Workplace sexual harassment is no longer a new phenomenon to employees and employers. Very likely, employers get involved in chaos. From an employer's view, how to effectively prevent sexual harassment in the workplace is a critical problem. This article will discuss about what is the test for sexual harassment based upon laws and cases, then provide employers with suggestions on how to prevent and react to workplace sexual harassment to avoid employer's liability in China.

I. Definition of Sexual Harassment under Chinese Law

Although the objective of sexual harassment can be male and female, generally, female is comparatively more vulnerable. Therefore, this article is based upon the assumption that the victim is female. Article 40 of Law of the PRC on the Protection of Women's Rights and Interests(hereinafter Law on the Protection of Women's Rights and Interests) states that "sexual harassment to female shall be prohibited"; Article 32 of Regulations for the Implementation of Law of the PRC on the Protection of Women' s Rights and Interests in Shanghai states that "it is prohibited to conduct sexual harassment to women through language, text, images, electronic message, physical behavior, etc.";Article 237 of Criminal Law of the PRC (hereinafter Criminal Law) defines Indecent Assault as "coercively molest others or humiliate women by violence, threat or other means".

However, currently, there is no clear definition of sexual harassment under Chinese law. In a judgment made by the Intermediate Court of Zhongshan, Guangdong Province, the judge ruled that workplace sexual harassment shall generally contain three aspects: "(1) sexual action; (2) the action is not welcomed to the victim and impairs the victim's dignity; (3) the action can make the victim feel threatened, hostile and humiliated in the working environment".

II. Employer's Potential Liabilities Arising from Workplace Sexual Harassment

It is a "grey area" since there is no clear definition of workplace sexual harassment or the corresponding employer's liabilities. Therefore, employers shall be more careful in dealing with workplace sexual harassment. Generally, employers might bear the liability to alleged harasser ("harasser") and alleged victim of sexual harassment ("victim").

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Originally published by Lexology, August 17 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.