prevention to expand social demonstration, and exercise admonition, criticism, supervision for rectification for employers covering up for the perpetrator and with poor performance in prevention.
(Translated by QIAN Chuijun)
* LIU Xiaonan ( 刘小楠 ), Professor at China University of Political Science and Law, Doctor of laws.
** HUANG Zhouzheng ( 黄周正 ), Ph.D Candidate of the Institute for Human Rights at China University of Political Science and Law. The article was supported by the “Research on the Construction of Sexual Harassment Prevention Mechanism under the Vision of Human Rights and Rule of Law” (Project No. 1811D620004), a key project of the Key Research Base for Humanities and Social Sciences under the Ministry of Education in 2018.
1. Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979), 174.
2. Violence against women in Article 2 of the Declaration on the Elimination of Violence against Women shall be understood as including but not limited to the following: (a) Physical, mental and sexual violence in the family, including beating, familialsexual abuse of girls, dowry-induced violence, spousal rape, clitoral mutilation and other traditional practices harmful to women, non-spouse violence and exploitation-related violence; (b) physical, mental and sexual violence occurrence in society, including rape, sexual abuse, sexual harassment and intimidation in the workplace, educational institutions and other places, woman trafficking and forced prostitution; (c) physical, mental and sexual violence committed or condoned by the state behavior, no matter where it occurs.
3. Committee on the Elimination of Discrimination against Women, General Recommendation No. 19: Violence against women, 1992, para. 17 and 18.
4. Committee on the Elimination of Discrimination against Women,General Recommendation No. 35: gender-based violence against women, updating general recommendation No. 19, 2017, para. 10.
5. He Xia, “Right to Work”, in A Course in Social Gender and Human Rights, ed. Liu Xiaonan (Beijing: China University of Political Science and Law Press, 2019), 124.
6. Cai Yiping, “Beijing +25: Asia-Pacific Achievements on Women’s Development and Outlook on Priority Issues -Asia-Pacific Ministerial Conference on the ‘Beijing+25 Review”, China Women’s News, December 24, 2019.
7. “Beijing Declaration”, Chinese Women’s Movement 11 (1995): 3-4.
8. The 12 critical areas of concern identified in the Platform for Action include: (1) Women and poverty; (2) women’s education and training; (3) women and health; (4) violence against women; (5) women and armed conflict; (6) women and economy; (7) women’s participation in power structure and decision-making; (8) mechanisms for women’s advancement; (9) women’s human rights; (10) women and media; (11) women and environment; (12 ) girls.
9. “Xi Jinping’s Speech at the Global Women’s Summit,” Xinhuanet, accessed February 17, 2020. www.xinhuanet com / politics / 2015-09 / 28 / c_128272780.htm.
10. “China Releases National Plan on Implementing the 2030 Agenda for Sustainable Development,” Ministry of Foreign Affairs.
11. Ibid.
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14. Ibid.
15. Referring to the National Human Rights Action Plan of China (2009-2010) and the National Human Rights Action Plan of China (2011-2015).
16. National Human Rights Action Plan of China (2016-2020), published by the State Council Information Office in June 2016.
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19. The Regulation of Tianjin Municipality on the Protection of Women’s Rights and Interests, adopted at the 31 st meeting of the Standing Committee of the 16 th People’s Congress of Tianjin Municipality on November 18, 2016.
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21. Regulations of Jiangsu Province on the Protection of Women’s Rights and Interests, adopted at the second meeting of the Standing Committee of the 13 th People’s Congress of Jiangsu Province on March 28, 2018.
22. Regulations of Ningxia Hui Autonomous Region on the Protection of Women’s Rights and Interests, amended at the 45 th meeting of the Standing Committee of the 12 th People’s Congress of Ningxia Hui Autonomous Region on September 27, 2019.
23. The Standing Committee of Shanxi Provincial People’s Congress and the Standing Committee of Fujian Pro-vincial People’s Congress.
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ple’s Government on November 3, 2016.
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31. Special Provisionsof Shaanxi Province on the Implementation of Labor Protection for Female Workers, ad-
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32. Special Regulations of Jiangxi Province on Labor Protection of Female Workers, reviewed and approved by the 80 th Executive Meeting of the Jiangxi Provincial People’s Government on May 12, 2017.
33. Measures of the Ningxia Hui Autonomous Region for Labor Protection of Female Workers, approved by the People’s Government of Ningxia Hui Autonomous Region on August 15, 2016.
34. Special Provisions of Hunan Province on Labor Protection of Female Workers, adopted at the 53 rd Executive Meeting of the Hunan Provincial People's Government on November 27, 2019.
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42. The Law of the People’s Republic of China on Penalties for Administration of Public Security stipulates in Article 44 that “A person who molests another person or intentionally exposes his/her body in a public place, if the circumstances are abominable, shall be detained for not less than five days but not more than 10 days; if a person molests a mentally disabled person, or a person suffering mental disorder, or a person who has not attained to the age of 14, or commits such act with other serious circumstances, he shall be detained for not less than 10 days but not more than 15 days.”
43. The Criminal Law stipulates in Article 237 that “Whoever acts indecently against or insults a woman by vi-
olence, coercion or any other forcible means shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.Whoever gathers a number of people to commit the crime mentioned in the preceding paragraph or commits the crime before the public in a public place shall be sentenced to fixed-term imprisonment of not less than five years.Whoever acts indecently against a child shall be given a heavier punishment in accordance with the provisions of the preceding two paragraphs.”
44. The Measures of Fujian Province for Implementing the Law of the People’s Republic of China on the Pro-
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50. Beijing Platform for Action, para. 126.
50. Beijing Platform for Action, para. 126.
51. Beijing Platform for Action, para. 124.
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