On September 5, 2018, the PRC National People’s Congress issued a new draft of Several Sections of the PRC Civil Code (the “Draft”) for public comments until early November. The Draft would provide heightened protection against sexual harassment on a national level and would also impose more obligations on China employers. Below are a few highlights of the proposed law.
First, and perhaps most importantly, Article 790 defines sexual harassment as unwelcome behavior against another person by sexual language or actions or by sexual advances against a subordinate. Though a few China locales formally define sexual harassment in their local regulations — for example, Jiangsu Province’s provincial regulations on the protection of women’s rights define sexual harassment as harassment against women in any form of sexual content or sex-related language, words, images, sounds, and body movements — China does not have any national law defining sexual harassment. That means these PRC Civil Code revisions would constitute China’s first national definition for sexual harassment.
The wording of this sexual harassment definition would greatly increase protection against sexual harassment. Before the Draft, the national laws that cover sexual harassment limit protection to only female employees. For example, the Law on the Protection of Women’s Rights and Interests prohibits sexual harassment against women and it further says female sexual harassment victims may file a complaint with their employer and/or with the authorities. The Special Rules on the Labor Protection of Female Employees require employers prevent and stop sexual harassment against female employees in the workplace. The local rules also protect only female employees against sexual harassment. The Draft would extend sexual harassment protection to include male employees for the first time.
The Draft also makes clear employers will need to take reasonable (whatever that means) measures to prevent sexual harassment in their workplaces, create procedures for employees to file sexual harassment complaints, and create an internal company system for handling sexual harassment complaints. Though the Draft is not yet very detailed about any of this, it would still be a substantial improvement over the current law which says little more than that employers must seek to prevent and stop sexual harassment against female employees in the work place. This Draft is a clear signal that China is getting tougher on enforcement against employers that fail to fulfill their obligations under the sexual harassment protection law.
With its increased protections against sexual harassment, the Draft should serve as a clarion call to China employers to increase the protections they provide against sexual harassment in their workplaces. In other words, employer risks for not having proper sexual harassment policies/rules/measures in place to deal with sexual harassment are quickly increasing. Though the Draft has not yet been finalized, now would be a good time to audit your employment situation to make sure you have an enforceable and practical set of company rules and policies on anti-sexual harassment that complies with both China’s national and local laws (as noted above, your locale may already have more developed and detailed regulations than the national requirements and you must follow them).
#MeToo has gone international and any employer that ignores this is asking for trouble.