Time to Review Your Policies Against Workplace Sexual Harassment in China

As the #MeToo movement continues to gain momentum around the world, the Special Regulations on Labor Protection of Female Employees of Jiangsu Province in China took effect on July 1, providing for the first time in China the detailed requirements for employers to establish internal policies and systems against sexual harassment. Employers in China should review their anti-sexual harassment policies and practices in light of these developments.

The anti-sexual harassment or #MeToo movement has spread quickly across the world. The movement has not taken hold in the same way across Asia as it has in the West, but as Western multinationals move greater numbers of employees to and from Asia, it is becoming increasingly important to provide formal training to Asia-based workforces on sexual harassment and retaliation provisions. Many Western company’s values and codes of conduct contain these core principles, but few companies provide in-depth training on what these provisions mean to the company and for the employees. Notably, despite the lack of public groundswell behind the #MeToo movement in the People’s Republic of China (PRC) (for reasons beyond the scope of this article), sexual harassment continues to plague female employees, and more too often than not, multinational employers have neglected to provide formal training on sexual harassment to their Asian, and Chinese workforce, in particular.

The awareness among the female workforce in the PRC is increasing, and the laws and regulations on sexual harassment have also been evolving. As background, the PRC does not have a unified law regarding sexual harassment. The first law to explicitly prohibit sexual harassment, the Law for the Protection of Women’s Rights and Interests of the People’s Republic of China (Women’s Protection Law), took effect on December 1, 2005.[1] The Women’s Protection Law guarantees women the right to be free from sexual harassment. However, it neither defines nor provides any guidance as to what is “sexual harassment.”[2]

This LawFlash reviews what constitutes sexual harassment across various jurisdictions in the PRC and focuses on the latest development in this regard in Jiangsu Province. (The cities of Suzhou and Nanjing are located in Jiangsu Province.) On July 1, 2018, the Special Regulations on Labor Protection of Female Employees of Jiangsu Province (Jiangsu Special Regulations) took effect, and for the first time in the PRC, they provide detailed requirements for employers to establish internal policies and systems against sexual harassment.[3]

Local Regulations Dictate What Constitutes Sexual Harassment

To date, no national law provides a definition of “sexual harassment.” Rather, as is common in the PRC legal regime, the provinces and municipalities across the country are given the deference and discretion to define and enforce what should be covered by the national law. The local regulations in Beijing, for example, prohibit “any sexual harassment against a woman by means of language, words, images, electronic information or bodily actions related to sex or containing sexual content against her will.”[4] The regulations in Shanghai, Jiangsu Province and Guangzhou provide similar definitions.[5] Under all of these local rules, sexual harassment conducted only by males against females is prohibited.

The local regulation in Shenzhen, a municipality in Guangdong Province, provides a more detailed definition. According to this definition in the Shenzhen Ordinance, employers must prohibit and address “any sexual harassment, whether explicit or implicit, by means of actions, language, characters, images, electronic information related to sex or containing sexual content, committed against another’s will by utilizing one’s position, employment or other advantages as a condition to exchange interests in relation to hiring, promotion, salary, award, etc.”[6] Unlike most national and local statutes that prohibit sexual harassment only against female employees, the Shenzhen Ordinance does not limit its scope around the victim’s gender, and protects both male and female employees from workplace sexual harassment.[7]

The Shenzhen Ordinance is in line with the 2015 amendment of the PRC Criminal Law, which includes sexual offenses against males in the crime of “indecent assault.”[8] Before the enactment of this amendment, sexual offenses against males (whether by males or females) were rarely punished under the Criminal Law, unless the offense caused physical injury to the victim.[9] The increased number of reported cases of sexual offenses by males against males likely prompted the change in the law to include male victims.[10] Given the growing importance to protect male and female employees alike from workplace sexual harassment, it is likely that more and more local regulations will follow Shenzhen’s lead and cover males in the future.

Affirmative Obligations of Employers to Prevent and Prohibit Sexual Harassment and the Enhanced Requirements in Jiangsu Province

The Women’s Protection Law did not itself provide affirmative anti-sexual harassment obligations for employers. Instead, some provinces and municipalities required employers to take actions to prevent and prohibit sexual harassment of female employees.[11] It was not until April 2012 that the prevention and prohibition of sexual harassment of female employees became an affirmative obligation of all employers in the PRC.[12] All of these local or national statutes, however, failed to provide any detail as to what employers specifically needed to do to comply.

Now, with the issuance of the Jiangsu Special Regulations, China has detailed rules for the first time on the actions that employers of personnel in Jiangsu Province must take. These requirements include the following:

• Establishing rules and regulations against workplace sexual harassment
• Providing education and training to prevent and prohibit sexual harassment
• Providing a working environment free from sexual harassment
• Setting up clear communication channels for complaints, and handling complaints in a timely manner while protecting the privacy of the parties involved
• Taking other measures to prevent and prohibit sexual harassment of female employees[13]

Further, Article 43 of the Ordinance for Protection of Women’s Rights and Interests of Jiangsu Province, which took effect on June 1, 2018 (Jiangsu Ordinance), requires employers in Jiangsu to create “necessary investigation and complaint systems” to prevent and prohibit the sexual harassment of females.[14] The Jiangsu Ordinance does not limit the protections to females employees and therefore arguably should be interpreted to cover third parties, such as female customers and visitors. Further, it is likely that employers registered in locations outside of Jiangsu Province will be subject to the anti-sexual harassment requirements under the Jiangsu Special Regulations and the Jiangsu Ordinance if they engage employees who physically work or are based in Jiangsu Province.[15] Notably, neither the Jiangsu Special Regulations nor the Jiangsu Ordinance set a deadline for employers to comply.

Pursuant to these developments, companies that hire employees in Jiangsu Province should establish a comprehensive anti-sexual harassment process that includes anti-harassment policies, training, complaint procedures, investigation procedures, and measures to protect the privacy of those involved in any complaint.

Risks of Non-Compliance

According to the PRC Special Regulations, an employer that fails to comply with the law’s requirements (including the affirmative obligations to prevent and prohibit sexual harassment) will face liability to compensate the employee for her damages arising therefrom.[16] Moreover, if the actions or omissions of the employer or individual members of management constitute a crime, criminal proceedings may be instituted and attendant criminal liabilities may apply.[17] Along these lines, under Article 92 of the PRC Labor Law, if an employer fails to provide safe working conditions in accordance with the law, the relevant authorities may order it to rectify or impose a fine.[18] Depending on the seriousness of the violation, the relevant authorities may suspend the employer’s operations and pursue criminal liabilities against the responsible person(s).[19]

Although the laws against sexual harassment are not strictly enforced (at least at present) and the cost of non-compliance appears low, in practice, if an employer fails to address a workplace sexual harassment claim appropriately, it will likely face a trial in the court of public opinion, as disgruntled employees in the PRC often release allegations publicly, both within and outside of the company, through social media and other outlets. In one publicized allegation of workplace sexual harassment, a female employee released a screenshot from WeChat (a popular social media application in China) reflecting her manager’s request to meet her in a hotel. Her employer originally decided to punish the manager by reducing his bonus. However, the public expressed anger at the employer and demanded more. Under the weight of public pressure, the employer reported that it summarily dismissed the manager.[20] Employers should therefore consider the additional risks of reputational harm, the impact on employee morale of a poorly handled or ignored claim, the potential for public pressure, claims for privacy violations, and/or defamation claims.

Recommendations

Given the #MeToo movement and the latest legal developments in China, employers in China should review their anti-sexual harassment policies and practices. More specifically, employers in China should

• ensure that binding sexual harassment policies are implemented, which include disciplinary actions for violations;
• clarify the prohibited conduct, such as sexual harassment regardless of the gender of the victim or harasser;
• provide regular sexual harassment training to managers and employees;
• build a culture to prohibit sexual harassment or retaliation;
• establish effective reporting channels;
• establish an effective investigation process; and
• stress confidentiality throughout the reporting and investigation process.

Contacts

If you have any questions or would like more information on the issues discussed in this law flash, please contact one of the following Morgan Lewis lawyers:

K. Lesli Ligorner