Key takeaways:
° Sexual assault may constitute the crime of rape or forcible indecency and insult, which are clearly stipulated in China’s Criminal Law, however sexual harassment lacks a clear-cut definition under Chinese law.
° Typical cases relating to sexual harassment involve, among others, conduct with sexual implication, conduct that makes others feel disgusted and/or psychologically uncomfortable, or conduct that goes beyond generally accepted wooing between unmarried men and women.
° Though there are not many sexual harassment cases handled by Shanghai courts, the Alibaba incident shows that workplace sexual harassment in China is a horse of different color in reality.
In August 2021, a female employee of Alibaba, the Chinese Internet giant, accused her supervisor of sexual assault. This incident has stirred up heated discussions and media attention about the #MeToo Movement in China.
Sexual assault may constitute the crime of rape or forcible indecency and insult, which are clearly stipulated in China’s Criminal Law. However, as for sexual harassment, there is no clear-cut definition under Chinese law yet.
So, in real-life cases, how do Chinese courts ascertain workplace sexual harassment? Taking the courts in Shanghai as an example, we may know a thing or two about such cases.
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I. Sexual harassment under Chinese legal texts
At present, Chinese law only obliges employers to prevent and stop sexual harassment in the workplace, but fails to define sexual harassment.
Article 1010 of the Civil Code promulgated by China in 2020 defines the term “sexual harassment” as a situation “[w]here a person conducts sexual harassment of another person in the forms of verbal remarks, written language, images, physical behaviors or otherwise against the will of another person, the victim has the right to request the perpetrator to bear civil liability according to the law. Agencies, enterprises, schools, etc. shall adopt reasonable measures on prevention, acceptance, and handling of complaints, investigation, and disposal, etc. to prevent and curb sexual harassment by manipulating official powers and affiliation, etc.”
Incorporating “sexual harassment” into the Civil Code is a ground-breaking achievement of China’s anti workplace sexual harassment campaign.
However, the Civil Code does not specifically define the circumstances of “sexual harassment”.
In fact, back in 2005, the amended Law on the Protection of Women’s Rights and Interests (妇女权益保障法), has clearly provided that “sexual harassment against women shall be prohibited. Women victims have the right to complain to relevant units and departments.”
Article 11 of the Special Provisions on Labor Protection for Female Employees (女职工劳动保护特别规定) in 2012 stipulates that “the employer shall prevent and stop sexual harassment against female employees in the workplace.”
However, these laws and regulations with nationwide applicability all fail to clearly define the term “sexual harassment”.
At present, the definition of sexual harassment can only be seen in local laws and regulations. For example, Article 32 of the “Measures of Shanghai Municipality on the Implementation of the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests” (上海市实施《中华人民共和国妇女权益保障法》办法), amended in 2007, stipulates that “sexual harassment against women in the forms of verbal remarks, written language, images, electronic information, physical behaviors or otherwise shall be prohibited. Women victims have the right to complain to relevant units and departments. “
So, how does the Shanghai court ascertain sexual harassment in practice?
II. Views of the Shanghai court
There are not many sexual harassment cases handled by Shanghai courts, only 75 cases so far, among which the cases involving sexual harassment in essence and requiring ascertainment by the court are even less. Typical examples are as follows:
1. Conduct with sexual implication
In the case “(2019) Hu 0115 Min Chu No. 62266” ((2019)沪0115民初62266号), the court held that “generally speaking, sexual harassment refers to unwelcome actions, gestures, verbal remarks and graphic display with sexual implication other than rape and other violent sex crimes.” Accordingly, the court held that it was difficult to determine whether an act consistent with the definition of sexual harassment had occurred in the case.
2. Conduct that makes others feel disgusted and/or psychologically uncomfortable
In the case “(2020) Hu Min Shen No. 347” ((2020)沪民申347号), the court held that “(the perpetrator) has physical contact with several female colleagues and expresses inappropriate remarks, which causes disgust, psychological discomfort and burden to many female colleagues”, which may constitute sexual harassment.
3. Sensual language
In the case “(2017) Hu 0101 Min Chu No. 16876” ((2017)沪0101民初16876号), the court held that “it is indeed inappropriate to ask female colleagues about personal information unrelated to work with sensual language”, but “it is insufficient to constitute sexual harassment”.
4. Conduct that goes beyond generally accepted wooing between unmarried men and women
In the case “(2020) Hu 0115 Min Chu No. 4824” ((2020)沪0115民初4824号), the court held that “although the female colleague does not agree to date with the guy, the guy secretly takes her photos in the workplace and posts them on WeChat Moments, calling the female colleague ‘wife’ and ‘my girl’. This conduct goes beyond generally accepted wooing between unmarried men and women”, and therefore constitutes “sexual harassment”.
III. Our comments
The number of cases tried by Shanghai courts may not be big; however, the Alibaba incident shows that workplace sexual harassment in China is a horse of different color in reality. Thus, it is likely that many victims have not yet brought a sexual harassment suit before the court.
China’s Civil Code specially provides for sexual harassment, which reminds the public to resort to law in case of such incidents to a certain extent. We will also keep following the latest progress of such cases.
Photo by tommao wang on Unsplash
Contributors: Meng Yu 余萌
