Civil code draft enhances harassment protection

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民法典草案加强性骚扰保护-Civil-code-draft-enhances-harassment-protection

The National People’s Congress (NPC) of the People’s Republic of China on 5 September 2018 publicized a new draft of Several Sections of the Civil Code on its official website, seeking public comment on the draft. Article 790 of the draft provides more detailed regulations on sexual harassment protection and follows a wider and continuing trend in China to protect people from sexual harassment. The draft includes the following changes to sexual harassment protection law:

1.Defines “sexual harassment”. To date, no national law has defined sexual harassment, although some cities, such as Beijing and Shanghai, have defined sexual harassment in their local regulations. The draft, for the first time on a national level in China, provides a definition for sexual harassment. According to that definition, sexual harassment means unwelcome behaviour against another person in the form of sexual language or actions, or by sexual advances against a subordinate. This definition of sexual harassment represents a breakthrough for PRC national law in protecting people from sexual harassment.

2.Expands the scope of persons protected against sexual harassment to include men. Under current national laws, sexual harassment is only regulated in the Protection of the Rights and Interests of Women and the Special Provisions on Labour Protection of Female Employees. According to these laws, only sexual harassment against female employees is prohibited. The draft will prohibit sexual harassment against “another person” instead of just female employees, which indicates that the scope of protection will now include both men and women.

3.Establishes more detailed obligations for employers. Current national law only states that employers must prevent and prohibit sexual harassment against women, without providing any details as to the exact measures employers should take to fulfil their obligation. The draft provides employers with more details, for example, employers must take measures to prevent sexual harassment in their companies, establish sexual harassment complaint procedures and formulate sexual harassment settlement solutions. Despite these slightly more detailed instructions for employers, many local regulations still contain more detailed requirements for employers, especially in terms of preventative measures. For example, Jiangsu province requires employers to formulate anti-sexual harassment policies, provide training to employees and establish effective employee complaint channels.

Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Danian Zhang (Shanghai) at [email protected]