Say No to Sexual Harassment

Maggie Jia

Maggie Jia is a partner and heads the firm’s Employment & Compliance practice. She holds a bachelor’s degree from the East China University of Political Science and Law in Shanghai (China) and a master’s degree in Economic Law from the Friedrich Schiller University Jena, in Germany. She passed the China Bar examination in 2012. Prior to joining DaWo Law Firm, she worked in Shanghai and gained experience at a well-known Chinese law firm and at De Wolf Law Firm Shanghai.

Shanghai Yangpu People’s Court tried the first civil case of sexual harassment claiming tort liability on March 8, 2021. According to this landmark trial, the defendant infringed the plaintiff’s personality rights by sending obscene massages against the plaintiff’s will, causing damages. The defendant was found liable for all damages, which totaled CNY 98000, including expenses for medical treatment, absence from work, health care, transportation, lawyer’s fees, emotional distress damages, etc. Additionally, the defendant must extend an apology to the plaintiff.

Article 1010 of the Civil Code is one of the essential bases of this trial. That section stipulates that a person who has been sexually harassed, in the form of verbal or written language, images, physical conduct or otherwise, shall have the right to seek civil liability against such another person. The pronouncement of the judgment in this case is represents an actual application of this regulation on sexual harassment in judicial trails and should attracts public attention.

Also important is the fact that the second part of Article 1010 additionally indicates that state agencies, enterprise, schools, and other organizations must take reasonable measures in terms of prevention, acceptance, and handling of complaints, as well as investigation and handling of cases to curb sexual harassment, whether through abuse of an official position, superior-subordinate relationship, or otherwise.

Especially for an enterprise, it is advisable to set up policies and systems to prevent and address matters of sexual harassment, and to make such polices a significant part of its compliance and training framework. Even though there have recently not been any major consequences for failures to set such policies or systems, we can learn from the previous cases relevant to sexual harassment issues that numerous companies are faced with serious impacts, including but not limited to economic compensation, tension in employment relationship, sharpened internal conflicts, damages of company reputation, employment disputes, accusations, and strikes where companies have not dealt properly with these matters.

Best practice for enterprises should include setting up internal rules and regulations to addreess behaviors and activities which are definitely deemed as serious sexual harassment violations and adding a catch-all clause regulating actions against the public order and good morals. Additionally, a clear notice to employees and regular compliance trainings about rules and regulations are necessities.

At the beginning of this year, a proposal named “Strictly Abide by The Scale of Interactions Between Opposite Sex and Refusal of “zero” Distance in Workplace” by ICBC listed ten standards of working interaction and communication, such as avoiding having one-on-one dinners, staying in a closed space with only one other person, paying attention appropriate in-person communication, engaging only in serious and dignified online communications, controlling the time span of communication, and avoiding physical contact. This could be considered as an example of an attempt to set up an internal policy to prevent sexual harassment, even though the proposal itself is widely considered quite controversial.

We would also advise enterprises to specify rational and confidential measures for handling complaints and investigations. For example, a company might create an exclusive email address to receive complaints and accusations from employees. Also, pay more attention to evidence collection and preservation while handling a case. If necessary, the enterprise should ask help from a third party, such as a lawyer, the Women’s Committee, the police, etc.

Please let us know if you have any questions or concerns related to the important topics discussed here.