Will China’s Civil Code Finally Get Companies to Take Fighting Sexual Harassment Seriously?

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Will China’s Civil Code Finally Get Companies to Take Fighting Sexual Harassment Seriously?

The implementation of the new code will determine whether it can truly turn the tide against sexual harassment.  

Will China’s Civil Code Finally Get Companies to Take Fighting Sexual Harassment Seriously?

Supporters of Zhou Xiaoxuan hold banners as they wait for Zhou outside at a courthouse where she is appearing in a sexual harassment case in Beijing, Wednesday, Dec. 2, 2020.

Credit: AP Photo/Andy Wong

Article 1010 of China’s first-ever Civil Code, effective January 1, 2021, obliges companies to adopt measures for preventing and responding to sexual harassment in the workplace. These include channels for employee complaints, procedures for investigating complaints, and rules for disciplining wrongdoers. Although past laws and regulations have targeted sexual harassment before, the Civil Code is the first national law to place this specific duty on employers. It is a notable move that shows authorities, while repressing the #MeToo movement with one hand, seek to root out – or at least appear proactive in rooting out – sexual harassment with the other.

But will the Civil Code bring real change to China’s workplaces? State media have highlighted Article 1010’s promise with articles like “Look How the Civil Code Better Safeguards the Personal Dignity of You and Me,” but legal observers are concerned that Article 1010 could face problems in implementation. Article 1010, like the policy changes that have come before it, could turn out to be another toothless tiger – intimidating at first glance, but without real bite – that is easy for employers to ignore.

And teeth will be necessary to take on the stubbornly resistant status quo. A 2018 survey of over 100 respondents from coastal cities found that 81 percent of their companies did not have anti-sexual harassment policies. Another 12 percent of companies had written policies, but did not implement them, according to respondents. Liao Jingyi, a co-director of EnGender, a social enterprise that is encouraging businesses to adopt anti-sexual harassment measures, recently told Sixth Tone, “I’ve failed many times when trying to invite companies to [adopt policies]… They often ask me, ‘What kind of profit can I get from this?’”

Professor Liu Xiaonan of the China University of Political Science and Law explained to me that some managers she interviewed even worried that “‘if we adopt sexual harassment policies, others will think we have a bad sexual harassment problem at our company.’” There are also legal risks for companies that fire or otherwise punish harassers. Many alleged harassers have won cases claiming that their employers’ disciplinary actions against them violated their labor contract rights.

A slow ratcheting up of laws and regulations taking aim at sexual harassment over the past 15 years has not made much of a dent on the ground. In 2005, the Law on the Protection of Women’s Rights and Interests became the first law to generally prohibit sexual harassment and said female employees have a right to file complaints with their employers (Article 1010 is gender neutral, but its predecessors only applied to women). A 2012 State Council regulation went further, stipulating employers “should prevent and curb sexual harassment,” and a slew of provincial regulations are yet more specific, stating that employers should adopt anti-sexual harassment measures. In January 2019, the Supreme People’s Court added “disputes regarding compensation for harm caused by sexual harassment” to its list of causes of action to facilitate claim filing. Nevertheless, according to Professor Jin Wenjing of the China University of Political Science and Law, “there has not been a single sexual harassment case in which a victim successfully demanded an employer assume legal liability.” Suits against individual harassers have not fared much better. The Beijing Yuanzhong Gender Development Center, a women’s rights organization, searched databases of tens of millions of court cases from 2010 through 2017, but found only two instances of survivors suing alleged sexual harassers – both plaintiffs lost.

There has not been much improvement in more recent years. In 2018–2020, Yuanzhong helped a female staff member of a non-profit organization in Sichuan province sue the organization’s director general, Liu Meng, for sexual harassment after he inappropriately touched her several times. The appeals court found Liu liable and ordered him to apologize to the plaintiff, but awarded the plaintiff no compensation for emotional distress. The ruling was particularly disappointing to feminist advocates because it ignored the issue of employer liability, even though a Sichuan provincial regulation specifically states that employers can be sued for failing to fulfill their duty in stopping sexual harassment.

In another recent high-profile lawsuit, Zhou Xiaoxuan sued famous CCTV personality Zhu Jun for forcing himself on her in a dressing room while she was interning at his show. Zhou filed suit in 2018, but her case only went to trial in December 2020. The first hearing was not smooth – Zhu did not show up and after a marathon 10-hour session the court adjourned inconclusively. Speaking to supporters outside the court close to midnight, Zhou announced she had requested the case’s three judges be replaced before the next hearing (the date of which is unclear as of this writing). Once again demonstrating the legal risks for survivors who stand up, Zhu filed a defamation suit against Zhou shortly after she came forward.

It is an open question whether Article 1010 will succeed where other laws and regulations have failed. The Civil Code has greater legal authority than State Council or provincial regulations, and, in contrast to the Law on the Protection of Women’s Rights and Interests, the Civil Code concretely states that employers have a duty to adopt anti-sexual harassment measures. However, Professor Jin points out a key omission in Article 1010: “although it says that employers have a duty to adopt policies, it does not say that employers are civilly liable for failing to do so.” Article 1010 sets out liability for individuals, so leaving out employer liability is conspicuous.

Which brings us back to Article 1010’s teeth. Let’s say a manager at a company with no anti-harassment policies sexually harasses an employee. Could the employee sue the company for not meeting its duty under Article 1010? Some authoritative voices are saying not so fast. At a State Council press briefing in July, Professor Wang Liming, a Renmin University scholar who participated in drafting the Civil Code, said that a judge would need to determine whether a “cause and effect relationship” exists between the company’s failure to establish measures and the harassment incident’s occurrence. A women’s rights lawyer, whom I will call “Lawyer Mou,” said she is “very concerned” about plaintiffs having to meet this difficult and logically confusing standard. “How can you prove cause and effect between these things?”

There are other indications that grounds for finding employer liability will be narrow. Article 1010 only obliges employers to concern themselves with sexual harassment that occurs in a vertical power relationship, e.g., a manager harassing a subordinate, and not between colleagues. In his comments at the State Council press briefing, Wang also defined sexual harassment as being “directed at a specific person, and not general, like telling a dirty joke, for example.” Scholars are also wondering whether judges will require the harassment to have happened “in the course of employment.” But what if a boss invites an employee to a karaoke parlor and harasses the employee there?

Lawyer Mou says a lot of these problems are rooted in “treating workplace sexual harassment like it is an ordinary tort between two individuals” – like someone throwing a punch in the street or trespassing on a neighbor’s property – and not as a form of gender-based discrimination in the workplace. Mou thinks framing fighting sexual harassment as an equal rights issue would provide a stronger basis for holding employers to a higher standard. Otherwise, the focus will remain on the individual harasser’s culpability.

Going after individuals while letting employers off the hook will likely dull Article 1010’s impact. Companies, not individuals, have the most power to change workplace cultures that allow harassment to occur and reoccur. With little incentive to take responsibility, companies could just blame a rotating cast of “bad apples” for sexual harassment instead of investing in effective policies and practices.

Mou and Jin, the professor at the China University of Political Science and Law, think this outcome is not yet fated to happen. The Civil Code, despite its drawbacks, still leaves room for courts to maneuver. For example, courts could reason that the onerous cause-and-effect test is not necessary or use a broader definition of “in the course of employment.” We can expect legal advocates to use these openings to make arguments in court, and if the tide really turns in their favor, the Supreme People’s Court could issue guidance to lower courts that is plaintiff-friendly. With these kinds of teeth, Article 1010 might just have a chance to get employers to take fighting sexual harassment seriously.

Darius Longarino is a research scholar in law at Yale Law School and a senior fellow of the Paul Tsai China Center.