In China, sexual harassment is a sensitive topic. Under the influence of the traditional conservative culture, women feel ashamed to talk about it and remain silent. With the flourishing feminist consciousness and improvement of women's social status, women tend to increasingly seek justice and protect themselves. Nowadays, the issue of sexual harassment is becoming more and more serious and widely discussed in the whole society.
Recent Example(s) of (a) Sexual Harassment Scandal(s)
In 2010, the founder and former president of Shenzhen Sunmoon Education Group was sentenced to four years in jail for raping his subordinate and pay the victim about 600 USD in "compensation". However, employees disclosed that there were more silent victims.
In 2016, a senior manager at China Minsheng Bank Corp Beijing branch has been accused of trying to force a female subordinate to make a sexual encounter. As the result, the manager was dismissed on the grounds of disciplinary punishment and was asked to apologize.
Legal Definition of Sexual Harassment
According to the Law of the People's Republic of China on the Protection of Women's Rights and Interests, sexual harassment against women is banned. The victims shall be entitled to complain to the employer or relevant administrative officers.
The legal definition of sexual harassment is contained in provisions of some local regulations. For example, according to the Measures of Beijing Municipality for Implementing the Law of the People's Republic of China on the Protection of Rights and Interests of Women (2009 Revision), any sexual harassment of a woman against her will in forms of languages, texts, images, electronic information or physical actions that contain sexual contents or relate with sex is prohibited.
It is worth mentioning that there is still a blank space for the protection of men from sexual harassment.
Sexual Harassment in the Workplace
There is no legal definition of sexual harassment in the workplace. According to the local regulations in Shenzhen, it is prohibited to annoy, insult or have indecent behaviours towards women with the advantages of position, employment and other conditions.
A woman who suffered from sexual harassment may file a complaint with her employer, the employer of the perpetrator, the women's federations at various levels of municipality and the department concerned, or directly file a lawsuit to the people's court. After receiving the complaint, the woman's employer, the woman's federations at various levels of this municipality and the department concerned shall take measures to criticize and educate the person being accused, to mediate the two sides or to support the complainant to file a lawsuit. Employers and the public shall, according to the needs, take measures to prevent and stop sexual harassment of women.
According to the No. 619 Order of the State Council, the Special Rules on the Labour Protection of Female Employees, adopted in 2012, employers shall prevent and prohibit sexual harassment of female employees in their workplaces. Based on the local regulations, it is compulsory for companies to take measures such as constructing appropriate environment or establishing necessary investigation and complaint mechanism to prevent sexual harassment against women.
The employer bears the responsibility to provide a healthy and safe workplace for the employees Since there is no doubt that sexual harassment is harmful to the harmony of the workplace.
Potential Liabilities and/or Sanctions that could arise from sexual harassment in the Workplace (for both the harasser and the employer)
The employer is liable in civil law in case of his fault, on the grounds that the employee suffers physical, and/or mental and reputation damage.
Based on laws and regulations, working rules and employment contracts, the harasser's employment can be terminated unilaterally on the grounds of serious violations of labour discipline or the employer's rules and regulations, whether he is a repeated offender or not.
According to the Public Security Administration Punishments Law, if the harasser has sent obscene or offensive data several times, the harasser shall be detained for no more than 5 days or shall be fined no more than 500 yuan. If the circumstances are relatively serious, he shall be detained for no less than 5 days but no more than 10 days, and may be concurrently fined no more than 500 yuan.
Interesting Developments or Cases to Report in China
Jiangsu province is drafting amendments to the measures on Implementation of the Special Rules on the Labour Protection of Female Employees in 2017. Article 20 provides that the employer shall take the following measures to protect female employees from sexual harassment.
Set up rules and regulations to forbid sexual harassment in the workplace;
Launch a training program of sexual harassment prevention;
Provide a safe workplace against sexual harassment;
Deal with complaints immediately and protect the employee's privacy;
Other measures to protect female employees.
TOP TIPS for International Employers with a Workforce in China:
It is the employers' legal responsibility to prevent any sexual harassment. If the employer has not fulfilled his duty, he shall undertake the responsibility of compensation.
Once the employer receives a complaint or report, he shall stop the harassment immediately, start an investigation, and punish the harasser on the basis of the working rules, by warning, salary cut, position transfer, suspension or employment termination, etc..
The employer shall protect the employees from all sources of sexual harassment, and transfer the employee to another job position when required.
The employers shall set up definition of sexual harassment in the workplace, the sanctions towards the harassers, the mechanism of compliance and disputes resolution, the protective mechanism for the witnesses and whistle-blowers, and responsible institutions for education.
The monitoring system is widely used in enterprises nowadays and the surveillance video can be used as evidence. However, it is also the employer's responsibility to use the monitoring system appropriately and protect the privacy of all employees.