Preventing sexual harassment in the workplace

01 The statutory rules

As early as 2005 sexual harassment was written into the Law on the Protection of the Rights and Interests of Women, Article 40 of which provided:

"It is prohibited to sexually harass women. A woman who has been harassed has the right to complain to her employer and to the relevant authorities."

The Special Rules on the Labor Protection of Female Employees, adopted in 2012, imposed on employers a duty to prevent harassment of women employees.

In the workplace, an employer shall prevent and stop sexual harassment of women employees.

The Civil Code of 2020 went further and made clear that an enterprise should adopt reasonable measures of prevention, of receiving complaints and of investigation and handling, which completed the legal framework for preventing and regulating harassment at work.

In 2023 the newly revised Law on the Protection of the Rights and Interests of Women added more detailed provisions, turning what had been statements of principle into workable rules and putting the emphasis on both preventing and responding to harassment.

Article 23 identifies the forms the conduct may take: "It is prohibited, against a woman's will, to sexually harass her by words, writing, images, physical conduct or other means." Article 25 requires an employer to take the necessary measures to prevent and stop harassment of women. Article 80 goes further and makes clear the legal liability of an employer that fails in that duty.

On this provision, harassment is not limited to overt physical conduct: improper remarks to a woman employee, or a crude joke sent to her, may equally be found to be harassment, which lowers the threshold for such a finding considerably.

The text of the provisions

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Law on the Protection of the Rights and Interests of Women

Article 23 It is prohibited, against a woman's will, to sexually harass her by words, writing, images, physical conduct or other means.

A woman who has been harassed may complain to the relevant entity or to a state organ. The entity or organ receiving the complaint shall deal with it promptly and inform her in writing of the outcome.

She may also report the matter to a public security organ, or bring a civil action in a people's court requesting that the person responsible bear civil liability in accordance with law.

Article 25 An employer shall take the following measures to prevent and stop sexual harassment of women:

(1) to adopt rules prohibiting sexual harassment;

(2) to designate the body or the person responsible;

(3) to carry out education and training on preventing and stopping harassment;

(4) to take the necessary security measures;

(5) to set up complaint hotlines, letterboxes and the like, so that complaint channels are open;

(6) to establish and improve investigation and handling procedure, deal with disputes promptly and protect the privacy and personal information of those involved;

(7) to support and assist a woman who has been harassed in defending her rights in accordance with law and, where necessary, to provide her with counselling;

(8) other reasonable measures for preventing and stopping harassment.

Article 80 Where a person sexually harasses a woman in violation of this Law, the public security organ shall criticise and educate that person or issue a warning notice, and the person's employer shall impose a sanction in accordance with law.

Where a school or an employer, in violation of this Law, fails to take the necessary measures to prevent and stop harassment, so that a woman's rights are infringed or the social effects are bad, the authority above it or the competent department shall order it to correct; where it refuses to correct, or the circumstances are serious, a sanction shall be imposed in accordance with law on the person directly in charge and on the other persons directly responsible.

Civil Code

Article 1010 Where a person sexually harasses another against that person's will by words, writing, images, physical conduct or other means, the person harmed has the right to require the person responsible to bear civil liability in accordance with law.

State organs, enterprises, schools and other entities shall take reasonable measures of prevention, of receiving complaints and of investigation and handling, so as to prevent and stop harassment committed by taking advantage of authority, a relationship of subordination or the like.

02 A model workplace policy

On International Women's Day this year, the Ministry of Human Resources and Social Security, the National Health Commission and four other departments jointly released the System for Eliminating Sexual Harassment in the Workplace (Model Text) and the System for the Special Protection of Women Employees in the Workplace (Model Text). They turn the provisions above into workable rules, carrying the law on the page into the law in practice, and give employers a guide they can read, follow and apply.

The System for Eliminating Sexual Harassment in the Workplace (Model Text) has 20 articles, and its general provisions define sexual harassment.

"Conduct that, against another person's will, causes that person discomfort by prompting associations of a sexual nature, whether through words, expressions, gestures, writing, images, video, voice, links or any other means, and whether or not the person responsible had a harassing or other improper purpose or intent."

The specific provisions deal with the employer's public commitment, with publicity and training on prevention, with complaints by employees, with investigation and handling, and with the participation of trade unions in supervision. The model text also instructs the employer to keep complainants and the handling of a case confidential, to protect personal privacy and, by such steps as adjusting work assignments, to avoid causing further harm to the person affected.

The System for the Special Protection of Women Employees in the Workplace (Model Text) has 26 articles and lists, item by item, protection in employment, in wages and benefits, in maternity and in occupational safety and health. To keep normal production in the workplace, it also gives guidance on the procedure to be followed.

The Supreme People's Court, responding to social concern and to issues arising in practice, has issued its 32nd batch of guiding cases. Guiding Case No. 181 shows that where an employer's rules provide a mechanism for preventing harassment and designate a manager responsible for it, and that manager fails to perform the duty, the failure amounts to a serious breach of the rules and the employer is entitled to terminate the employment contract.

03 Where responsibility lies

An employer should, in accordance with Article 1010 of the Civil Code and the Law on the Protection of the Rights and Interests of Women, and in the light of its own circumstances, adopt detailed and effective measures against harassment, and aim through sensible policy design to bring the whole workforce into a common effort against it.

An employee who meets harassment should be ready to say no, to stop the conduct from developing or recurring by a firm and clear response, and to keep the evidence so as to protect his or her lawful rights.

A manager, when a subordinate meets harassment, should likewise perform the duty the employer's rules place on managers, neither concealing nor shielding the conduct, and should support the subordinate in resisting it in an appropriate way.