China’s Lawmakers Take More (Cautious) Steps Against Workplace Sexual Harassment  

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Last month, China’s National People’s Congress (NPC) reviewed major revisions to the Law on the Protection of Women’s Rights and Interests (LPWRI), first passed in 1992 and last overhauled in 2005. The state-run People’s Court Daily hailed the new draft as “strengthening the law’s operability” and addressing “hot button social problems.”

Among such issues, workplace sexual harassment has been high on the agenda. In 2021, a spate of high-profile cases once again highlighted the extent of the problem and how survivors who come forward are more likely to receive retaliation than remedies. Research indicates that most women have been harassed at work, few employers have policies for addressing harassment, and survivors face steep challenges in court.

The proposed LPRWI revisions aim to strengthen the existing law by clarifying what constitutes sexual harassment, obliging employers to adopt concrete anti-harassment policies, and giving regulators new enforcement tools. But, as the drafter explained, the revisions avoided changing “matters that are relatively controversial or for which the timing or conditions are not yet ripe.” As such, the draft revisions are cautiously incremental, and are likely to have limited impact if finalized as is.

The Development of Sexual Harassment Law in China

The LPWRI draft revisions should be read in the context of the gradualist evolution of sexual harassment law in China. The original 1992 LPWRI did not contain the term “sexual harassment,” but did address issues like illegal police searches of women’s bodies. Two years later, Hubei province took a pioneering step by passing implementing regulations for the LPWRI that prohibited “sexual harassment against women.” For over a decade, it was the sole legal provision in China that mentioned “sexual harassment.”

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When the LPWRI was amended in 2005, it adopted a prohibition on sexual harassment and added that survivors had a right to sue harassers and could submit complaints about sexual harassment to employers and government organs. The right to sue was not necessarily new: The first “sexual harassment” lawsuit – as it was popularly known at the time – had already gone to trial in 2001. Officially, it was an “infringement of bodily rights” case, since there was not yet a cause of action for “sexual harassment.”

In 2006, provinces began issuing implementing regulations for the amended LPWRI, and, like Hubei did previously, went beyond the national law. Numerous provinces required employers to take “measures” for preventing and responding to sexual harassment, enumerated examples of different forms of sexual harassment, and stated that government organs should investigate complaints. In 2012, a State Council regulation became the first national-level provision to put a general duty on employers to “prevent and curb sexual harassment against female workers,” though it did not elaborate on what that duty entailed.

National-level reforms picked up pace in 2018, arguably in response to the #MeToo moment. The Supreme People’s Court created a cause of action for sexual harassment, so survivors no longer had to file their cases under other categories. In 2020, the landmark Civil Code broke ground at the national level by obliging employers to adopt “reasonable measures” to address sexual harassment, such as procedures for receiving complaints and conducting investigations. Like many earlier provincial regulations, it also clarified that sexual harassment was not limited to physical contact but could occur through speech, writing, and images. Unique among China’s anti-harassment laws and regulations, it used gender-neutral language.

What’s New in the LPWRI’s Draft Revisions?

While anti-harassment law has grown on paper over the years, its real-world effects have been hard to see. Few employers fulfill their duties, and survivors rarely go to court, let alone win. The draft LPWRI revisions try to address these longstanding issues by clarifying duties and putting new enforcement tools into the hands of regulators – though, notably, not into the hands of individual women.

Clarification of Duties

Compared with earlier laws, the draft revisions provide more detailed illustrations of sexual harassment. Instead of just generally referring to “speech” and “images,” the draft includes “verbal expressions that have sexual meanings or sexual connotations” and transmitting audiovisual content that has “clear sexual connotations.” While these are just examples, they could guide courts and regulators in judging what constitutes sexual harassment. The presence or absence of modifiers like “clear” could create different thresholds for different kinds of acts.

The bigger development is the clarification of what employers must do to prevent and curb sexual harassment. The draft lays out an impressively comprehensive list, including adopting a written anti-sexual-harassment policy, conducting trainings for employees, designating responsible personnel, setting up hotlines and inboxes for complaints, and establishing procedures for investigations (the results of which should be provided in writing) and disciplinary actions.

Not-so-new Enforcement Tools for Women

The draft revisions do not significantly improve the enforcement tools available to women. Like the 2005 LPWRI, the draft says women can bring civil lawsuits against harassers and report sexual harassment to employers and government organs. In a new provision, it calls for the setting up of a nationwide hotline for women to report rights violations. Importantly, the draft does not provide that survivors can sue employers who failed to adopt or implement anti-harassment policies. Nor does it address the judicial procedures and practices that make it extremely difficult for survivors to prevail in court.

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Weak Administrative Sanctions

The draft provides for limited administrative enforcement of its sexual harassment provisions. Under article 83, the police may “reprimand and educate” harassers (a power already provided under several provincial regulations) or may issue written warnings to them. Yet these police actions are neither mandatory nor considered penalties, and there is no adverse consequence if a harasser chooses to ignore the police’s reprimands or warnings.

Employers that fail to adopt reasonable measures to address sexual harassment will be ordered to rectify, if their inaction harms women’s rights and interests or has “a vile social impact.” For a governmental employer, the order will be issued by its superior authority; for others, it will come from the government agency with oversight authority (e.g., education departments for schools). If an employer refuses to comply with such an order or the violation is serious, then its individual officers who are directly responsible for the violation will be disciplined under separate laws, which likely include the one governing public employees’ conduct. The draft does not impose any liability on the employers themselves, however. The subjective standards for sanctions and scattered enforcement authority among a variety of government agencies also raise doubts as to whether enforcement will be rigorous and consistent.

Public Interest Litigation by Procuratorates Against Employers

The draft adds a new provision that would authorize China’s procuratorates to file public interest lawsuits against employers. Under article 78, procuratorates may file suit when employers fail to “take reasonable measures to prevent and stop sexual harassment,” thereby violating the rights and interests of “numerous women” and harming the public interest.

The procuratorates are China’s “organs of legal supervision,” and historically their primary duties entailed supervising police investigations and conducting criminal prosecutions.

Their power to file public interest lawsuits is a fairly recent extension of that role, formally codified in 2017. Their initial mandate was limited, covering environmental protection, food and drug safety, and consumer rights, among a few other areas. But both through formal legislative changes and the procuratorates’ own experimentation, their charge has been gradually extended to additional areas that concern the public welfare (e.g., workplace safety) or specially protected groups (e.g., children’s rights). The new provision in the draft revisions continues this trend.

Procuratorates generally have more resources and legal expertise than private litigants. They also have the distinct advantage of possessing broad investigative authority to interview witnesses and collect evidence. They would thus be more effective at dealing with noncompliant employers, especially governmental employers. Procuratorates have in fact closed most public interest cases against government organs through pre-litigation demands for compliance.

Allowing procuratorates to sue employers could also alleviate problems of bureaucratic infighting and buck-passing that result from multiple agencies having fragmented and overlapping authorities over the same area, such as women’s rights enforcement. The Supreme People’s Procuratorate (SPP) reported in 2019 that procuratorates have been quite successful in tackling that problem, especially with respect to environmental regulation, by threatening or bringing public interest litigation. The SPP’s director of public interest litigation believed that the same would be true for women’s rights protection.

The draft’s grant of authority to the procuratorates would not be a panacea for workplace sexual harassment, however. Commentators observe that the procuratorates’ focus heeds the central leadership’s political priorities. In summer 2020, the SPP launched an ongoing three-year campaign that directs most of procuratorates’ energy as public interest litigators to environmental protection as well as food and drug safety. When expanding into an unfamiliar area of law like women’s rights, procuratorates also face a steep learning curve in mastering the necessary investigation techniques and crafting the appropriate remedies, which in this context include designing reasonable workplace sexual harassment policies. These hurdles, coupled with the perennial difficulty of ascertaining whether a violation harms the public interest, will likely blunt the effectiveness of this new enforcement tool.

Unlike China’s environmental and consumer protection laws, the draft does not allow social organizations to bring public interest lawsuits. These groups may only “support” aggrieved women’s own lawsuits – an ill-defined, passive role that is less than full representation. “Public interest litigation” in this sense, therefore, is “litigation for the public interest… but not necessarily by the public.”

Future Directions

The new enforcement tools in the draft revisions are likely not enough to significantly improve compliance among employers. Litigation and disciplinary action kick in only if employers refuse requests to adopt policies. Why not just wait to get caught, especially if overstretched regulators may never catch you? Women’s rights lawyer Lü Xiaoquan worries that “if violating a law basically means little or even no cost, then even a really good system could just become empty words on paper.”

Raising costs to inaction would improve compliance, whether through administrative penalties or, better yet, by letting survivors sue employers. Many influential voices have called for employers to bear some form of civil liability for sexual harassment, including the Chinese Academy of Social Sciences in 2008, the All-China Federation of Trade Unions in 2014, civil judges in Beijing in 2021, and the Sichuan provincial government in 2007 and 2021. Barriers to sexual harassment lawsuits prevailing in court should be removed. In a recent report, the Yuanzhong Gender Development Center recommended adopting a fairer allocation of the burden of proof and giving more weight to testimony.

The above reforms would entail investing more in administrative enforcement, opening employers up to significant liability, and broadly empowering women to enter the courts to defend their rights. Lawmakers would need to be convinced that such moves are not too costly or politically risky – a turn unlikely to occur before the LPWRI revision is completed or for some time to come.

The Diplomat source|articles

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