WANG Qian* & YU Shulin**

 

Abstract: Through the retrieval of judicial documents involving sexual harassment in the workplace, it is found that the overall number of civil cases caused by sexual harassment in the workplace in China is very small. In related cases, the proportion of courts identifying sexual harassment in the workplace is low, the proportion of victims suing to protect their rights and interests is low, and the winning rate is also low. The main reason why it is difficult to take legal remedy is that the standards of sexual harassment identification are vague, the collection of evidence is difficult, the standards of proof are different, and it is difficult to take the liability of the employer. Article 1010 of the Civil Code stipulates the definition of sexual harassment and the whole-process prevention and treatment of the employer’s obligation, which is significant progress in regulating sexual harassment in the workplace, but cannot completely solve the above problems. Before the legislation is further perfected, it is necessary to clarify the specific identification elements and judgment standards of sexual harassment, clarify the certifying power and proof standards of relevant evidence, and actively explore the path of liability of the employer.

 

Keywords: sexual harassment in the workplace · difficulty in proof · liability of the employer · article 1010 of the Civil Code

 

In 2018, a female worker openly reported Liu, chairman of the Chengdu Yitiangongyi Social Work Service Center, for sexual harassment, and later filed a lawsuit against Liu with the local court. The case was the first case heard by a court after the “dispute over liability for damages caused by sexual harassment” became an independent cause of action. It was also selected as one of the 9th (2019) Top Ten Public Interest Litigation Cases of 2018, ranking ninth,¹ making sexual harassment in the workplace an issue of public concern. In fact, sexual harassment in the workplace is a long-standing phenomenon in China, and relevant legislation was introduced relatively late. Sexual harassment was first included in law in Article 40 and Article 58 of the Law of the People’s Republic of China on the Protection of Rights and Interests of Women (amended in 2005; hereinafter referred to as the Law on the Protection of Rights and Interests of Women), while Article 11 of the Special Rules on the Labor Protection of Female Employees (issued in 2012) stipulates, in principle, the obligation of the employer to prevent sexual harassment in the workplace. The supporting regulations at the local level are mostly ambiguous, inconsistent, and lacking in enforceability. Even after the legal basis was established, there are still many obstacles that employees seeking legal remedies have to overcome after suffering sexual harassment, as many problems, including difficulties in the identification, proof, and accountability of sexual harassment in the workplace, exist in the process of adjudication. Article 1010 of the Civil Code of the People’s Republic of China (hereinafter referred to as the Civil Code) adopted in 2020 stipulates the constitutive requirements of sexual harassment and emphasizes the obligation of organizations such as enterprises to prevent and stop sexual harassment, while the latest Law on the Protection of Rights and Interests of Women (draft amendment) lists major manifestations of sexual harassment and defines concrete preventive measures that should be taken by the employer, but they fail to fully address the problems. There are limited articles in theoretical circles studying sexual harassment in the workplace from the perspective of legal science, most of which were published before 2020. Moreover, these works mostly discuss how to draw on the experience of foreign laws to establish corresponding systems in China, with their content focusing on a specific aspect of sexual harassment regulations, such as the definition, object of infringement, burden of proof, and employer’s liability of sexual harassment. That is to say, existing works lack empirical studies with comprehensive analyses of judicial practices, and pay limited attention to how to resolve legal disputes arising from sexual harassment in the workplace under the existing legal framework, while the interpretation and application of Article 1010 of the Civil Code await clarification. In view of this, this study has used all judgments related to sexual harassment in the workplace that can be retrieved as examples to explore difficulties in the legal remedy of sexual harassment in the workplace and the crux of the matter, with the hope of providing insights into the handling of such cases for future arbitration and litigation practices. It should be noted that although China’s academic circles mostly accept the theoretical classification of quid pro quo sexual harassment and hostile environment sexual harassment originated in the United States, current laws and judicial practices do not differentiate between them. Therefore, the sexual harassment in the workplace studied in this article refers to sexual harassment happening in the workplace or work-related sexual harassment, with no discussion by category.

 

 

In this study, a full-text search of the core keyword “sexual harassment” was conducted in the legal database of pkulaw.com around March 2021, with the cause of action limited to “personality rights disputes, labor disputes, and tort liability disputes” under administrative and civil causes of action. A total of 133² cases related to sexual harassment in the workplace were found within the period 2002-2020, among which 41 only mentioned sexual harassment in the workplace in the accusations or evidence of litigants, with no relevant expression in the judicial opinions. Therefore, this study only uses the remaining 92 cases as a sample to analyze basic patterns of cases involving sexual harassment in the workplace.

 

 

The results of a 2013 survey on ten textile enterprises in Fujian Province show that although the percentages of surveyed employees and executives directly subjected to sexual harassment are as low as 2.2% for employees and 4.8% for executives, that of surveyed subjects witnessing or hearing about other employees subjected to sexual harassment in the workplace are as high as 63.7% for employees and 79.4% for executives.³ According to the 2020 Report on the Current Situation of Chinese Women in the Workplace released by Zhaopin.com, among the 65,956 valid samples collected in the survey, 8.02 percent of the female respondents claimed that they were subjected to “sexual harassment in the workplace.”⁴ Relevant survey results indicate that the phenomenon of sexual harassment in the workplace has been common in China. However, only 92 relevant cases were retrieved in this study. Even after taking into consideration the fact that judicial documents were not required to be made public online in the early years, the situation revealed by social surveys is in stark contrast to the cases retrieved. Such cases were few before 2010, with only one case each in 2002, 2008, and 2009. The inclusion of “anti-sexual harassment” in law for the first time in 2005 did not bring any visible turning point in the number of judicial cases; it was not until 2015 that the number saw a significant increase. As an independent civil cause of action added by the Supreme People’s Court of the People’s Republic of China, “dispute over liability for damages caused by sexual harassment” was officially implemented with effect from January 1, 2019. Before that, cases involving sexual harassment in the workplace were mostly built on such causes of action as labor disputes, disputes over right to reputation, disputes over general personality rights, and disputes over right to life, right to health, and right to bodily integrity. The measure should have alleviated the problem of “difficulty in building a case” for the many victims of sexual harassment in the workplace, but the number of relevant cases was 14 in 2019 and 11 in 2020, with no significant increase compared to the preceding few years. Among the cases, only one “dispute over liability for damages caused by sexual harassment” case was found in each of the years.

 

 

Case retrieval results show that regarding manifestation, 24 cases involve purely verbal sexual harassment, 26 involve purely physical sexual harassment, 22 involve mixed verbal and physical sexual harassment, 16 facts have not specified the type of sexual harassment behavior, and four cases are difficult to classify, such as “Huang v. Zhejiang SUPCON Technology Co., Ltd. (case of dispute over economic compensation),” in which a male employee masturbated near a female co-worker’s desk and put his semen into the female co-worker’s vacuum cup.⁵ Verbal sexual harassment is mainly manifested as dirty jokes, sexually suggestive words, unwelcome sexual advances, and the like beyond the scope of exchanges between co-workers expressed in face-to-face communication or via online social networking tools such as WeChat and QQ, while a few perpetrators adopted the form of adding sexually explicit texts on pictures. Physical sexual harassment is mainly manifested as the touching of sensitive body parts, such as the face, breasts, waist, and buttocks, beyond courtesy purposes.

 

Overall, the proportion of courts identifying sexual harassment in the workplace as valid is low. Out of the 92 cases, only 34 were identified as constituting sexual harassment in the workplace and 45 were not, while 13 did not specify whether there is sexual harassment in the workplace,⁶ with the proportion being 36.95 percent only. In terms of manifestation, the proportion of purely verbal sexual harassment cases identified as constituting sexual harassment by the court is lower as compared to purely physical sexual harassment cases, as the former is more likely to be deemed as ambiguous expressions not identified as constituting sexual harassment by the court.

 

 

Without case retrieval, one may assume that cases involving sexual harassment in the workplace are mostly lawsuits filed by victims to protect their rights and interests, but the opposite is true. There are only three administrative disputes among the search results. These lawsuits were filed by victims or suspected sexual harassment perpetrators dissatisfied with the decision of police departments to impose or not impose penalties regarding incidents involving sexual harassment in the workplace, which are not the focus of discussions in this article. Most cases are civil lawsuits, with 22 personality rights disputes, 64 labor and personnel disputes, and three tort liability disputes. The personality rights disputes are mostly disputes over right to reputation, i.e., suspected sexual harassment perpetrators, as plaintiffs, filing lawsuits against victims or employers, claiming that the materials disclosed by victims during complaints or employers in the process of handling sexual harassment incidents have infringed their right to reputation. The parties to labor disputes and personnel disputes are mostly employers and suspected sexual harassment perpetrators, with the focus of dispute generally being whether it is legal for the employer to dissolve a labor contract on the grounds of the sexual harassment behavior of the suspected employee. There are only 13 cases with the victims as the plaintiffs, while the specific causes of action and corresponding quantities are shown in Table 1. It is evident that victims are often dragged into disputes over sexual harassment in the workplace. Few victims actively use the law as a weapon to safeguard their rights and interests, while most remain silent. In fact, actively protecting rights and interests is not very cost-effective for victims. Out of the 13 cases in Table 1, cases won by the victim are one dispute over right to privacy, one dispute over liability for damages caused by sexual harassment, and two labor disputes, with the winning rate being as low as 36.36 percent.

 

 

The difficulties in protecting rights and interests against sexual harassment in the workplace are multifaceted. For example, influenced by traditional moral and cultural concepts, female victims often feel that their chastity has been defiled and their reputation has been ruined, while men subjected to sexual harassment are even more ashamed to speak up. To avoid strange glances thrown by the public, those subjected to sexual harassment in the workplace are mostly reluctant to resort to the law. Moreover, if they choose to seek legal remedies, they are likely to encounter the following three obstacles.

 

 

The Law on the Protection of Rights and Interests of Women (amended 2005) stipulates that “sexual harassment against women is prohibited,” but it fails to clearly define sexual harassment, making it a declaratory clause rather than an enforceable one. After that, some provinces and municipalities attempted to define sexual harassment when formulating measures for its implementation. For example, Paragraph 1 of Article 33 of the Measures of Beijing Municipality for the Implementation of the Law on the Protection of Rights and Interests of Women stipulates that “it is prohibited to sexually harass women against their will by such means as language, text, images, electronic information, and physical behavior with sexual content or related to sex.” Such local regulations mostly mention the manifestations of sexual harassment, but their constitutive requirements for sexual harassment are not identical, with a few stipulating the requirement of “going against the will of women.” Hence, prior to the enactment of the Civil Code, various local courts have significantly different opinions regarding what degree of improper words and deeds constitute sexual harassment due to the lack of the concept of sexual harassment at the state level and inconsistent standards in local regulations.

 

Regarding physical sexual harassment, it is commonly accepted by most courts that the unwelcome touching of the hand, face, and other sensitive parts goes beyond the limit of normal contact between co-workers and is generally identified as sexual harassment, for example, “lifting up a female co-worker from the front of her legs in the elevator without her consent⁷,” “having intimate activities with female employees of the company, such as kissing them on the cheek,”⁸ “touching the hands, stroking the heads, patting the legs, wrapping an arm around the shoulders, and blowing air into the ears of several female employees,” ⁹ and the like. However, there are still some courts with a relatively higher tolerance. For example, in “Shan v. Hainan Baoting Baoquan Development Co., Ltd. (case of labor dispute),” all three victims stated that the harasser had forcibly hugged, kissed, and pulled them multiple times when nobody was around, and the harasser also admitted that he had physical contact with the three females but such contact was limited to holding their hands, pinching their necks, and pulling their braids. However, the court believed that harassment is not the same as sexual harassment, which is more severe than harassment. Since the Letter of Confirmation for Suspension and Investigation, Warning Letter for Misconduct, and Notice to XXX Regarding the Penalty of Dissolving the Labor Contract submitted by the employer used the word “harassment” but the employer’s Code of Conduct for Employees stipulates that “the labor contract shall be immediately dissolved if the employee commits sexual harassment in any form,” the court identified the dismissal as illegal.¹⁰ 

 

As compared to physical sexual harassment, the judging of verbal sexual harassment is more difficult. Words are often ambiguous or polysemous with room for semantic judgment, giving rise to the possibility of multiple interpretations in the identification of some implicit language. A characteristic of implicit language is that such language is often narrowed down to one of the many meanings of it that infersexual content, while its original polysemy could subtly cover up the expression of sexual implications. For example, in “Yin v. Liu (case of dispute over right to reputation),” Liu believed that “unspoken rules” are sexual innuendos put forward by Yin, but Yin explained it away as firing Liu if Liu failed to meet performance standards for six months. The court identified “unspoken rules” as implicit language with sexual content from the perspective of context and the understanding of the public.11However, in the earlier “Yin v. a language training company (case of labor contract dispute),” though the litigant and the implicit language concerned are the same for the two cases, the court gave the opposite opinion, believing that the expression is insufficient to be identified as sexual harassment.¹² Another example would be implicit language in “A coating limited company in Sichuan v. Ma (case of labor dispute),” in which the court believed that for the content “those with physiological needs may look for her” in a message sent by Ma, Xinhua Dictionary explains “physiological” as relating to the life activities of an organism and functions of its internal organs. Though “physiological needs” may also mean sexual needs, such needs of the human body as clothing, food, and subsistence may all be construed as physiological needs, hence it believes that identifying the message as sexual harassment against a female co-worker is a narrow understanding that is too severe and too harsh¹³.

 

Courts have very different tolerance even for explicit language. For example, in “Wang v. History & Heraldry Limited (Shanghai) (case of labor contract dispute),” the content of chat history on WeChat reveals that Wang, as a married person, requested Wu to provide photos multiple times, demanded Wu invite him to dinner on the grounds of resume fraud by Wu, said “I like you; let’s go on a date,” and asked Wu “are you living with someone?” The court believed that such improper content went beyond normal exchanges with a co-worker, and hence it was legal for History & Heraldry to dissolve the labor contract between the two parties.¹⁴ However, in a similar case “Han v. Juwai (Shanghai) Investment Consulting Co., Ltd. (case of labor contract dispute),” the employer provided written documents, chat history, emails, and identity cards of witnesses to prove that Han had committed sexual harassment, which contained the poems, flirtatious language, obscene photos, and the like sent by the plaintiff via WeChat that were reported by five female employees, while chat history includes such words as “I want to feel your pulse,” “beauty,” and “do you have a husband.” Though Han recognized the authenticity of the above evidence, he claimed that as a traditional Chinese medicine enthusiast, he asked female employees as part of his pulse-taking practices. The court believed that Han’s requests for pulse-taking on female co-workers, inquiries into personal information not related to work, and sexually suggestive words via WeChat were indeed inappropriate, but there was no sufficient basis for the company to identify Han’s actions as constituting sexual harassment¹⁵.

 

Moreover, in “Taconic Advanced Material (Suzhou) Co., Ltd. v. Jin (case of labor dispute),” though the sexual implication and offensive nature were obvious in Jin’s multiple dirty jokes told during dinner parties and requests for Xiang to sleep with clients sent via WeChat, the court believed as dinner parties were participated by many, there was not sufficient evidence to indicate that the remarks were targeted at Xiang, while Jin’s improper language in the WeChat chat history between the two was not severe enough to be considered sexual harassment¹⁶.

 

Last, when judging whether an act is against the will of another person, the court generally investigates whether the victim has expressed disgust, aversion, or rejection, or has taken such actions as struggle, evasion, and resistance. For example, in “XXX v. Zhangjiagang NSK Precision Machinery Co., Ltd. (case of labor dispute),” the court specifically mentioned that as video records show at least two clear acts of Wang, the victim, struggling against and evading the touches of XXX at 0:33:15 and 0:39:05, it is evident XXX’s touches were not welcome by Wang¹⁷. However, there are cases whereby the court’s standards were too high. For example, in “Wang v. Guangzhou International Golf Club (case of labor dispute),” the court ruled that there was no sexual harassment, the reason being that self-rescue was possible for the victim during sexual intercourse but the victim did not take action, and the victim did not timely report to the police afterward. It overlooked the fact that the victim sent resignations twice to the employer to escape from the pestering and harassment by Wang and expressed during court investigation that Wang intimidated the victim into not telling the police.¹⁸

 

 

An important reason for difficulties in protecting rights and interests against sexual harassment is the “difficulty of proof.” Case retrieval results show that cases whereby sexual harassment was denied due to insufficient evidence take up 78.26 percent of cases whereby the court did not identify sexual harassment in the workplace. Not only is it difficult to collect evidence, but even if some evidence is collected, different courts have different attitudes towards the probative force and evidentiary standards for the same type of evidence.

 

 

The victims of sexual harassment in the workplace are mostly women. Influenced by traditional concepts, many female employees are ashamed of being subjected to sexual harassment, or reluctant to make it public for fear of affecting their reputation, while some are afraid of retaliation, and hence they lack the awareness of actively protecting their rights and interests and positively obtaining evidence. Besides, sexual harassment in the workplace often occurs suddenly, making it difficult for victims to obtain evidence in panic. Sexual harassment, happening in secluded places or when the litigant is alone, is also likely to make it difficult for the victims to obtain evidence. Through an analysis of relevant cases, it is found in this study that the types of evidence used to prove sexual harassment in the workplace are limited. They mainly include statements of litigants, witness testimonies of other persons, text records such as WeChat chat history, records of telephone conversations, surveillance videos, police records and transcripts of questioning by public security authorities, and records of internal interviews and investigations by the employer. As cases involving sexual harassment in the workplace are characterized by their secretive, sudden, and private nature, statements of litigants and witness testimonies of other persons are the types of evidence that appear most frequently, with a total of 41 cases involving such types of evidence.

 

Text records such as WeChat, QQ, and SMS chat history and records of telephone conversations are also widely used, with a total of 24 relevant cases. The court is able to directly judge whether the suspected employee has committed sexual harassment by examining the content of the text or audio recordings. Apart from the types of the evidence above, cases which adopt other types of evidence are rare. Among them, though surveillance videos can visually record body contact, surveillance cameras cannot possibly cover all places, and the court has a high requirement on the definition of surveillance videos if they were to be used as evidence. For example, in “Sheraton Grand Beijing Dongcheng Hotel of BBMG Group Company Limited v. Wang (case of labor dispute),” the court did not identify sexual harassment as a fact, as the surveillance video shows shots of a man hugging a female employee, but the images are blurred and the employer failed to prove that the man is Wang¹⁹.

 

 

A comparison of cases using the same type of evidence shows that judges have obvious subjective differences regarding to what extent could the same type of evidence be used to establish sexual harassment in the workplace, as the same type of evidence has different levels of probative force in different cases. When the level of probative force is deemed high, sexual harassment in the workplace may be identified even with only this type of evidence; when the level of probative force is deemed low, it means other types of evidence are needed to support it, but this is often difficult to achieve given the difficulties in collecting evidence, resulting in the failure to identify sexual harassment in the workplace. Therefore, the different identification results in some cases may have originated from different understandings of the probative force of the same type of evidence.

 

(1) Probative force of statements of litigants and witness testimonies. Statements of litigants and witness testimonies occur most frequently in judicial practices, yet they are also the most disputed type of evidence. With only statements of litigants or witness testimonies and no other types of evidence to support them, courts have different attitudes towards the probative force of such a type of evidence in different cases. The attitudes can be roughly divided into four levels in ascending order of probative force: insufficient to prove sexual harassment behavior due to the witness failing to testify in court or being an interested party; mutual corroboration with other evidence required due to the witness failing to testify in court or being an interested party; mutual corroboration of the same type of evidence; the identity and situation of the witness giving the testimony high probative value. Relevant typical cases are listed in detail in Table 2.

 

(2) Probative force of police records and transcripts of questioning by public security authorities. The courts’ understandings of the probative value of police records and transcripts of questioning by public security authorities to sexual harassment in the workplace are widely divergent. In “Shanghai Little Earth Education Training Co., Ltd. v. Zuo (case of labor contract dispute),” the court stated that although police records proved that the victim had reported to the police, the police did not investigate or handle the case accordingly. Identifying the perpetrator as having committed the act of sexual harassment with the police report alone lacked a factual basis.²⁴ In a similar situation whereby the public security authority had not reached a handling conclusion, the court held the opposite attitude in “Hu v. ICC Electronics (Dongguan) Ltd. (case of labor contract dispute).” It believed that since the victim reported to the police at a police station and informed family members and the staffing firm of the molestation, had the perpetrator not committed molestation, the victim would not have disregarded personal reputation, relationship, and the views of the public and risked being held accountable for making false reports, which is clearly contrary to the behavior of a normal person and common sense in society²⁵.

 

Moreover, public security authorities not identifying the fact of sexual harassment after reporting it to police may lead to the court denying the presence of sexual harassment in the workplace. For example, in “Sun (A) v. Sun (B) (case of dispute over general personality rights),” the public security authority gave a Letter of Decision on Not Imposing Administrative Penalties as the fact of sexual harassment is not established.²⁶ In “Dongguan Jinpeng Business Service Co., Ltd. v. Zhou (case of labor contract dispute),” the transcripts of questioning and the conciliation statement by the public security authority do not confirm the existence of sexual harassment.²⁷ These became reasons for the court not to identify the fact of sexual harassment.

 

(3) Probative force of records of internal interviews and investigations by the employer. After sexual harassment occurs in the workplace, some organizations will actively conduct investigations, interview relevant personnel, and collect relevant evidence, while various courts have vastly different attitudes toward this type of evidence. Some courts are skeptical. For example, in “LG Chem (Nanjing) Information & Electronic Materials Co., Ltd. v. He (case of labor dispute),” the court believed that such materials as audio recording CDs, transcripts, and witness testimonies came from internal investigations by the enterprise, and relevant parties concerned did not appear in court to testify, and hence it could not confirm the authenticity or the legitimacy of the sources.²⁸ There are also courts that hold a supportive attitude. For example, in “Foshan Nanhai Chieng Yeng Plastic and Hardware Product Co., Ltd. v. Fang (case of labor dispute),” Chieng Yeng company conducted an internal investigation and interviewed female employees according to an anonymous complaint phone call, in which some female employees indicated that they had been harassed by Fang, and stated the time of harassment and the content of such harassment, including Fang touching their hands, breasts, waists, and shoulders, patting their buttocks, pulling their blouses, intentionally having close contact and frequently touching the body of female employees, or using some inappropriate language. The court of the first instance questioned the five female employees in the Employee Investigation Interviews to form transcripts of questioning. The female employees stated relevant circumstances in detail and expressed that the harassment behavior of Fang resulted in varying degrees of psychological distress to them, but were reluctant to testify in court due to safety concerns. The court of the second instance believed that the content of transcripts of questioning formed by the court of the first instance after an application for investigation and evidence collection according to law corroborates with the content of Employee Investigation Interviews provided by Chieng Yeng company, and such transcripts of questioning had gone through production and testification of evidence, and hence they could be accepted as evidence for ascertaining facts in the case²⁹.

 

 

Several Provisions of the Supreme People’s Court on Evidence in Civil Procedures implemented with effect from April 1, 2002, formally stipulate the evidentiary standards for civil litigation in China for the first time.³⁰ According to Paragraph 1 of Article 73 of the Provisions, “where the two parties concerned produce contradicting evidence regarding the same fact but neither has sufficient evidence to rebut that of the other party, the people’s court shall determine which party’s evidence has obviously greater probative force than the other party’s by taking into consideration the circumstances of the case, and confirm the evidence with relatively greater probative force.” Later, Paragraph 1 of Article 108 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China defines that the high degree of probability standard applies to civil procedures, i.e., “with regard to the evidence provided by the party concerned with the burden of proof, where a people’s court believes that the existence of a fact to be proved is highly probable upon examination and in combination with the relevant facts, it shall affirm the existence of the said fact.” However, the “high degree of probability” standard has not been fully enforced in judicial practices after its establishment,³¹ while its intrinsic ambiguity leaves much to the discretion of judges when it is applied. Case retrieval results show a significant disparity between high and low evidentiary standards applied by courts in cases related to sexual harassment in the workplace. Most courts have stringent standards. Only very conclusive evidence can prompt judges to make a conviction, which is almost equivalent to clearly ascertaining the fact of sexual harassment. And only a few courts boldly identify sexual harassment behavior based on a chain of evidence without fully ascertaining facts in the case. For example, in “Chen A v. B (China) Co., Ltd.,” the court believed that the evidence submitted by the employer had formed a chain of evidence that corroborates with the statements of the victims. According to the high degree of probability standard for evidence in civil procedures, the probative force of evidence submitted by the employer was obviously greater than that submitted by the suspected sexual harassment perpetrator, and hence the court identified the existence of sexual harassment.³² In the above-mentioned “Hu v. ICC Electronics (Dongguan) Ltd. (case of labor contract dispute),” the court demonstrated the existence of sexual harassment behavior using logical reasoning and the principles of everyday experience based on police records.

 

 

In terms of the prevention, hearing of complaints, and investigation and handling of sexual harassment in the workplace, the employer plays a vital role. However, the legal liability of the employer failing to fulfill its obligations in prevention and control is currently unclear, making it very difficult to hold the employer liable in judicial practices. According to Article 11 of the Special Rules on the Labor Protection of Female Employees, the employer should prevent and stop sexual harassment against female employees in the workplace, but what is the liability borne by the employer if it fails to fulfill its obligations in the prevention and control of sexual harassment in the workplace? Article 15 of the Special Rules on the Labor Protection of Female Employees stipulates that “in the event that an employer violates the provision hereof and infringes the legitimate rights and interests of female employees and thereby causing a loss, it shall be obliged to pay compensation.” Some local regulations specify the legal liability of the perpetrators of illegal acts, but basically make no mention of the legal liability of the employer. Only Article 47 of the Measures of Sichuan Province for the Implementation of the Law on the Protection of Rights and Interests of Women stipulates that “if an organization or employer is in fault when sexual harassment against women occurs in the workplace causing physical, mental, or reputational damage to them, it shall bear corresponding civil liability for damages according to law.” The regulations of Fujian Province vaguely mention that “the employer shall bear corresponding liability in accordance with relevant regulations.” However, in judicial practices over the years, no attempt has been made in any case to hold the employer liable for damages on this basis.

 

Could a worker dissolve the labor contract and claim economic compensation on the grounds of the employer “failing to provide occupational protection or working conditions as agreed upon in the labor contract” in accordance with Item 1, Paragraph 1 of Article 38 of the Labor Contract Law of the People’s Republic of China if the employer breaches its obligation to prevent and stop sexual harassment in the workplace? Case retrieval results show that only in four cases did the victim claim economic compensation from the employer after being forced to resign because of sexual harassment, in which two claims were not upheld due to insufficient evidence. In “Huang v. Zhejiang SUPCON Technology Co., Ltd. (case of dispute over economic compensation),” the court’s opinion was that “occupational protection is the measures taken by the employer to protect the life safety and health of workers, prevent accidents during work, and mitigate occupational hazards; working conditions mainly refer to the necessary material and technical conditions provided by the employer for workers to successfully accomplish tasks stipulated in the labor contract. Though the Special Rules on the Labor Protection of Female Employees and other relevant laws and regulations on the protection of rights and interests of women stipulate the obligation to prevent and stop sexual harassment in the workplace, not all illegal activities occurring in the workplace are attributable to the employer's failure to provide occupational protection and working conditions.” Only in “Zhao et al. v. Beijing Shoushi Xinye Labor Service Co., Ltd. (case of labor dispute),” in which the victim was dismissed by the company on the grounds of absence without leave upon resigning to apply for arbitration against the company for failure to safeguard personal safety, after the victim’s request for a change of shift schedule was denied by Shougang company even though the victim had been harassed three times, the court of the second instance believed that the employer had failed to fulfill its occupational protection obligations, hence identifying the victim’s refusal to attend work as not belonging to absence without leave and the dismissal as illegal³³.

 

Moreover, in practice, some courts still deem sexual harassment in the workplace as not belonging to labor disputes, or that the employer is not a proper defendant in a dispute over liability for damages caused by sexual harassment, thus directly obstructing the channel for victims to seek legal remedies. For example, in “Tan v. Shenzhen Minghaoda Cleaning Service Co., Ltd. (case of labor dispute),” the court refused to hear the case on the grounds that the issue of sexual harassment against the victim by the Guangzhou Regional Head of the employer did not belong to the scope of labor disputes, and suggested that the victim complain to the company or seek other means to solve it.³⁴ In “Zhang v. Beijing Jingdong Century Trading Co., Ltd., etc. (case of dispute over liability for damages caused by sexual harassment),” though the worker pointed out that the employer has the obligation to stop sexual harassment in the workplace, the court still insisted that “Jingdong Company is an enterprise legal person and hence not a qualified defendant for a dispute over liability for damages caused by sexual harassment.”³⁵

 

 

Article 1010 of the Civil Code gives the definition of sexual harassment and emphasizes the employer’s obligations in prevention and control, while the Law on Protection of Rights and Interests of Women (draft amendment) promulgated on December 21, 2021 lists major manifestations of sexual harassment and defines concrete preventive measures that should be taken by the employer. In the future, they will certainly help address the problems of “difficulties in the identification” and “difficulties in the accountability” of sexual harassment in the above practices, marking the progress of China’s regulation of sexual harassment in the workplace.

 

However, the difficulties in the legal remedy of sexual harassment in the workplace mentioned above have not been completely solved. On the one hand, the legislation itself awaits improvement, such as unclear legal responsibility to be borne by employers for failing to fulfill their prevention and control obligations; on the other hand, some problems have emerged in the process of interpreting and applying legal provisions, such as obvious differences in the identification of probative force of relevant evidence. The following suggestions are hereby put forward for reference in arbitration and litigation practices.

 

 

A person who has been sexually harassed against his will by another person through oral words, written language, images, physical acts, or the like, has the right to request the actor to bear civil liability in accordance with the law. The Civil Code expands the protected targets from “women” to“persons,” achieving the de-gendering of protection against sexual harassment³⁶ and emphasizing that sexual harassment behavior is related to sex and against the will of others, which should be beyond doubt. The typical circumstances listed in Article 50 of the Law on the Protection of Rights and Interests of Women (draft amendment) will also help to define harassment in practice, i.e., “words with sexual connotations or innuendoes; inappropriate and unnecessary physical behaviors; displays or dissemination of images, text, information, audio or video with obvious sexual significance; acts that imply that there will be some benefit in developing a private or sexual relationship; other circumstances that should be identified as sexual harassment.” The following aspects in the actual understanding and application of them are worth discussing.

 

 

Due to the ambiguous and polysemous nature of language, it is not possible to completely solve the problem of difficulties in the identification of verbal sexual harassment. It will always be influenced by the subjective judgment of judges to some extent, but attempts should be made to establish an objective framework and standards for value judgments. For example, the remarks involved in the dispute should have sexual implications according to the general conception in society, which can be either dirty jokes, references to sexual relations, and the like that directly express sexuasubjects, or love affairs that indirectly point to sexual subjects.³⁷ Many scholars assert that sexual harassment is a form of gender discrimination, and advocate drawing lessons from the anti-gender discrimination regulatory model of the United States.³⁸ This paper believes that such a model is of reference significance that can be taken into consideration when amending laws in the future. However, there are some difficulties in applying the anti-discrimination regulatory model under the background of realities in China. The argument that sexual harassment belongs to gender discrimination believes that sexual harassment originates from gender inequality, in which women are positioned as inferior to men. Sexual harassment may appear as a personal tort, but it is in fact discrimination against women as a whole group.

 

However, the connection between sexual harassment and gender discrimination is not deep-seated from the beginning even in the United States. Its application of the anti-discrimination model to regulate sexual harassment was a long process from negative to positive, a system established under the judicial model of the common law system by virtue of the continuous accumulation of numerous cases brought to court by female victims of sexual harassment based on the theory of equality and promoted by the feminist movement with the theme of pursuing gender equality.³⁹ In contrast, although China’s legislation against sexual harassment initiated by the Law on the Protection of Rights and Interests of Women and the Special Provisions on the Labor Protection of Female Employees stems from the stance of protecting women, its focus is still on preventing women from being sexually harassed by others, rather than eliminating gender discrimination and pursuing gender equality, and there has never been a case interpreted from the perspective of gender discrimination in relevant judicial practices. In other words, sexual harassment and gender discrimination have not yet been connected in the concepts of legislators and judges in China, with a lack of the relationship of gender discrimination encompassing sexual harassment that has been artificially established for a long time in the United States. The view that sexual harassment is gender discrimination is also prone to be challenged due to the trend of gender diversification of the harasser and the harassed. For example, under the current legislative situation of de-gendering of protected targets of sexual harassment in the Civil Code, how can sexual harassment against men by women or transgender people be interpreted as a type of gender discrimination? In addition, China’s anti-discrimination legal system is still relatively underdeveloped in general, with the absence of a concrete basic law on anti-discrimination, weak enforceability of provisions in sectoral laws, no specialized anti-discrimination agency in terms of procedure, and difficulties obtaining legal remedy. Like a “dispute over liability for damages caused by sexual harassment,” a “dispute over the right to equal employment” is also a new cause of action established in 2019. Making victims opt for the remedy channel of the latter under the current legal framework is rather overreaching.

 

 

The cause of sexual harassment is that the closed-loop of sexual consent has not been formed. The interactive process of sexual consent logically includes three stages: advances made by one party, feedback from the other party, and the reaching of consent between the two parties.⁴⁰ If the other party’s feedback is an active or passive rejection, the third stage could not be reached. Without doubt, “against the will of others” describes the subjective state of the victim, but the key lies in how to judge. The sensitivity of different people towards the same sexual harassment behavior differs, but whether she or he accepts or refuses could still be objectively judged. In order to strengthen the protection of victims, first, full consideration should first be given to whether the victim has expressed the intention to refuse, such as rejections or warnings in text records, evasion or resistance actions in surveillance videos, complaints to the employer or requests for a transfer, etc. Second, if the victim has not expressed an obvious intention to refuse, it is also wrong to jump to the conclusion of mutual consent. In the case of sexual harassment in the workplace, the victim is often afraid to resist or unwilling to speak up out of fear or shame, which may be manifested as no response. If it is difficult to judge the subjective will of the victim, it should be considered objectively in a judgment of whether the behavior is unwelcome from the perspective of the public. If so, it is presumed to be an act of sexual harassment against the will of the victim. It is even more unreasonable to take whether self-rescue is executed and whether the police is informed afterward as the criteria to judge whether the act is against the will of the party concerned. Such criteria have no causal relationship with whether the suspect has sexual harassment behavior, as executing self-rescue and informing the police afterward are the rights rather than obligations of the victim. The victim not exercising such rights due to whatever concerns should not become an adverse factor for the victim seeking to protect rights and interests afterward. Finally, consideration could also be given to whether the suspect has engaged in such acts as apologizing. For example, in the ruling of the retrial of the “dispute over liability for damages caused by sexual harassment between Liu, Xu, and Chengdu Yitiangongyi Social Work Service Center⁴¹,” the court believed that if Liu’s hugging of the victim was only a courtesy act intended for comfort as claimed by Liu, he would have defended himself instead of apologizing to the victim repeatedly.

 

 

Some scholars have proposed that behaviors without serious consequences should not be identified as sexual harassment even if they possess other characteristics of sexual harassment, as the premise of legal remedy is damage and only the damage reaching a certain quantity requires a legal remedy.⁴² This paper does not agree with this statement, the reasons being: first, the serious consequences caused by a behavior being a constitutive requirement of the behavior is illogical. For example, if an employee sends pornographic pictures to a colleague to make the recipient feel unhappy, uneasy, and uncomfortable, then sexual harassment behavior has already been established, and it is obviously wrong to deny that the behavior is sexual harassment just because the unhappiness, uneasiness, and discomfort have not reached the degree of physicality; second, the severity of consequences can be used to determine the extent of legal remedy, and even if there is no serious damage, the perpetrator of sexual harassment could still be required to bear the liability, such as stopping the infringement and apologizing;⁴³ third, there is no standard to judge whether the consequences are serious, and it is difficult to provide evidence. As the definition and proving of sexual harassment are already difficult issues, if serious consequences are taken as a constitutive element, it will make the path of protecting rights and interests even more difficult for victims.

 

 

On the one hand, it is clearly against common sense in everyday life to limit sexual harassment in the workplace to the specific time and space of working hours and the workplace, as it may occur in all production and operations activities of the employer, such as business trips, celebrations and banquets, team building activities, vocational training, and other occasions, rather than only in the “eight hours” in the workshop or office. On the other hand, the definition of sexual harassment in the workplace should also be restricted to the scope that can be influenced by the organization and arrangements of the employer, otherwise, it will risks being generalized and confuse with general risks in life. Sexual harassment in the workplace must be work-related, and hence the employer shall not be held liable for sexual harassment happening in private contacts not related to work between workers. For example, in US law, quid pro quo sexual harassment means that the perpetrator demands the victim to provide sexual favors to obtain favorable working conditions such as hiring, promotion, and pay rise or to avoid adverse working conditions such as demotion, penalty, or dismissal, while hostile environment sexual harassment means that the perpetrator’s behavior makes the working environment hostile and full of unwelcome sexual coercion, ridicule or humiliation⁴⁴.

 

 

Over the past decade, many scholars have put forward suggestions to address the problem of difficulties in the proving of cases involving sexual harassment in the workplace, such as establishing different burdens of proof according to different types of sexual harassment in the workplace or combining the types with different evidentiary elements.⁴⁵ Without doubt, these ideas are of great reference value, but most of them need to be realized at the legislative level and require the modification of supporting systems. Under the existing legal framework, special rules for the burden of proof are not applicable to cases involving sexual harassment in the workplace. The system of “whoever makes the claim shall provide evidence” still applies. To solve the problem of proving the claim, it is only possible to start from the probative force of evidence and evidentiary standards. It should be noted that with the promulgation of the Personal Information Protection Law of the People's Republic of China and the advancement of practices, it may be even more difficult to collect evidence in the future, and the problem will become more acute. For example, employers may not be able to install all-day-round video surveillance in most corners of the workplace like now, and evidence collected by surveillance in a way that infringes upon personal information rights and interests may not be accepted.

 

Case retrieval results show that most of the evidence in cases involving sexual harassment in the workplace comes from sources within the employer. Text records such as WeChat chat history, records of telephone conversations, and surveillance videos are less likely to be tampered with and more objective and direct, making it easier for them to be accepted by arbitrators and judges. In contrast, the statements of litigants, witness testimonies of other persons, and records of internal interviews and investigations by the employer usually have limited probative force because they come from sources within the organization and there could be a conflict of interest. However, the secretive, sudden, and private nature of sexual harassment in the workplace determines that evidence mostly belongs to the latter types. According to Article 68 and Article 90 of Several Provisions of the Supreme People’s Court on Evidence in Civil Procedures implemented with effect from May 1, 2020 (hereinafter referred to as the New Evidence Rules), statements of litigants and testimonies of the witnesses who have interests in either party may not be used alone as the basis for identifying the facts of the case, and the court not accepting the testimonies of witnesses who do not appear in court for testification without valid reasons also conforms to the rules for testification of evidence. However, this paper argues that given it is difficult to collect evidence for cases involving sexual harassment in the workplace, the evidence obtained should not be easily given up or denied. In the relatively secluded environment of the “workplace,” except in a few cases whereby sexual harassment comes from third parties such as customers, sexual harassment mostly occurs among employees, and most of those who can witness relevant facts are colleagues in the company. The fact that the witnesses come from within the company does not necessarily mean that they have interests in the employer or the victim. If the probative force of internal evidence is not recognized, the employer would lack judicial support when taking such measures as hearing complaints and investigating and handling sexual harassment in the workplace, and hence the legal obligation of the employer to prevent and stop sexual harassment will become empty talk.⁴⁶ This does not require judges to trust any evidence from sources within the employer. Of course, the judge can independently determine whether the evidence has probative force and the magnitude of the probative force by reviewing the evidence to form an inner conviction. However, it is draconian to refuse to accept the evidence just because it comes from sources within the organization, which may result in no evidence available for cases involving sexual harassment in the workplace.

 

For the testimony of a witness who does not appear in court for testification, when the witness is reluctant to appear in court due to confirmed intimidation or possible retaliation, the court may consider interpreting it as “other circumstances for not appearing in court with valid reasons,” and other ways to make up for the defect may be considered. For example, lessons can be drawn from the countermeasures in the aforementioned “Foshan Nanhai Chieng Yeng Plastic and Hardware Product Co., Ltd. v. Fang (case of labor dispute)”: as the relevant female employees were unwilling to testify in court due to safety concerns, the employer submitted an Application for Investigation and Evidence Collection to the court to legally request the court to appoint female staff to investigate female employees subjected to sexual harassment and collect evidence related to their privacy and the facts of sexual harassment; the court approved it and arranged for female staff to complete the investigation and questioning and formed transcripts of questioning, which were confirmed by the signatures of every respondent. At the time of the hearing, the above transcripts hadall gone through production and testification of evidence, and hence the court believed that they could be accepted as evidence to identify the facts in the case.

 

The high degree of probability principle is applicable to civil lawsuits caused by sexual harassment in the workplace. High degree of probability refers to the judgment formed in the heart of the judge that it is extremely likely or highly likely for it to be the truth, although the judge has not formed a conviction that it must be the truth from the evidence.⁴⁷ The age, gender, upbringing, social environment, and the like will make different judges form different pre-understandings, especially in the face of sexual harassment which is a type of case with high-value judgment attributes, whereby the judges will certainly have different ideas on what circumstances can be used to identify that it is “extremely likely” or “highly likely” for sexual harassment in the workplace to exist, but this difference can be narrowed. In cases involving sexual harassment in the workplace, there is more indirect evidence but less direct evidence, and more verbal evidence and less physical evidence. If the judge requires too much evidence for an inner conviction, the victim or employer who could not obtain direct evidence will be severely disadvantaged. As some scholars have pointed out, the evidentiary standard itself is a guide to the free evaluation of evidence through inner conviction, which must be understood and grasped in the context of specific cases.⁴⁸ The operability of evidentiary standards is also reflected in the fact that the setting of the evidentiary standards may be adjusted according to the different nature of the facts to be proved.⁴⁹ Considering that it is difficult for the victim to fully and comprehensively provide evidence in cases involving sexual harassment in the workplace, and that they are often afraid to take the initiative to protect their rights and interests for fear of damaging their reputation or retaliation, let alone falsely accuse others, judges can consider appropriately lowering the evidentiary standard for identifying the facts of sexual harassment.

 

 

Paragraph 2 of Article 1010 of the Civil Code stipulates that “state organs, enterprises, schools, and other organizations shall take reasonable precautions, accept and hear complaints, investigate and handle cases, and take other like measures to prevent and stop sexual harassment conducted by a person through taking advantage of his position and power or a superior-subordinate relationship, and the like.” Although this provision emphasizes the employer’s obligation to prevent and control sexual harassment throughout the whole process, it does not further clarify the legal liability in case of non-performance, which still awaits future revisions and improvements of the law. This paper believes that, within the framework of current provisions, paths for holding the employer liable could be explored in the following aspects.

 

First, if an employer breaches its obligation to prevent and control sexual harassment in the workplace, such as ignoring the complaints of the victim or even covering up for the suspect, it constitutes a serious breach of contract. The court shall support the case whereby a worker dissolves the labor contract and claims economic compensation on the grounds of the employer “failing to provide occupational protection or working conditions as agreed upon in the labor contract” in accordance with Item 1, Paragraph 1 of Article 38 of the Labor Contract Law of the People’s Republic of China. According to traditional concepts, occupational protection is more about production safety and health, while working conditions are more about the equipment and technology required for work. This understanding seems narrow now. As the employer’s obligation to prevent and stop sexual harassment in the workplace has been established by legislation, occupational protection and working conditions should pay equal attention to both material and spiritual aspects, and should extend to cover the content of protecting workers’ mental health and personal dignity and providing workers with an environment free of sexual harassment. The prevention and control of sexual harassment in the workplace is an important part of the employer's protection obligations. It is necessary to give workers the right to terminate immediately when the employer fails to fulfill its protection obligations.

 

Second, if an employer breaches its obligation to prevent and stop sexual harassment in the workplace and causes damage to a worker, the victim shall be supported to ask the employer to bear liability for compensation according to Article 15 of the Special Rules on the Labor Protection of Female Employees. However, the limitation of this Article is that it only applies to female employees. Could it apply to male employees subjected to harassment by analogy? This paper considers it feasible. Sexual harassment was introduced into China as a derivative of the feminist movement in the Western world. In real life, most of the victims of sexual harassment are women, and hence it is inevitable that the regulation of sexual harassment focuses on the protection of women’s rights and interests. However, after realizing that men may also become victims of sexual harassment, the Civil Code has de-gendered the objects of sexual harassment, so male employees should also be protected. In addition, if an employer breaches its obligation to prevent and stop sexual harassment in the workplace, resulting in serious damage to the physical and mental health of a worker, applying Paragraph 4 of Article 88 of the Labor Contract Law of the People’s Republic of China to claim liability for compensation may also be considered. It should be noted that since the victim may also demand compensation from the perpetrator of sexual harassment for personal damage, property loss, and mental damage in accordance with Articles 1179, 1182, and 1183 of the Civil Code, if the victim files a labor dispute lawsuit to claim compensation from the employer, the compensation items for which the employer is liable should not be the same as the former’s, but rather the loss of interests at work and deterioration of the working environment suffered by the worker.

 

Last, if the victim does not choose the remedy channel of labor and personnel disputes, but chooses to directly file a general civil lawsuit with a dispute over liability for damages caused by sexual harassment being the cause of action, the employer should also be recognized as a qualified defendant of such a dispute. Many scholars have proposed drawing on the experience of the United States, that is, the employer should bear strict vicarious liability for quid pro quo sexual harassment perpetrated by its managers and employees, and bear tort liability for hostile environment sexual harassment. Some have also analyzed it from economic or sociological perspectives, such as reward theory, danger theory, and social cost theory.⁵⁰ These discussions are of course very meaningful in terms of legislative theory, but it is difficult for them to provide judges with the basis for adjudication under current laws. This paper holds that the current laws of China have not made the above classification, and it is difficult to pursue the employer’s liability of the employer according to Article 1191 of the Civil Code. This liability is a vicarious liability and a no-fault liability, while the key to applying this Article is that the tort must be attributable to the act of the staff performing their work tasks. According to the understanding of the Supreme Court, when judging whether the staff member’s infringement falls within the scope of performing work tasks, comprehensive consideration should be given to the content, time, place, occasion, name of the act, beneficiaries of the act, and whether it is related to the will of the employer.⁵¹ According to this judgment standard, sexual harassment in the workplace may occur during working hours, in the workplace, and in work-related scenarios, but the content of the behavior may have nothing to do with work. It does not represent the will of the organization, nor could it be carried out in the name of the employer or benefit the employer. Performing duties only provides convenience and opportunities for the execution of sexual harassment. Generally, sexual harassment is not authorized by the employer, and judging from its objective form, the victim will not feel that it is an act of the organization. However, there is an exception in this regard, that is, if the employer requires the employee to accept sexual harassment from a third person for the benefit of the employer or forces the employee to offer sexual bribery to a third person, for example, a company asking a salesperson to sleep with customers to facilitate business, then applying Article 1191 of the Civil Code to hold it liable may be considered.

 

In addition, it is difficult to arrive at a conclusion under current laws that employers should bear strict vicarious liability. Sexual harassment is a tort with strong personal attributes. Although sexual harassment in the workplace has its particularity compared to sexual harassment in general, it is still a personal illegal act in nature. Paragraph 1 of Article 1010 of the Civil Code clearly stipulates the direct liability of the perpetrator, while Paragraph 2 emphasizes the employer’s obligation to prevent and stop sexual harassment in the workplace, but it does not make special arrangements for the assumption of liability in the meantime. To some extent, it can reflect the intention of the legislator, that is, it hopes to better protect the personal rights in Paragraph 1 through the prevention and control actions of the employer. Hence, the perpetrator of sexual harassment and the employer should each fulfill their own legal obligations and bear corresponding legal liabilities.⁵² Therefore, in general, the employer can only be required to bear its fault liability based on its failure to perform the obligation to prevent and stop sexual harassment in the workplace, that is, considering the extent of the employer’s fault and the severity of the damage, the employer could be required to bear civil liabilities such as apology and compensation for damages. For the operators and managers of public places or organizers of mass activities, Article 1198 of the Civil Code stipulates the obligation of security and supplementary liabilities under tort by a third person. The labor contract is a typical continuing contract, where there is a relationship of trust between the two parties. The employer should pay more attention to the care and protection obligations for the worker, maintain the normal operation and good order of production and operation, provide a normal, safe workplace for the worker, and protect the worker from various physical or mental violations, including sexual harassment in the workplace. At this time, it should also be noted that since the victim can also claim damages from the perpetrator, there are 

differences in compensation items.

 

Apart from that, the employer’s obligation to prevent and stop sexual harassment in the workplace should be taken seriously in the future. Paragraph 2 of Article 1010 of the Civil Code mentions the prevention in advance, acceptance of complaints in the process, and investigation and handling afterward, but does not mention specific measures. When screening valid samples, it was found that most of the cases with the keyword “sexual harassment” identified in the rough search were not cases involving sexual harassment in the workplace, and they were only identified because the judgment mentions that the Employee Handbook of the employer contained the provisions of “no fighting, brawling, violence, sexual harassment...” It can be seen that the formulation of rules and regulations prohibiting sexual harassment in the workplace has gradually become a routine operation of the employer. However, it is rare in practice that other measures have been taken at the same time. In this regard, Article 52 of the Law on the Protection of Rights and Interests of Women (draft amendment) clearly requires: “employers shall take the following measures to prevent and stop sexual harassment against women: (1) formulate rules and regulations prohibiting sexual harassment; (2) specify the responsible institutions or personnel; (3) carry out education and training activities to prevent and stop sexual harassment; (4) take necessary security measures; (5) set up complaint telephone, mailbox, etc., and unblock complaint channels; (6) establish and improve investigation and handling procedures, timely handle disputes, and protect the privacy of the parties; (7) other reasonable preventive and restraining measures.” After the adoption of the amendment, this will undoubtedly play a positive role. On January 15, 2021, nine departments of Shenzhen including the Women’s Federation, Education Bureau, Public Security Bureau, Human Resources and Social Security Bureau, and others jointly issued the Guideline on Preventing Sexual Harassment in Shenzhen, which stipulated in great detail the specific measures for prevention, education, consultation and complaint handling. For example, it mentions in the setup of institutions that “departments responsible for the prevention and control of sexual harassment can be set up in the human resource department, discipline inspection department, trade union, etc., and the gender ratio of their members can be set according to the actual men-women ratio of the organization, so as to avoid the situation that the complainant or informant is too shy to tell the opposite sex;” on how to deal with sexual harassment, it mentions that “after reviewing the investigation report, the organization shall deal with the case according to the severity of the circumstances, take timely and effective actions against confirmed sexual harassment, compensate the victim, prevent the recurrence of such an incident, and give different levels of punishment to the perpetrators according to the severity of circumstances.”⁵³ The guideline is detailed, specific, and enforceable, which makes it worthwhile for other places to learn and duplicate.

 

 

From the Law on the Protection of Rights and Interests of Women amended in 2005 to Article 1010 of the Civil Code adopted in 2020, China’s regulation of sexual harassment in the workplace has made great progress. However, there are still problems in judicial practices, such as the small total number of cases involving sexual harassment in the workplace, low proportion of courts identifying sexual harassment in the workplace as valid, and small proportion of victims seeking to protect their rights and interests with low odds of winning.

 

By going through past judgments, the crux of the problem can be found. The main reasons why it is difficult to get a legal remedy are vague standards for the identification of sexual harassment, difficulties in the collection of evidence, inconsistent evidentiary standards and standards for the recognition of probative force, and difficulties in holding the employer liable. Under the existing legal framework, some viable suggestions for improvement are put forward in this paper. First, it is necessary to define the specific identification elements and judgment standards for sexual harassment. Sexual harassment is a sex-related act that infringes upon the personality rights of others. Whether it is against the will of others can be investigated from multiple aspects such as the subjective will and the objective manifestation, while whether serious consequences are caused should not be taken as a constitutive requirement of sexual harassment. Second, it is necessary to clarify the probative force and evidentiary standards of relevant evidence. It is wrong to refuse to accept evidence just because it comes from sources within the organization. For the testimonies of witnesses who are unable to appear in court for testification for valid reasons, the defects may be compensated for in other ways. As it is difficult for the victim to provide comprehensive, 

sufficient evidence, consideration may also be given to appropriately lowering the evidentiary standards for identifying the fact of sexual harassment. Finally, it is necessary to actively explore the paths for holding the employer liable. If the employer breaches its obligation to prevent and stop sexual harassment in the workplace as stipulated in Paragraph 2 of Article 1010 of the Civil Code, the worker should be allowed to dissolve the labor contract and claim economic compensation in accordance with Item 1, Paragraph 1 of Article 38, of the Labor Contract Law of the People’s Republic of China. If the employer causes damages to the worker, the worker may choose the remedy channels for labor and personnel disputes, or choose to directly file a general 

civil lawsuit with a dispute over liability for damages caused by sexual harassment as the cause of action, requiring the employer to bear its tort liability.

 

(Translated by YU Qiming)

 

* WANG Qian ( 王倩 ), Professor at Shanghai University of Political Science and Law. Doctor of Laws.

 

** YU Shulin ( 於舒琳 ), Postgraduate student at the Law School of Tongji University. This paper is the research findings of “Research on the Protection of Personal Information of Workers in the Digital Era” (project approval No. 20BFX190), a general project of the National Social Science Fund of China.

 

1. China Law Review, “Liu v. Social Work Star Sexual Harassment Case Listed — 9th Top Ten Public Interest Litigation Cases Unveiled”.

 

2. If a case has multiple judgments after going through multiple instances, it is counted as one case.

 

3. Tang Fang, “Fulfilling Social Responsibilities and Establishing a Mechanism for the Prevention and Control of Sexual Harassment in the Workplace — Report on the Prevention and Control of Sexual Harassment in the Workplace in China’s Textile and Garment Industries”, Anti-Discrimination Law Review 5 (2018).

 

4. ifeng.com, “2020 Report on the Current Situation of Chinese Women in the Workplace Released: Working Women’s Salary 17% Lower Than Men’s”.

 

5. Civil Judgment (2014) Hang Bin Min Chu Zi No. 1173 of the People’s Court of Binjiang District, Hangzhou.

 

6. Cases where the existence of sexual harassment in the workplace is not determined are mostly disputes over the right to reputation, as the focus of court review is often whether the spread of the sexual harassment incident has resulted in the fact of damage to the litigant’s reputation, with no investigation into whether sexual harassment in the workplace truly exists.

 

7. Civil Judgment (2020) Yue 1972 Min Chu No. 1544 of Dongguan No. 2 People’s Court, Guangdong Province.

 

8. Civil Judgment (2019) Jing 0105 Min Chu No. 12673 of Beijing Chaoyang District People’s Court.

 

9. Civil Judgment (2019) Hu 0110 Min Chu No. 773 of Shanghai Yangpu District People’s Court.

 

10. Civil Judgment (2016) Qiong 9029 Min Chu No. 405 of the People’s Court of Baoting Li and Miao Autonomous County, Hainan Province.

 

11. Civil Judgment (2013) Huang Pu Min Yi (Min) Chu Zi No. 583 of Huangpu District People’s Court of Shanghai.

 

12. Civil Judgment (2012) Huang Pu Min Yi (Min) Chu Zi No. 1592 of Huangpu District People’s Court of Shanghai.

 

13. Civil Judgment (2020) Chuan 01 Min Zhong No. 14094 of Chengdu Intermediate People’s Court, Sichuan Province.

 

14. Civil Judgment (2018) Hu 0104 Min Chu No. 24099 of Xuhui District People’s Court of Shanghai.

 

15. Civil Judgment (2017) Hu 0101 Min Chu No. 16876 of Huangpu District People’s Court of Shanghai.

 

16. Civil Judgment (2017) Su 0591 Min Chu No. 9774 of the People’s Court of Suzhou Industrial Park, Jiangsu Province.

 

17. Civil Judgment (2018) Su 05 Min Zhong No. 7907 of Suzhou Intermediate People’s Court of Jiangsu Province.

 

18. Civil Judgment (2010) Sui Zhong Fa Min Yi Zhong Zi No. 4861 of Guangzhou Intermediate People’s Court, Guangdong Province.

 

19. Civil Judgment (2015) Dong Min Chu Zi No. 13512 of the People’s Court of Dongcheng District, Beijing.

 

20. Civil Judgment (2017) Jing 01 Min Zhong No. 7152 of Beijing No. 1 Intermediate People’s Court.

 

21. Civil Judgment (2017) Hu 0117 Min Chu No. 14018 of Songjiang District People’s Court of Shanghai.

 

22. Civil Judgment (2019) Hu 0115 Min Chu No. 30279 of Pudong New Area People’s Court of Shanghai.

 

23. Civil Judgment (2016) Gui 0103 Min Chu No. 382 of the People’s Court of Qingxiu District, Nanning, Guangxi Zhuang Autonomous Region.

 

24. Civil Judgment (2016) Hu 0105 Min Chu No. 990 of Shanghai Changning District People’s Court.

 

25. Civil Judgment (2019) Yue 19 Min Zhong No. 4806 of Dongguan Intermediate People’s Court in Guangdong Province.

 

26. Civil Judgment (2012) Pu Min Yi (Min) Chu Zi No. 19129 of Pudong New Area People’s Court of Shanghai.

 

27. Civil Judgment (2014) Dong Zhong Fa Min Wu Zhong Zi No. 2268 of Dongguan Intermediate People's Court in Guangdong Province.

 

28. Civil Judgment (2016) Su 0113 Min Chu No. 7132 of Nanjing Qixia District People’s Court, Jiangsu Province.

 

29. Civil Judgment (2019) Yue 06 Min Zhong No. 8281 of Foshan Intermediate People’s Court, Guangdong Province.

 

30. Li Guoguang, Interpretation and Application of Several Provisions of the Supreme People’s Court on Evidence in Civil Procedures (Beijing: China Legal Publishing House, 2002), 462.

 

31. Wu Zeyong, “Civil Litigation Evidentiary Standards in Chinese Law”, Tsinghua Law Journal, vol. 7, no. 1 (2013).

 

32. Civil Judgment (2010) Min Min Yi (Min) Chu Zi No. 7548 of Minhang District People’s Court of Shanghai.

 

33. Civil Judgment (2016) Jing 02 Min Zhong No. 7778 of Beijing No. 2 Intermediate People’s Court.

 

34. Civil Judgment (2015) Sui Zhong Fa Min Yi Zhong Zi No. 2384 of the Intermediate People’s Court of Guangzhou.

 

35. Civil Ruling (2020) Jing 02 Min Zhong No. 6633 of Beijing No. 2 Intermediate People’s Court.

 

36. The problem of sexual harassment against homosexuals and transgender people also exists, and protection against sexual harassment in the workplace also applies to them; it is just that existing cases mostly show sexual harassment of women by men.

 

37. Wang Tianyu, “Logic in Judicial Decisions on Workplace Verbal Sexual Harassment”, Journal of Chinese Women’s Studies 5 (2020).

 

38. For example, Wang Hengtao, “Studies of the Legislation on Sexual Harassment”, Global Law Review 5 (2006); Xue Ninglan, “Gender Analysis of Chinese Workplace Sexual Harassment Laws”, Journal of China Women’s University 6 (2012); Liu Xioanan and Huang Zhouzheng, “‘Beijing +25’ Retrospect and Prospect: The Establishment of Sexual Harassment Prevention Mechanism in the Workplace from the Perspective of Human Rights”, Human Rights 2 (2020).

 

39. Guo Xiaofei, “Is Sexual Harassment Sex Discrimination? An Inquiry from the Perspective of Jurisprudence”, Journal of Chinese Women’s Studies 1 (2021).

 

40. Xie Haiding: “The Development of the Concept of Sexual Harassment in Chinese Law”, Law and Social Development 1 (2021).

 

41. Civil Ruling (2020) Chuan Min Shen No. 4679 of Higher People’s Court of Sichuan Province.

 

42. Wang Cheng, “Thesis on the Judicial and Private Law Regulation of Sexual Harassment Behavior”, Political Science and Law 4 (2007).

 

43. Wang Liming, “Interpretation of Provisions on Sexual Harassment Regulation in the Personality Rights Book of Civil Code”, Journal of Soochow University (Philosophy & Social Science Edition) 4 (2020).

 

44. Lu Jiefeng, “Employer Liability for Sexual Harassment in the Workplace: Expanding on Art. 1010 of the Civil Code”, Journal of Chinese Women’s Studies 5 (2020).

 

45. For example, Tian Ping’an and Luo Dongping, “On the Assignment of the Burden of Proof in Sexual Harassment Cases”, Social Sciences in Guangdong 6 (2006); Cao Yanchun and Liu Xiufen, “Research on Burden of Proof for Cases Involving Sexual Harassment in the Workplace — On the Sharing of the Burden of Proof sharing from the Perspective of Presumption”, Law Science Magazine 6 (2009); Zeng Lingjian, “Evidential Problem in Sexual Harassment Trial and the Countermeasures”, Journal of Shanxi Normal University (Social Science Edition) 1 (2012).

 

46. Wang Tianyu, “Logic in Judicial Decisions on Workplace Verbal Sexual Harassment”.

 

47. Huo Haihong, “Theoretical Reflection on Raising Evidentiary Standards for Civil Procedures”, China Legal Science 2 (2016).

 

48. Wu Zeyong, “Adjudication Methods for Free Evaluation of Evidence in Civil Litigations and Judicial Application”, Journal of Law Application 19(2020).

 

49. Wang Yaxin, Chen Hangping, and Liu Junbo, Teaching Materials on Key Points in the Civil Procedure Law of China (Beijing: Higher Education Press, 2017), 98.

 

50. For example, Cao Yanchun and Liu Xiufen, “Study on Principles for the Attribution of Employer’s Liability for Sexual Harassment in the Workplace”, Journal of Yanshan University (Philosophy and Social Science Edition) 4 (2008); Zhou Yingjiang, “The Applicability of Employers’ Liability in Workplace Sexual Harassment”, Collection of Women’s Studie 5 (2010).

 

51. the Leading Group of the Supreme People’s Court for Work Related to the Implementation of the Civil Code, Interpretation and Application of Tort Liability Book of Civil Code of the People’s Republic of China(Beijing: People’s Court Press, 2020), 239.

 

52. Wang Xianyong, “Legal Regulation on Sexual Harassment in Workplace During the Age of Civil Code”,Law Science 1 (2021).

 

53. sznews.com, “Understanding Guideline on Preventing Sexual Harassment in Shenzhen in One Picture”.