Abstract
Sexual harassment harms individual dignity, impairs workplace equality and workers’ interests, and is a form of employment and occupational discrimination. China has ratified the ILO Discrimination (Employment and Occupation) Convention No. 111. Recent years have seen some icebreaking legislation in the field of workplace sexual harassment. In terms of law enforcement, the judge’s gender value and recognition of sexual harassment have a great impact on the outcome of the case. However, some bias in blaming the victim remains in the current social and cultural context. Most employers have not yet established a code of conduct for prevention of sexual harassment. In the future, China needs not only to further overhaul legislation, but also to reinforce the implementation mechanism and instruments for prevention of sexual harassment.
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Notes
- 1.
See ILO CEACR 1988.
- 2.
See ILO CEACR 1996.
- 3.
Weisberg 1996, at pp. 725–732. Chinese scholars have also pointed out that the concept of sexual harassment and its two categories were actually proposed by two American scholars: Lin Farley and Catherine Mackinnon. Lin Farley’s 1978 masterpiece is the book “Sexual Shakedown: the Sexual Harassment of Women on the Job”, published a year before MacKinnon’s book. See Zhao 2006, at p. 23.
- 4.
In modern Chinese, the word “rogue” (流氓) has two meanings: one refers to individuals who are jobless or commit criminal offences and other misdemeanours, the other means molesting women and other bad behaviour. See CASS Institute of Linguistics Dictionary, 1981, at p. 717. In this paper, so-called “bullying” refers to the abovementioned indecent behaviour towards others. [Criminal Law of The People’s Republic of China] 中华人民共和国刑法 (zhōng huá rén mín gòng hé guó xíng fǎ), 1979 and, [Regulations on the People’s Republic of China on Administrative Penalties for Public Security] 中华人民共和国治安管理处罚条例 (zhōng huá rén mín gòng hé guó zhì ān guǎn lǐ chǔ fá tiáo lì), 1986 both had provisions for insulting women as hooliganism, breach of which resulted in criminal and administrative sanctions. In 1997, the revised Criminal Law of China abolished hooliganism; it is now an offence to act “indecently towards” or to “insult…a woman by force” (Article 237; see also Article 241). In 2006 [Public Security Administration Punishments Law of the People’s Republic of China] 中华人民共和国治安管理处罚法 (zhōng huá rén mín gòng hé guó zhì ān guǎn lǐ chǔ fá fǎ) imposed administrative penalty measures for many acts, such as sending obscene, abusive, threatening or other kinds of information, interfering with the normal life of others; molesting others or intentional nudity in public places and other aggravated assaults (Article 42).
- 5.
- 6.
The survey found that 142 out of 169 women claimed that they had suffered various forms of sexual harassment, accounting for 84.02 % of the total. 107 individuals said they had suffered sexual harassment more than twice, accounting for 63.31 % and 152 individuals contended that they were aware that many females around them had been sexually harassed at one time or another. Tang 1995, at p. 31.
- 7.
[Constitution of the People’s Republic of China] 中华人民共和国宪法 (zhōng huá rén mín gòng hé guó xiàn fǎ), 1982 (as revised in 2004).
- 8.
[Law on the Protection of Rights and Interests of Women of the People’s Republic of China] 中华人民共和国妇女权益保障法 (zhōng huá rén mín gòng hé guó fù nǚ quán yì bǎo zhàng fǎ), 1992 (as revised in 2005).
- 9.
[General Principles of the Civil Law of the People’s Republic of China] 中华人民共和国民法通则 (zhōng huá rén mín gòng hé guó mín fǎ tōng zé), 1986.
- 10.
[Labour Law of the People’s Republic of China] 中华人民共和国劳动法 (zhōng huá rén mín gòng hé guó láo dòng fǎ), 1994.
- 11.
[Labour Contract Law of the People’s Republic of China] 中华人民共和国劳动合同法 (zhōng huá rén mín gòng hé guó láo dòng hé tóng fǎ), 2007; [Employment Promotion Law of the People’s Republic of China] 中华人民共和国就业促进法 (zhōng huá rén mín gòng hé guó jiù yè cù jìn fǎ, 2007. These two laws came into force simultaneously on 1 January 2008.
- 12.
[Employment Promotion Law of the People’s Republic of China] 中华人民共和国就业促进法 (zhōng huá rén mín gòng hé guó jiù yè cù jìn fǎ), 2007, Article 27 provides that “the State shall guarantee that women and men enjoy equal labour rights.”
- 13.
The plaintiff worked in a computer company and was sexually harassed many times by a male department manager. She therefore resigned. Being unemployed for a year and a half, she had been applying for job opportunities in many other computer network companies, but all her applications were rejected. When she was informed that it was the former department manager who used his influence in the industry to interfere with her re-employment, she filed a defamation suit with a district court in Beijing. However, the court held that the plaintiff had provided insufficient evidence, and could not prove that the defendant’s conduct could constitute a violation of her reputation. Therefore, the judge did not rule for the plaintiff. See Zhang and Fan 2003.
- 14.
The plaintiff was a female teacher. She alleged that, from the beginning of the second half of 2000, the defendant, the deputy director of her department, harassed her during a work discussion. During a trip organized by the school in 2001, the defendant invited her to his room at 11:00 pm to discuss work. Her private parts were touched and she was forced to kiss. Thereafter, as long as no one else was in the office, the defendant brazenly harassed her, touched her hands and shoulders, hugged her round the waist, and also sent her indecent text messages. A district court in Wuhan found that the plaintiff had established the facts as to harassment by the defendant and ordered the defendant to apologise to the plaintiff and pay compensation for mental suffering by way of damages in the sum of 2,000 Chinese yuan. The defendant appealed to the Intermediate People’s Court. In October 2003, the appeal court upheld the ruling of an apology by the defendant to the plaintiff, but found that the defendant’s conduct did not cause serious harmful consequences for the plaintiff, and therefore revoked the First Instance court’s verdict on compensation. See Hou and Li 2003.
- 15.
[Law on the Protection of Rights and Interests of Women] 中华人民共和国妇女权益保障法 (zhōng huá rén mín gòng hé guó fù nǚ quán yì bǎo zhàng fǎ), 2005, Article 58.
- 16.
The new [Special Rules on the Labour Protection of Female Employees] 女职工劳动保护特别规定 (nǚ zhí gōng láo dòng bǎo hù tè bié guī dìng), 2012, were reviewed and passed by the No. 200 standing meeting of the State Council on 28 April 2012, and came into force on the same day.
- 17.
See Yang and Zhang 2005, at p. 16.
- 18.
[Civil Procedure Law of the People’s Republic of China] 中华人民共和国民事诉讼法 (zhōng huá rén mín gòng hé guó mín shì sù sòng fǎ), 1991 (as second revised in 2012).
- 19.
The author believes that employers neglect to fulfil the obligation to prevent sexual harassment, and their failure may bring consequences which include: sharing liability with perpetrators toward the victim; whereas employees have, as a result of sexual harassment, been transferred, or paid reduced benefits, dismissed or resigned, employers bear responsibility for corrective remedies; when the harm expands due to the fault of sexual harassment incidents, employers bear the responsibility to pay punitive damages to the victims. See Tang et al. 2012, at p. 170.
- 20.
See Beijing Youth Daily 2006.
- 21.
As to whether the convention can be directly applicable in respective courts in various countries, provisions of countries differ from each other. In China, how to apply the international conventions ratified by China, including CEDAW, has not been clearly defined. It is usually transformed into national law in order to be applicable. The Chinese Constitution does not clearly offer a mechanism for applying the Convention, but nor does it prohibit the court from applying the Convention directly. As for a general recommendation, strictly speaking, States parties are not legally bound, but more and more countries and courts have invoked the general recommendations in adjudicating cases. Yet, under this trend, it is outdated to emphasize that general recommendations are not law.
- 22.
For example, in 1980 the U.S. Equal Employment Opportunity Committee defined sexual harassment in its Guidance on Workplace Sexual Harassment as: unwelcome sexual advances and favours, and other verbal or physical harassment of a sexual nature. In 1990, the Council of the European Union, in its decision on protecting workplace dignity for both men and women, addressed sexual harassment as “an act of a sexual nature against the will of the party, or a sexually based act that has an unfair impact upon male and female employees in the workplace”. Jiao 2002, at p. 20.
For example, see the conception by the Committee of Experts on the Application of Conventions and Recommendations: “The terms ‘sexual harassment’ or ‘unsolicited sexual attention’ include any insult or inappropriate remark, joke, insinuation and comment on a person’s dress, physique, age, family situation, etc; a condescending or paternalistic attitude with sexual implications undermining dignity; any unwelcome invitation or request, implicit or explicit, whether or not accompanied by threats; any lascivious look or other gesture associated with sexuality; and any unnecessary physical contact such as touching, caresses, pinching or assault. In order to constitute sexual harassment in employment, an act of this type must, in addition, be justly perceived as a condition of employment or precondition for employment, or influence decisions taken in this field, and/or affect job performance. Sexual harassment may also arise from situations which are generally hostile to one sex or the other.” ILO CEACR 1996, at para. 39.
- 23.
In the case of Ellison v. Brady, the Ninth Circuit Court of the United States Court of Appeals firstly used the “reasonable woman standard”, see Neville 2004 in Dong (trans), at p. 255.
- 24.
This interview was conducted in 2005 under the joint project – sexual harassment research in the workplace – led by the gender and law research centre of the Chinese Academy of Social Sciences and the anti-domestic violence net in the China Law Society. See Research project on Sexual Harassment in the Workplace, 2009, at pp. 23 and 28.
- 25.
Research project on Sexual Harassment in the Workplace, 2009, at pp. 23–28.
- 26.
[Regulations on Labour and Social Security Supervision] 劳动保障监察条例 (láo dòng bǎo zhàng jiān chá tiáo lì), 2004.
- 27.
For instance, the Equal Opportunities Commission (EOC) Hong Kong, which was established in 1996 and specializes in anti-discrimination matters, is one of its specific statutory government bodies in the field of anti-discrimination.
- 28.
On 1 January 2013, the [Shenzhen Special Economic Zone to promote gender equality regulations] 深圳经济特区性别平等促进条例 (shēn zhèn jīng jì tè qū xìng bié píng děng cù jìn tiáo lì) came into effect, stipulating that it is urgent to establish gender equality promotion agencies in Shenzhen. One of the responsibilities of the agency is to receive complaints, deal with gender discrimination disputes, and assist complainants in the people’s courts.
- 29.
Women’s Studies Institute of China 2013, at section 7.
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Xue, N. (2016). Combating Sexual Harassment at Work in China: Legislation, Practice and Social Context. In: Liukkunen, U., Chen, Y. (eds) Fundamental Labour Rights in China - Legal Implementation and Cultural Logic. Ius Gentium: Comparative Perspectives on Law and Justice, vol 49. Springer, Cham. https://doi.org/10.1007/978-3-319-23156-3_8
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