“Beijing +25” Retrospect and Prospect:The Establishment of Sexual Harassment Prevention Mechanism in the Workplace from the Perspective of Human Rights

LIU Xiaonan &HUANG Zhouzheng

Abstract:Sexual harassment is a form of gender discrimination and gender-based violence.It is a fundamental human right to be in a safe environment at work,free from violence and sexual harassment.The Beijing Platform for Action adopted by the Fourth United Nations World Conference on Women in 1995 strengthened the consensus that sexual harassment is violence against women.Sexual harassment in the workplace affects critical areas of concern in the Beijing Platform for Action,such as violence against women,women and economy,and human rights of women.This article reviews the progress and achievements of Chinese government in policy making,law improvement,administrative coordination and governance in the sexual harassment prevention in the workplace for the past 25 years,especially over the past five years.Through analyzing existing issues,this research puts forward measures and suggestions for improving the legal normative system,promoting the formation of joint efforts of different departments and enhancing the employer’s initiative.The implementation of the Beijing Platform for Action should be accelerated so as to push for the improvement of sexual harassment prevention mechanism in the workplace and to promote the protection of women’s rights and interests.

Keywords:workplace ◆ sexual harassment ◆ Beijing Platform for Action ◆ sexual harassment prevention mechanism

I.Sexual Harassment in the Workplace from the Perspective of Human Rights

A.Sexual harassment is sexism and gender-based violence

Before the 1970s,there was no term worldwide to describe the phenomenon of sexual harassment.What we now consider sexual harassment has long existed in the past but it was not regulated by law.The main reason for this was the victims are mostly women,with men suffering similar experiences less frequently.In 1979,the US scholar Catherine McKinnon analyzed in her bookSexual Harassment of Working Womenhow women’s disadvantaged position at work was reinforced by the social meaning of female sexuality.In the past,gender discrimination in the United States was only considered when men and women were treated differently,but McKinnon argued that women in the workplace were sexually harassed because of their gender.Sexual harassment is not an accidental behavior in the workplace,nor is it just because of the libido of a male individual.Instead,it is a factor and mechanism that makes women permanently disadvantaged in the workplace,so it should be deemed sexism.McKinnon believed that if a stipulation caused social inequality and the victim came to harm because ofhis/her own gender,it was discriminatory.1Catharine A.MacKinnon,Sexual Harassment of Working Women:A Case of Sex Discrimination (New Haven:Yale University Press,1979),174.Her research on sexual harassment laid a great influence on practice.The two types of sexual harassment described in her work (“quid pro quo sexual harassment” and “hostile work environment sexual harassment”) were later adopted by the Equal Employment Opportunity Commission (EEOC) as the basis for filing litigations in this area.

In international human rights law,sexual harassment is seen as a form of sexism and gender-based violence.Article 2 of theUnited Nations Declaration on the Elimination of Violence against Womendeems sexual harassment as violence against women.2Violence against women in Article 2 of the Declaration on the Elimination of Violence against Women shall be understood as including but not limited to the following:(a) Physical,mental and sexual violence in the family,including beating,familialsexual abuse of girls,dowry-induced violence,spousal rape,clitoral mutilation and other traditional practices harmful to women,non-spouse violence and exploitation-related violence;(b)physical,mental and sexual violence occurrence in society,including rape,sexual abuse,sexual harassment and intimidation in the workplace,educational institutions and other places,woman trafficking and forced prostitution;(c) physical,mental and sexual violence committed or condoned by the state behavior,no matter where it occurs.The Committee on the Elimination of Discrimination against Women (CEDAW)stated in its general recommendation No.19 that discrimination against women as defined in Article 1 of theConvention on the Elimination of All Forms of Discrimination against Womenincludes gender-based violence,that is,“violence that is directed against a woman because she is a woman or that affects women disproportionately.”Such violence constitutes a violation of human rights.If women are subjected to gender-based violence in the workplace,for example sexual harassment,their equal rights to employment will also be severely impaired.Sexual harassment includes unwelcome sexually motivated behaviors,whether in words or actions,such as physical contact and courtship actions,lascivious words,showing obscene books and paintings,and making sexual demands.If a woman has reasonable grounds to believe that her refusal to a behavior would be detrimental in her work,including recruitment or promotion,or unfriendly work environment,the behavior is discriminatory.3Committee on the Elimination of Discrimination against Women,General Recommendation No.19:Violence against women,1992,para.17 and 18.“Gender-based violence against women is a fundamental social,political,and economic means to solidify women’s subordination to men and their stereotyped roles.”4Committee on the Elimination of Discrimination against Women,General Recommendation No.35:gender-based violence against women,updating general recommendation No.19,2017,para.10.

Sexual harassment has also become illegal and banned worldwide and regarded as a type of sex discrimination.In the legislation of various countries,it is generally defined as unwelcome sexual behaviors directly imposed on the victim,or acts that create intimidating,hostile,and humiliating environments,and infringe on the dignity of others.It is divided into quid pro quo sexual harassment and hostile environmental sexual harassment.“The emergence of sexual harassment is not just a personal tort of the harasser,but more importantly,it reveals the power relation of gender inequality and unrestricted abuse of power in the workplace.Its elimination requires not just the punishment of the harasser personally,but more changes in organizational culture and unequal gender power structure.Only in this way can the occurrence of sexual harassment be effectively prevented and curbed.”5He Xia,“Right to Work”,in A Course in Social Gender and Human Rights,ed.Liu Xiaonan (Beijing:China University of Political Science and Law Press,2019),124.

B.Concerns about sexual harassment in the Platform for Action

In 1995,the Fourth World Conference on Women was held in Beijing.TheBeijing Declarationand theBeijing Platform for Action(hereinafter referred to as Platform for Action) adopted at the conference became the programmatic documents for promoting gender equality in China and the rest of the world.On the occasion of the 25thanniversary of the Fourth World Conference on Women,the process of “Beijing+25” to commemorate the event was launched.In December 2019,the Asia-Pacific Ministerial Conference on the “Beijing+25 Review” was held in Bangkok.The meeting identified three major achievements in the Asia-Pacific region,including the adoption of a series of laws,regulations,action plans and policies to promote women’s empowerment,improvement in women’s economic empowerment,and improvement in their rights to political participation and decision-making.It also pointed out three main challenges:There were still obstacles to women’s participation in the economy;the gender norms and stereotypes that hinder women’s development and empowerment remained;and the capacity for promoting gender equality was still lacking.6Cai Yiping,“Beijing +25:Asia-Pacific Achievements on Women’s Development and Outlook on Priority Issues -Asia-Pacific Ministerial Conference on the ‘Beijing+25 Review”,China Women’s News,December 24,2019.

TheBeijing Declarationreaffirms “women’s rights are human rights” (Article 14) and it proposes to“prevent and eliminate all forms of discrimination against women and girls” (Article 29) and “promote and protecte all human rights of women and girls” (Article 31).7“Beijing Declaration”,Chinese Women’s Movement 11 (1995):3-4.The Platform for Actioncalls on governments,the international community and civil society to take strategic actions in critical areas of concern8The 12 critical areas of concern identified in the Platform for Action include:(1) Women and poverty;(2)women’s education and training;(3) women and health;(4) violence against women;(5) women and armed conflict;(6) women and economy;(7) women’s participation in power structure and decision-making;(8)mechanisms for women’s advancement;(9) women’s human rights;(10) women and media;(11) women and environment;(12) girls.faced by women such as poverty,education,economy and violence.Sexual harassment,as a serious phenomenon of sexism directed at women has also become one of the key issues of common concern.Sexual harassment in the workplace,as violence against women,not only violates women’s human rights and fundamental freedom,but also leads to their disadvantaged status in social and economic structure,hindering their development and empowerment.

First,violence against women undermines and hinders or offsets the human rights and fundamental freedom enjoyed by women.The term “violence against women” means any act of gender-based violence in public or private life.Physical,sexual and psychological violence occurring within the general community,including sexual harassment at work,is also violence against women (Para.113 of the Platform for Action).Sexual harassment,as a widespread violence directed at women,violates women’s dignity and value.To build a mechanism to curb violence against women,the Platform for Action specifically points out that the absence of adequate gender-disaggregated data and statistics on the incidence of violence makes the elaboration of programmes and monitoring of changes difficult.For example,the lack of or inadequate documentation and research on sexual harassment in the workplace impede efforts to design specific intervention strategies.It is recommended that comprehensive measures be taken to prevent and eliminate violence against women.Women and men can be mobilized to overcome gender-based violence and effective public measures can be taken to address both the causes and the consequences of violence.(Para.120)It is recommended that programmes and procedures be developed to eliminate sexual harassment and other forms of violence against women in all educational institutions,workplaces and elsewhere.(Para.126)

Second,sexual harassment in the workplace also leads to women’s disadvantage in social and economic structures.The Platform for Actionstates that “the experience of sexual harassment is an affront to a worker’s dignity and prevents women from making a contribution commensurate with their abilities.” (Para.161) Sexual harassment has become an obstacle for women to realize their full potential.In order to promote their economic rights and economic independence,as well as their equal opportunity of access to resources,employment and other social and economic fields,legislation and administrative reforms should be undertaken to prohibit gender-based discrimination in the labor market and promote gender-sensitive policies and measures.Laws should be promulgated and implemented to prohibit sexual harassment and other forms of harassment in the workplace,providing legal protection for victims of sexual harassment.In addition,policies against sexual harassment in the workplace shall be formulated and mechanisms shall be established to review and monitor their implementation.(Para.165)

Because sexual harassment affects women’s human rights and fundamental freedom,causes their disadvantage in the socio-economic structure,and delays the process of gender equality,the Platform for Action proposes that sexual harassment should be eliminated.The internal dynamics of national institutions and organizations should be changed,and reforms in eliminate values,behaviors,rules and procedures that are inimical to the advancement of women shall be promoted.(Para.290)

II.Development of Sexual Harassment Prevention in the Workplace in China

Equality between men and women is the basic principle established by the Constitution of China.In the 25 years since the Fourth World Conference on Women,China has implemented the principle of gender equality,strengthened macro-policy guidance to eliminate violence against women,improved laws and regulations prohibiting sexual harassment,and promoted the participation of multiple parties in the collaborative management of sexual harassment.In particular,over the past five years,new progress has been made in the prevention of sexual harassment in the workplace.

A.Strengthen the macro-policy guidance for sexual harassment prevention in the workplace

In 2015,at the Global Women’s Summit jointly hosted by China and UN Women,President Xi Jinping systematically expounded China’s position and views on women’s causes,stressing that “[We will]actively protect women’s rights and interests.Women’s rights and interests are basic human rights.We will incorporate the system to guarantee women’s rights and interests into laws and regulations,elevate it to national will,and internalize it into the norms of social behavior,” “eliminate discrimination and prejudice against women,” and “eliminate all forms of violence against women.”9“Xi Jinping’s Speech at the Global Women’s Summit,” Xinhuanet,accessed February 17,2020.www.xinhuanet com/politics/2015-09/28/c_128272780.htm.In September 2016,Premier Li Keqiang chaired the symposium of“The Sustainable Development Goals:A Universal Push to Transform Our World —China’s Perspective” at the UN headquarters in New York,and announced the release ofChina’s National Plan on Implementation of the 2030 Agenda for Sustainable Development.10“China Releases National Plan on Implementing the 2030 Agenda for Sustainable Development,” Ministry of Foreign Affairs,accessed February 17,2020.https://www.fmprc.gov.cn/web/zyxw/tl405173.shtml.This national plan sets out the goal of “preventing and curbing all forms of violence against women and girls.”11Ibid.

As early as 1995,the Chinese government proposed “taking equality between men and women as a basic national policy to promote social development in China.”and formulated theChina National Program for Women’s Development (1995-2000)12“China National Program for Women’s Development (1995-2000)”,the National Working Committee on Women and Children under the State Council,accessed February 18,2020.www.nwccw.gov.cn/2017-04/05/content_149162_8.htm.,according to its specific domestic conditions.In the program,China proposed 11 goals to be achieved by women in politics,employment,labor protection,education,and personal rights,as well as the measures that must be taken to achieve them.China National Program for Women’s Development (1995-2000)proposes that in employment and labor protection,“female workers’ labor protection should be included in the work safety leadership responsibility system,and made one of the important elements for evaluating the performance of the person in charge of the enterprise.The publicity and education of laws and policies on labor protection shall be strengthened for female employees,to raise their self-protection awareness.” It also recommends providing legal protection for women,protecting women’s personal rights and all legal property rights,and promptly investigating and handling civil cases involving infringement of women’s rights and interests.In addition,stringent measures should be taken to crack down on criminal activities such as insulting women and to safeguard women’s personal safety and dignity.Women’s right to legal complaints and appeal shall be protected.In 2001,in response to the new situation and new tasks of reform and opening up and modernization,China promulgated theChina National Program for Women’s Development(2001-2010)13“China National Program for Women’s Development (1995-2000)”,the National Working Committee on Women and Children under the State Council,accessed February 18,2020.www.nwccw.gov.cn/2017-04/05/content_149162_8.htm,.,setting a higher goal for women’s development and adopting a faster pace for ots realization.The program identifies six priority development areas,including women and the economy,women’s participation in decision-making and management,women and education,women and health,women and law,women and the environment,with the theme of promoting women’s advancement throughout.It also proposes to further implement the labor protection policy for female employees,provide them with necessary work and labor conditions,and solve their special difficulties in labor and work due to physiological characteristics;strengthen the publicity,education and training of special laws and regulations on labor protection for female workers,raise employers’ awareness of the legal system and safe production,and strengthen the self-protection awareness of female employees.In terms of the law,it proposes to “protect the personal rights of women and prohibit all forms of violence against women.”

The first two programs did not explicitly raise the issue of “sexual harassment”facing women,but they ensured the protection of women in employment and work from the perspectives of work safety and labor protection.TheChina National Program for Women’s Development (2001-2010)put forward the issue of improving legislation at the macroscopic level and guaranteeing the rights granted to women by laws and regulations,providing policy guarantees for the realization of women’s legitimate rights and interests.In 2011,theChina National Program for Women’s Development (2011-2020)focused on more specific legal protection needs of women,and put forward practical strategies and measures.It specifically highlighted sexual harassment against women in the workplace.Therefore,it clearly raised the issue of sexual harassment,proposing that “Sexual harassment against women should be effectively prevented and stopped.Laws and working mechanisms to prevent and stop sexual harassment shall be established,and efforts shall be strengthened to combat acts of sexual harassment.Employers should take effective measures to prevent sexual harassment in the workplace.” For instances of women seeking protection,it emphasized that “for cases involving women’s personal privacy,measures shall be taken during litigation to protect the victimized woman from secondary harm.”14Ibid.

Compared to its two predecessors15Referring to the National Human Rights Action Plan of China (2009-2010) and the National Human Rights Action Plan of China (2011-2015).,theNational Human Rights Action Plan(2016-2020)of Chinaalso clearly requested “preventing and curbing sexual harassment against women,”16National Human Rights Action Plan of China (2016-2020),published by the State Council Information Office in June 2016.providing strong policy guidance for preventing sexual harassment in the workplace.

B.Improve the legal and regulatory system prohibiting sexual harassment in the workplace

China has made marked progress in legislation against sexual harassment in the workplace,and promoted long-term central and local legislation to prevent sexual harassment in the workplace.The achievements are mainly manifested as follows:At the level of the central government,Civil Code (Draft),theLaw on the Protection of Women’s Rights and Interests,theSpecial Provisions on the Protection of Female Workersand other laws and regulations have been improved,providing the legal basis for preventing and stopping sexual harassment in the workplace.At the local level,various provinces and municipalities have successively revised the implementation measures for the law on the protection of women’s rights and interests and other supporting regulations,or issued local gender equality promotion regulations and special regulations on the protection of female workers,and added content on the prohibition of sexual harassment.

1.Improve the legal basis for preventing sexual harassment in the workplace

At the central legislative level,theLaw on the Protection of Women’s Rights and Interestsamended on the occasion of the 10thanniversary of the Fourth World Congress on Women held in 2005,proposed as a tribute to “Beijing +10”,put forward the prohibition of sexual harassment against women for the first time and clarified the corresponding rights of the victims and legal liabilities of offenders.Article 40 stipulates that “Sexual harassment against women is banned.The victims shall be entitled to complain to the entity or the relevant organs.” Article 58 stipulates that “If anyone commits sexual harassment or family violence against a woman to violate this Law,and if his act constitutes a violation of the public security administration,the victim may require the public security organ to give the violator an administrative punishment or may initiate a civil action in the people’s court.” Article 11 of theSpecial Provisions on Labor Protection for Female Workerspromulgated by the State Council in 2012 states that “Employers shall prevent and stop sexual harassment towards female employees at the work place.” Compared with theLaw on the Protection of Women’s Rights and Interestsand theSpecial Provisions on the Labor Protection for Female Workerswhich offered legal protection to women victimized by sexual harassmentfrom the perspective of protecting their rights and interests and providing relief,theCivil Code (Draft)puts “sexual harassment” in the section of personality rights,emphasizing the infringement of sexual harassment on women’s rights and adding more specific provisions on preventing and stopping sexual harassment.TheCivil Code(Draft)stipulates civil liability and employer’s obligations.Article 1010 of the draft stipulates that “For sexual harassment in speech,behavior and other formsin violation of the will of others,the victim has the right to request the perpetrator to bear civil liability according to law.Institutions,enterprises,schools and other units should take reasonable precautions against sexual harassment,accept complaints regarding it,investigate and handle instances of sexual harassment,while preventing and curbing the sexual harassment by taking advantage of power or affiliation.” The provisions ofCivil Code (Draft)on sexual harassment constituteprogress,mainly seen as follows.First,the regulation on sexual harassment is no longer limited to the workplace and gender.It breaks the provisions of theLaw on the Protection of Women’s Rights and Interestsand theSpecial Provisions on the Labor Protection for Female Workersconcerning protecting women who have suffered sexual harassment,making it possible for men to be recognized as victims of sexual harassment in the legal sense.Secondly,it clarifies speech,behavior and other forms of sexual harassment,and expands the traditional concept of sexual harassment necessitating physical contact,making it possible to regulate sexual harassment through text messages and emails.Third,it stipulates the measures to be adopted by State organs,enterprises,schools and other units to prevent sexual harassment,actually expanding the occasions where sexual harassment is prohibited.So,it will have a positive effect on prohibiting various types of sexual harassment in the workplace and even on campus.Fourth,the provisions on “sexual harassment by taking advantage of power and affiliation” actually cover the identification of “quid pro quo sexual harassment.” That is to say,the fact that victims receive substantial benefits or become disadvantaged at work due to sexual harassment does not affect the conviction of sexual harassment.This provision is actually consistent with the general situation of sexual harassment in reality,providing a broader legal basis for the identification of sexual harassment in the workplace.By stipulating sexual harassment in the section of personality rights,theCivil Code (Draft)can address the dilemma of filing sexual harassment cases to a certain extent,and encourage victims to stand up for their rights.It is of positive significance for improving and promulgating relevant legislation and policies,promoting the transformation of traditional ideas,and improving the concept of gender equality.17Liu Chunling,“Analysis of the Provisions of the Civil Code (Draft) on Sexual Harassment”,Journal of China Women’s University 2 (2019):23-27.

2.Promote local supporting implementation of laws and regulations

Locally,after the revision of theLaw on Protection of Women’s Rights and Interestin 2005,all provinces,municipalities and autonomous regions successively revised their implementation measures for the law.The 31 provinces (municipalities and autonomous regions) added the prohibition of sexual harassment;among them,29 involved sexual harassment in the workplace.At least 13 provinces (municipalities and autonomous regions) defined sexual harassment.For example,Beijing,Guangdong Province,and Liaoning Province have specific definitions of sexual harassment,including those acts going against/violating women’s will,in the form of sexual content or sex-related behaviors,languages,texts,pictures,images,electronic information,gestures and other forms.In addition,at least 19 provinces,municipalities,and autonomous regions stipulate the responsibilities of employers.A woman who has been sexually harassed is entitled to complain to the unit of the offender and the public security organ.If the complaint is made to the offender’s unit,the unit should intervene and stop the sexual harassment in time.If the complaint is lodged with the public security organ,the public security organ shall accept it in time and handle it according to law.TheMeasures of Sichuan Province for Implementing the Law of the People’s Republic of China on the Protection of Women’s Rights and Interestsamended in 2007 stipulates that “If sexual harassment against women in the workplace causes physical,mental,and reputation damage to the victim,the unit or employer,if at fault,will be held accountable for corresponding civil compensation liabilities in accordance with the law.”18“Measures of Sichuan Province for Implementing the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests”,Sichuan Zhengbao 5 (2008):12-15.This ground-breaking legislation helps to alert and urge employers to fulfill their obligations,laying the foundation for subsequent national legislation to confirm their obligations to prevent and stop sexual harassment.

In addition,in recent years,some provinces and municipalities have made amendments to their implementation measures for theLaw on Protection of Women’s Rights and Interestsin the form of local regulations on women’s rights protection.For example,theRegulations of Tianjin Municipality on the Protection of Women’s Rights and Interestsemphasizes in Article 40 that “the unit and department shall accept and handle complaints of sexual harassment.”19The Regulation of Tianjin Municipality on the Protection of Women’s Rights and Interests,adopted at the 31st meeting of the Standing Committee of the 16th People’s Congress of Tianjin Municipality on November 18,2016.TheRegulations of Hebei Province on the Protection of Women’s Rights and Interestsstipulates in Article 21 that “State organs,social associations,enterprises,institutions and other organizations shall take measures to prevent and stop sexual harassment against female employees;victimized female employees shall be entitled to report to their units,public security organs and relevant departments,and the accepting units and departments shall handle the complaint;where the state organs,social associations and their staff refuse to deal with sexual harassment upon receiving the report,the directly responsible principal and other directly responsible persons shall be given administrative sanctions according to the law;criminal liability shall be investigated in accordance with law where a crime is committed.”20Regulations of Hebei Province on the Protection of Women’s Rights and Interests,approved by the Standing Committee of the 12th People’s Congress of Hebei Province on July 28,2017.TheRegulations of Jiangsu Province on the Protection of Women’s Rights and Interestsstipulate7 in Article 43 that “Sexual harassment against women in the form of sexual content or sex-related languages,texts,images,sounds,and physical movements is prohibited.Schools,employers and public management units shall prevent and stop sexual harassment against women through the establishment of an appropriate environment and necessary investigation and complaint systems.Victimized women have the right to complain to schools,employers,public management units and relevant departments,or file litigation with the people’s court.”21Regulations of Jiangsu Province on the Protection of Women’s Rights and Interests,adopted at the second meeting of the Standing Committee of the 13th People’s Congress of Jiangsu Province on March 28,2018.TheRegulations of Ningxia Hui Autonomous Region on the Protection of Women’s Rights and Interests,revised in 2019,have an additional provision on sexual harassment in the personal rights section,prohibiting sexual harassment against women in sexually related languages,words,images,and physical movements,and requiring employers to take effective measures to prevent and stop staff or other personnel from using their powers,affiliations and other convenient conditions to sexually harass women.22Regulations of Ningxia Hui Autonomous Region on the Protection of Women’s Rights and Interests,amended at the 45th meeting of the Standing Committee of the 12th People’s Congress of Ningxia Hui Autonomous Region on September 27,2019.

After the State Council promulgated and implemented theSpecial Provisions on Labor Protection for Female Employeesin 2012,some provincial governments began to formulate or revise specific implementation measures.By the end of February 2020,the Standing Committee of People’s Congress of two provinces23The Standing Committee of Shanxi Provincial People’s Congress and the Standing Committee of Fujian Provincial People’s Congress.and 12 provincial governments had issued relevant rules and regulations.24The 12 provincial governments of Hebei,Jiangsu,Zhejiang,Anhui,Jiangxi,Shandong,Henan,Guangdong,Shaanxi,Hunan,Ningxia Hui Autonomous Region,and Chongqing.In addition,some larger cities also issued government regulations to specify the provisions ofSpecial Provisions on Labor Protection for Female Workers.

TheRegulations on Labor Protection of Female Workersof Shanxi Province25The Regulations of Shanxi Province on Labor Protection of Female Workers,adopted at the 21st meeting of the Standing Committee of the 12th People’s Congress of Shanxi Province on July 30,2015.and Fujian Province26The Regulations of Fujian Province on Labor Protection of Female Workers,adopted at the 17th meeting of the Standing Committee of the 13th People’s Congress of Fujian Province on March 20,2020.,formulated by the standing committees of their people’s congresses,are local bylaws that rank higher than provincial-government regulations.The regulations of Shanxi Province and the government regulations of Hebei Province27Special Regulations of Hebei Province on Labor Protection of Female Workers,adopted by the 96th Executive Meeting of theHebei Provincial People’s Government on October 31,2016.make it clear that the prevention and suppression of sexual harassment against female employees is one of the obligations to be fulfilled by employers.The government regulations of Anhui Province,28Special Regulations of Anhui Province on Labor Protection of Female Workers,promulgated via Order No.263 by the Anhui Provincial People’s Government on January 27,2016.Guangdong Province29Measures of Guangdong Province for the Implementation of the “Special Provisions on Labor Protection for Female Workers,adopted at the 85th Executive Meeting of the 3rd Session of the Guangdong Provincial People’s Government on November 3,2016.,Fujian Province,Zhejiang Province30Labor Protection Measures of Zhejiang Province for Female Workers,promulgated via Order No.355 by the Zhejiang Provincial People’s Government on April 14,2017.,and Shaanxi Province31Special Provisionsof Shaanxi Province on the Implementation of Labor Protection for Female Workers,adopted at the 25th Executive Meeting of the Shaanxi Provincial People’s Government on December 26,2017.emphasize that employers should draw on their own characteristics to take measures to prevent and stop sexual harassment,requesting them to handle complaints in a timely manner and protect the individual privacy of female employees.The government regulations of Jiangxi Province32Special Regulations of Jiangxi Province on Labor Protection of Female Workers,reviewed and approved by the 80th Executive Meeting of the Jiangxi Provincial People’s Government on May 12,2017.only require the employer to report to the relevant authorities in case of sexual harassment against its female employees,without requesting it to handle any complaints.It is worth noting that theMeasures of Ningxia Hui Autonomous Region for Labor Protection of Female Workersdo not involve sexual harassment.The other provinces have not yet promulgated regulations in line with theSpecial Provisions on Labor Protection for Female Workers.33Measures of the Ningxia Hui Autonomous Region for Labor Protection of Female Workers,approved by the People’s Government of Ningxia Hui Autonomous Region on August 15,2016.

TheSpecial Regulations of Hunan Province on Labor Protection of Female Workers,34Special Provisions of Hunan Province on Labor Protection of Female Workers,adopted at the 53rd Executive Meeting of the Hunan Provincial People's Government on November 27,2019.adopted in November 2019,stipulate in Article 16 that “In the workplace,the employer shall prevent and stop sexual harassment against female workers;if the female worker reports sexual harassment,it shall promptly and properly handle or transfer the case to the relevant authorities to be handled.If the case is reported to the public security organ or a civil lawsuit is filed with the people’s court,the employer shall provide support;the relevant authority,in dealing with incidents of sexual harassment against female workers,shall protect the personal privacy of female workers according to the law.”

TheRegulations of Shenzhen Special Economic Zone on Promotion of Gender Equality,adopted by the Standing Committee of the Fifth People’s Congress of Shenzhen on June 28,2012,is the first local special legislation of China to promote gender equality.It stipulates the establishment of a working organization for promoting gender equality (Article 7),and clarifies its work objectives and responsibilities;takes sexual harassment prevention in the workplace as one of its important work functions and stipulates that the municipal organizations promoting gender equality shall regularly publish guidelines for the fight against sexual harassment behaviors to instruct state organs,enterprises,institutions,social groups,and other organizations in preventing and stopping sexual harassment (Article 22).It also stipulates the employer’s obligations to prevent sexual harassment and offers a definition of quid pro quo sexual harassment,that is,explicit or implied use of sexual content or sex-related behaviors,languages,texts,images,electronic information and other forms as quid pro quo for recruitment,promotion,remuneration,rewards and other benefits,by violating others’will and drawing on position,employment or other convenient conditions (Article 23);makes specific provisions on relief channels and legal responsibilities (Article 29).It has not only made pioneering attempts to enhance the operability of anti-sexual harassment,but also changed the legislation model of single-sex protection to protect all victims of sexual harassment regardless of gender.35“Anti-Sexual Harassment Legislation Shouldn’t Become a ‘Scarecrow’”,accessed February 25,2020.www.legaldaily.com.cn/index/content/2018-02/06/content_7469097.htm? Node=20908.

C.Multi-party participation in the construction of sexual harassment prevention mechanism in the workplace

1.Develop specific plans to prevent and stop sexual harassment in the workplace

The All-China Federation of Trade Unions and the All-China Women’s Federation have long set great store by the labor protection of female employees and explored the establishment of mechanisms for corporate gender equality.On the eve of Women’s Day in 2019,the All-China Federation of Trade Unions issued theGuidebook on Promoting Gender Equality in the Workplace,which takes “preventing and suppressing workplace violence and sexual harassment” as an important link to promote gender equality in the workplace.In the guideline,the regulations and the definition of sexual harassment are systematically interpreted,and recommendations are made for establishing reasonable prevention,complaint,and handling systems,so as to prevent and stop workplace violence and sexual harassment.36All-China Federation of Trade Unions,Guidebook on Promoting Gender Equality in the Workplace (Beijing:China Workers Press,2019).In March 2020,theGuidebook on Eliminating Sexual Harassment in the Workplaceissued by the All-China Federation of Trade Unions clearly defines sexual harassment and sexual harassment in the workplace,providing a basis for identifying sexual harassment in practice.Sexual harassment includes three key elements,namely,unwelcome,sexually related,and reasonably anticipated to be offensive,insulting or threatening.“Sexual harassment in the workplace” is related to,caused by or during work.In addition,theGuidebook on Eliminating Sexual Harassment in the Workplaceprovides detailed program guidance on the participation of employers,employees,and trade unions in promoting the prevention of sexual harassment in the workplace.Among them,employers are instructed to prevent and curb sexual harassment in the workplace through six basic links,including program establishment,system improvement,and publicity and education,as well as the three curbing links of acceptance,investigation and handling of complaints.Trade unions at all levels should strengthen participation at the source,and actively promote and participate in the formulation of laws and policies,the investigation of sexual harassment in the workplace,and supervision of enterprises in establishing institutional mechanisms to prevent and stop sexual harassment;participate in and supervise the implementation of enterprise mechanisms;support victims of sexual harassment at work for rights protection and offer professional legal guidance to employees and witnesses to handle possible sexual harassment.37Editorial Committee,Guidebook on Eliminating Sexual Harassment in the Workplace (Beijing:China Workers Press,2020).The All China Women’s Federation made legislative proposals to promote legislation against sexual harassment,and supported women’s rights protection in accordance with the law through the establishment of the “Special Legal Aid Fund for Protection of Women’s Rights” and women’s rights protection hotline.In 2019,the Shenzhen Women’s Federation began to explore the establishment of a working mechanism for anti-sexual harassment,planning to release theGuide of Shenzhen for Anti-Sexual Harassment,and launching anti-sexual harassment pilots in colleges and universities.38Guo Yuli,“The City Women’s Federation Explores the Establishment of a Working Mechanism for Anti-Sexual Harassment,” Shenzhen Evening News,February 1,2019.

2.Strengthen judicial protection for sexual harassment victims

Although theLaw on the Protection of Women’s Rights and Interestsstipulates that women victimized by sexual harassment “have the right to complain to the unit and relevant authorities,” and that they can also file civil suits with the people’s court in accordance with the law.However,“sexual harassment” is not included in the scope of cases in the Litigation Law,nor is there any cause for litigation.As a result,it is difficult for such cases to be accepted by the court.39Liu Xiaonan,“The Status Quo and Legal Regulation of Sexual Harassment-Taking Sexual Harassment Legislation in Hong Kong SAR and Taiwan”,Journal of Chinese Women’s Studies 4 (2014):43.To address this dilemma,the Supreme People’s Court added the new cause of action “liability dispute over sexual harassment damages” in theRegulation on Cause of Action for Civil Casesin December 2018.40Supreme People’s Court,Notice of the Supreme People’s Court on Increasing Cause of Action for Civil Cases,No.FA [2018]344.From then on,victims of sexual harassment have been entitled to file a lawsuit,making it convenient for sexual harassment victims to seek judicial protection.Later,the case of a female social worker accusing sexual harassment by a man surnamed Liu became the first case that was accepted on the basis of “liability dispute over sex harassment damages.” The case was won by the victim.On June 11,2019,the court ruled that the defendant’s actions “constitute sexual harassment of the plaintiff,” and ruled that the defendant apologized to the plaintiff in person.In the verdict,sexual harassment was defined as “sexually suggestive speech or actions that are made against the will of the other party and that bring physical and mental harm to the other party.”41Cf.(2019) Verdict No.(2019) CHUAN 0107 MIN CHU 1407.Although the judge did not support the plaintiff’s claim for the employer’s joint liability for compensation and suggested the plaintiff file a separate litigation based on labor relations,the definition of sexual harassment would undoubtedly provide reference for hearing sexual harassment cases in the future.

III.Problems and Challenges

A.The law and regulation system for sexual harassment prevention in the workplace is to be improved

First of all,the current laws and regulations do not specify the concept and classification of sexual harassment,with the provisions distributed in theCivil Code (Draft),Law on the Protection of Women’s Rights and InterestsandSpecial Provisions on Labor Protection for Female Workers.As a result,the current provisions on prohibiting sexual harassment are lacking in standardization,systematicality and enforceability.The provisions of theCivil Code (Draft)to prevent sexual harassment emphasize to“prevent and stop the use of power,affiliation,etc.to implement sexual harassment,”omitting common hostile environmental sexual harassment.The unclear concept of sexual harassment may lead to concurrence with the “obscene”behavior42The Law of the People’s Republic of China on Penalties for Administration of Public Security stipulates in Article 44 that “A person who molests another person or intentionally exposes his/her body in a public place,if the circumstances are abominable,shall be detained for not less than five days but not more than 10 days;if a person molests a mentally disabled person,or a person suffering mental disorder,or a person who has not attained to the age of 14,or commits such act with other serious circumstances,he shall be detained for not less than 10 days but not more than 15 days.”in theLaw on Penalties for Administration of Public Securityand the “crime of coercive obscenity and humiliation”43The Criminal Law stipulates in Article 237 that “Whoever acts indecently against or insults a woman by violence,coercion or any other forcible means shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.Whoever gathers a number of people to commit the crime mentioned in the preceding paragraph or commits the crime before the public in a public place shall be sentenced to fixed-term imprisonment of not less than five years.Whoever acts indecently against a child shall be given a heavier punishment in accordance with the provisions of the preceding two paragraphs.”in theCriminal Law,making it difficult for the normative provisions on sexual harassment to take full effect.Such provisions in principle may weaken public awareness of sexual harassment,hamper the formation of a good concept of prohibiting sexual harassment,and lead to problems that are difficult to identify in future judicial practices,thereby making it impossible for victims of sexual harassment to obtain judicial relief.

Second,the laws and regulations are not specific about employers’ obligations to prevent and stop sexual harassment.Special Provisions on Labor Protection for Female Employeesstipulates that employers should prevent and stop sexual harassment against female employees in the workplace,but fails to specifically stipulate the measures they should take.The provisions in theCivil Code (Draft)on employers’obligations to take reasonable preventive measures,accept complaints,investigate and handle sexual harassment are still too sketchy,and the corresponding supporting laws lack clear requirements for prevention,acceptance,and investigation and disposal.

Third,there is currently no provision in China to specifically address the liability of employers for sexual harassment in the workplace.TheLaw on the Protection of Women’s Rights and Interests,theSpecial Provisions on Labor Protection for Female Workers,and theCivil Code (Draft)have clarified and emphasized the measures that employers should take to prevent sexual harassment,but they haven’t specified the responsibilities of employers in failure to adopt the measures or in cases of sexual harassment.The stipulations on employers’ responsibilities in Article 34 of theTort Liability Lawand Article 8 and 9 of theInterpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in Trying Cases InvolvingCompensation for Personal Damageare mainly directed at circumstances of personal damage to their employees in “executing work tasks” or “performing duties,conducting employment activities.” This is obviously different from employers’ responsibility in cases of sexual harassment in the workplace.The reasons are twofold.First,it is very difficult to interpret the sexual harassment behaviors conducted by employees against other employees as performing work tasks;second,the victims can be subject to sexual harassment from employees of the unit,as well as customers or employees of other units.In such cases,employers’ liability in the above regulations does not apply,which makes it difficult to pursue civil liability for employers who fail to prevent and control in cases of sexual harassment.Some provinces in China have made helpful attempts to address the issue of employers’ liability for sexual harassment in the workplace.For example,Fujian Province stipulates that “Employers shall take measures to prevent sexual harassment in the workplace,and shall handle sexual harassment in a timely manner when it occurs,” and “shall be held accountable in cases of violating the regulations in Paragraph 3 of Article 15 in accordance with relevant regulations.”44The Measures of Fujian Province for Implementing the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests,revised at the Fifth Meeting of the Standing Committee of the 11th People’s Congress of Fujian Province on September 28,2008.Sichuan Province stipulates that “The employer is at fault for sexual harassment in the workplace that causes physical,mental,and reputation damages to victimized women shall bear the corresponding civil compensation liability according to law.”45The Measures of Sichuan Province on the Implementation of the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests,revised and adopted at the 30th meeting of the Standing Committee of the 10th People’s Congress of Sichuan Province on September 27,2007.However,the above two provisions are local regulations,less effective than laws,and subject to geographical restrictions in application.

B.The overall coordination mechanism for preventing sexual harassment in the workplace needs to be strengthened

The sexual harassment prevention in the workplace is faced with the problems of ambiguous subjects of the parties and insufficient coordination.First of all,the overall requirements of sexual harassment prevention mechanism in the workplace are not clear.The National Working Committee on Women and Children,All-China Women’s Federation,the labor union,the labor security department,and other administrative departments prevent and control sexual harassment from different perspectives,including policy guidance,judicial protection,administrative protection,and labor inspection.There is a lack of programmatic guiding philosophy,fundamental principles and work objectives.The existing prevention,acceptance and investigation measures that shall be taken by employers in accordance with the law lack supervision of the implementing subject.As a result,implementation of laws and policies to prevent sexual harassment is inadequate.

Second,the differences in the understanding of,working methods for,and institutional functions of various departments for preventing sexual harassment have led to insufficient coordination and cooperation among various departments in reality.At present,women’s federations and labor unions have conducted a lot of basic research in exploring the establishment of anti-sexual harassment work mechanisms,which also requires closer collaboration and cooperation of government departments.

C.Insufficient employer motivation in the sexual harassment prevention in the workplace

In practice,employers have obviously done little in preventing sexual harassment in the workplace.For sexual harassment in the workplace,employers have the natural “first place” advantage to prevent and stop sexual harassment because of the workplace they provide and the internal power relations they possess.For now,the employers’ “first place”advantage and obligations have not been brought into play and fulfilled.

First of all,the employer lacks gender awareness and the awareness of protecting women’s rights and interests.This is an internal factor making employers unwilling to promote the prevention of sexual harassment.Due to the lack of gender awareness,they adhere to the inertial thinking of maximizing corporate profits in production and operation,46Li Kunqian and Wang Jing,“The Status Quo and Way Out:How Enterprises Shoulder Responsibility for Gender Equality,” China Women’s News,August 1,2017.ignoring the gender equality policy at work.In view of the fact that handling sexual harassment incidents will disrupt internal order,cause chaos in management,and affect the corporate image,some employers choose to conceal sexual harassment incidents in the workplace,neglecting the fact that strengthened management and prevention can help improve work efficiency.Secondly,there are differences in the institutional basis for employers to implement sexual harassment prevention policies,and it is difficult in practice to construct prevention mechanisms for sexual harassment in the workplace.Compared with the majority of public institutions,state organs and state-owned enterprises that have the overall system foundation of sufficient and sound administrative resources and professional groups,a great number of small and medium-sized enterprises are faced with the problems of poor system base and shortage of resources for preventing sexual harassment.47Li Jing,“Counter-Sexual Harassment Policy in Comparative Perspective--Discourse Construction,Policy Process and Chinese Policy Formulation”,Journal of Chinese Women’s Studie 3 (2018):42.Finally,the lack of supervision and incentives for employers in laws and policies has led to insufficient external motivation to fulfill their obligations to prevent and control sexual harassment.

III.Countermeasures and Suggestions

A.Improve the law and regulation system for sexual harassment prevention in the workplace

In response to the violence against women,including sexual harassment,the Platform for Action clearly recommends that governments should promote positive gender-aware policies and programs,adopt and implement the legislation on eliminating and preventing violence against women,and provide victimized women with channels to appeal to the judiciary and to obtain fair and effective remedies.48Beijing Platform for Action,para.124.

As far as the current legal system in China for preventing and controlling sexual harassment in the workplace is concerned,the legislative provisions on the definition,identification and legal responsibility of sexual harassment should be improved,to provide a sufficient legal basis for preventing and stopping sexual harassment.The concept,classification,prevention obligations,legal liability (including personal liability and employer liability) of sexual harassment should be improved in the workplace according to Chapter 4 Labor and Social Security Rights of theLaw on Protection of Women’s Rights and Interests.Sexual harassment should be clearly divided into quid pro quo sexual harassment and hostile work environment sexual harassment in legislation;sexual harassment should be clarified as unwelcome sexually related words and behaviors,a form of sexism,and gender-based violence.The standard for identifying sexual harassment is that a reasonable person can expect a behavior to make a person feel offended,insulted,or threatened.49Liu Xiaonan,“Employer Responsibilities Must Be Strengthened to Prevent Sexual Harassment in the Workplace”,China Women’s News,January 28,2014.

The employers’ obligations in preventing sexual harassment should be clarified in the law,which shall require them to introduce measures and mechanisms towards this end.The obligations shall be divided into two aspects:prevention beforehand and relief afterwards.The former shall mainly include formulating and publicizing prevention measures for sexual harassment and complaint handling regulations,and developing long-term open publicity and training in sexual harassment prevention.The latter mainly includes the establishment of a special agency or designation of special personnel to take charge of complaints and handle sexual harassment.When any sexual harassment behavior is detected,corrective and remedial measures should be taken;the complaints of sexual harassment should be kept confidential,and the complainant protected from retaliation.

The provisions on legal liability should be improved.It is recommended that specific provisions be made setting out employers’ responsibility in prevention,handling and burden of proof,and that favorable links be developed with civil and administrative liability stipulated in current laws,to specify punishments for employers by the competent authority.First of all,the position of the employer liability mechanism shall be legally highlighted in institutional construction for preventing sexual harassment in the workplace.As mentioned earlier,employers have direct control over the workplace and working environment,and have the ability to take two-pronged measures of prevention in advance and correction afterwards to prevent sexual harassment in the workplace.The relevant legislation of China should have clear provisions to specify employers’ obligations and legal responsibilities in fighting sexual harassment.Second,the different forms of employer liability should be distinguished in the event of sexual harassment in different circumstances,according to the identity of the perpetrator,and the degree of impact on the working conditions of the victim.This differentiation is undoubtedly more reasonable than requiring employers to take responsibility in general.Third,the employer responsibility mechanism plays the role of accountability as well as education and guidance.Overseas systems have shown that under certain circumstances,the internal anti-sexual harassment mechanism established by the employer can be a ground for mitigating or exempting his liability.This regulation undoubtedly encourages employers to take proactive measures against sexual harassment.In designing relevant systems,China should also focus on encouraging and guiding employers to actively establish effective internal mechanisms for fighting sexual harassment.

B.Promote the joint efforts to prevent sexual harassment in the workplace

The Platform for Action proposes that governments,employers,trade unions and other relevant agencies should formulate programs and procedures for eliminating sexual harassment as appropriate.50Beijing Platform for Action,para.126.In the prevention and punishment of sexual harassment in the workplace,the coordination of various government departments and women’s federations,labor unions,labor security and other departments should be strengthened.Policy guidance documents should be issued to determine the overall requirements,guidelines,basic principles and work objectives of sexual harassment prevention in the workplace;and the roles and divisions of labor of various departments should be clarified in the construction and improvement of mechanisms for sexual harassment prevention.It is recommended that the government should advocate sexual harassment prevention,introduce corresponding working methods,and set up a special group for sexual harassment prevention.The women’s federations shall cooperate with the trade union organizations to promote the implementation of specific policies,and promote the joint participation of other government departments in mechanism construction,program design,publicity and education,rights protection and other links to form joint efforts.

Efforts shall be made to promote the participation of women’s federations,trade unions and other organizations in national and local legislation,and promote the introduction of laws,and the formulation of regulations and policies to prevent and stop sexual harassment in the workplace.It is recommended that the All-China Women’s Federation and the National Federation of Trade Unions should leverage their political,organizational and professional advantages,to jointly issue a work manual to prevent and stop sexual harassment in the workplace.The specific legal obligations and responsibilities of employers on sexual harassment prevention shall be clarified.The women’s federations and trade union organizations shall strengthen their cooperation with industrial,commercial,human resources and social security,labor security supervision departments.Education and publicity activities on sexual harassment prevention shall be launched.Employers shall be prompted to formulate and implement the rules and regulations on preventing sexual harassment.The sexual harassment prevention mechanism in the workplace shall be established and improved.

The women’s federations,labor unions,labor security,and government departments shall strengthen support for protecting the rights of victims of sexual harassment in the workplace.They shall make complaint channels readily accessible,to provide professional consulting services to employees on laws and sexual harassment;coordinate and participate in the investigation and processing of sexual harassment complaints;provide legal assistance and assist with evidence collection,and urge employers to establish special investigation teams when necessary;support and assist victims in using legal means to defend their rights;provide psychological counseling to victims when necessary.

C.Give full play to the employers initiative in sexual harassment prevention

The Platform for Actionspecifically emphasizes the importance of comprehensive measures taken by the business community in preventing and eliminating violence against women.51Beijing Platform for Action,para.124.During sexual harassment prevention in the workplace,it is necessary to play the role of employers from the aspects of corporate gender awareness,actual prevention capabilities,and external supervision and incentives.

Incorporating gender awareness into corporate decision-making and strategic considerations and promoting women’s survival and development are important measures for companies to fulfill their social responsibilities.Establishment of corporate social responsibility standards based on gender equality can not only enhance the efficiency,cohesion and core competitiveness of enterprises,and improve management,but also enhance employees’ sense of gain,honor and belonging,help gather talents and establish harmonious labor relations.52Liu Bohong,“Experiences and Prospects of Introducing Gender Equality to Corporate Social Responsibility,” China Women’s News,August 8,2017.Industrial and corporate social responsibility standards should be published under the guidance of laws and policies to promote the role of gender awareness in corporate decision-making.Relevant institutions shall be organized to train the management personnel of the employer through on-site training or remote instructions.The improvement of gender equality awareness and capability among the managers is the prerequisite for the enterprise to assume social responsibility and promote the prevention of sexual harassment.53Liu Minghui,“On Policies for Promoting Gender Equality and Family Friendship in Enterprises — Taking 5 Textile and Apparel Enterprises as Pilots”,Journal of Chinese Women’s University 3 (2019):30-37.

In building the employers’ actual capacity in prevention and control,the government shall play a leading role.It is recommended that the government organize women’s federations,trade unions and other institutions to issue a program of sexual harassment prevention in the workplace for the employers.Accordingly,women’s federations and trade unions at all levels shall offer guidance on developing corporate mechanisms of sexual harassment prevention in the workplace.Written guidance on sexual harassment prevention policies shall be provided.For small and medium-sized enterprises,assistance shall be offered in formulating regulations on sexual harassment prevention.Investigations within employers shall be properly streamlined.After employers receive complaints about sexual harassment or conduct preliminary factual investigations,labor supervision and security department or trade unions shall conduct investigations as external consultants.

The guidance,supervision and evaluation mechanism of relevant departments shall be improved for sexual harassment prevention of employers.The supervisory role of trade unions and women’s federations should be clarified to assist employers in implementing the monitoring system,including monitoring indicators,monitoring time,and improvement measures.According to the monitoring standards,evaluation and feedback should be given in time to identify problems and analyze the reasons for prompt solution.The trade unions and women’s federations should also enhance summarization,archiving and publicity,and education and training;join the employers in handling complaints or reports of sexual harassment in the workplace,and promptly propose correction of any existing problems;cooperate with other relevant departments to launch special activities to prevent sexual harassment,evaluate the employers’ development of sexual harassment prevention mechanisms,create a positive list,publish the list of enterprises actively engaged in sexual harassment prevention to expand social demonstration,and exercise admonition,criticism,supervision for rectification for employers covering up for the perpetrator and with poor performance in prevention.