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.
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.
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:
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.
Daniel Tang, Partner at Withers Hong Kong and Joyce He, Senior Legal and Tax Manager at Withers Hong Kong