13 May 2021
In the wake of a sexual harassment claim by a young woman against one of China’s most popular TV hosts, Zhu Jun, sexual harassment in the workplace has drawn significant attention and subject to close scrutiny by the general public.
Regulatory Framework: A Brief Overview
The trial of the TV host case highlights the lack of a unified and detailed legislative framework in the PRC relating to sexual harassment.
China has very few laws and regulations concerning sexual harassment. For almost two decades, the primary legislation used to be the PRC Law on Protection of Women’s Rights and Interests (effective in 1992 and revised in 2018), which prohibits sexual harassment against women and provides victims a right to file complaints to their employers or with law enforcement authorities.
In 2012, the State Council issued the Special Provisions on Labor Protection for Female Employees to prevent and stop sexual harassment against female employees.
But until the new PRC Civil Code coming into effect on 1 January 2021, there was no clear definition of what constitutes sexual harassment or specific obligations to be undertaken by employers in this area. The new Civil Code provides the first statutory definition of sexual harassment and expands the scope of victims to include men. It also imposes obligations (though still quite general) for employers to take both pre- and post-incident measures to prevent and stop sexual misconduct in the workplace.
However, all these laws and regulations do not provide detailed implementation rules. In particular, it is unclear whether or how employers can be held liable for failing to prevent sexual misconduct and what penalties will be imposed on the offenders.
Highlights of the Shenzhen Guideline
Against this background, Shenzhen issued the Shenzhen Guideline for Preventing and Dealing with Sexual Harassment (the “ Guideline “) earlier this year, which is the first-of-its-kind local government guide on preventing and dealing with sexual harassment in workplaces and public places.
Highlights of this Guideline are as follows:
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It is jointly issued by nine governmental departments of Shenzhen, including the Women’s Federation, Education Bureau, the Public Security Bureau, the Human Resources and Social Security Bureau and the Shenzhen Intermediate People’s Court. That means the police, labor authorities and courts will very likely adopt and follow the guide when dealing with sexual harassment cases in the workplace.
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It provides much-needed details for implementation within the existing legal framework. For example, it sets out three core elements that constitute sexual harassment, namely: first, the act is of a sexual nature; second, it is against the victim’s will or unwelcomed by the victim and third, the conduct infringes upon the victim’s personality right, causing the victim psychological discomfort or threatened, or leads to an unfriendly working or studying environment for the victim.
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Specific disciplinary sanctions, such as issuing an apology, demotion, formal warning, dismissal and reporting to government authorities for blacklisting, are stipulated as applicable depending on the seriousness of the incident.
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It requires government agencies, enterprises, schools and other institutions to establish an internal department to take charge of preventing and dealing with sexual harassment, formulate a system for prevention and control of sexual harassment, conduct training, and handle complaints.
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It exempts employers from liability if they have adopted reasonable measures to prevent and handle sexual misconduct.
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It comes with a 6-page sample of “internal regulations” for dealing with relevant incidents, which requires employers to, among other things, (i) actively deal with relevant incidents after becoming aware of their occurrences, regardless of whether the victims file complaints, (ii) keep written records of complaints, which should be raised within 3 years; (iii) form an investigation team to interview the complainant, the alleged wrong-doer and witnesses, if a preliminary assessment finds the complaint creditable; and (iv) satisfy the minimum content requirements of investigation reports. The sample regulations also impose confidentiality obligations on the parties involved, and expressly authorize a party aggrieved by the investigation result to either request an internal review by a “higher-level organ”, or challenge the result in courts.
Our Observation
Though the Guideline is just a local policy in Shenzhen, it is expected that other cities will likely follow suit to tackle the growing number of reported incidents of sexual harassment in workplaces and public places.
From the employers’ perspective, the lack of national statutory implementation rules requires them to be more proactive to formulate and implement specific and effective rules, lay out clear procedures for making complaints, their investigation and handling. Most importantly, the lack of clear internal regulations could potentially restrict employers from sufficiently disciplining wrong-doers even when their misconduct has been substantiated. As part of this process, companies should also consider providing regular training for employees and help create an environment to prevent and deter sexual harassment.
For further information, please contact:
Daniel Tang, Partner, Withersworldwide
daniel.tang@withersworldwide.com
