The risks for employers in China’s growing #MeToo movement
The #MeToo movement against sexual harassment and sexual assault has become a global phenomenon. Indications are that it is also having an impact in Mainland China.
There are certain changes in the legal environment afoot and, more fundamentally, there appears to be a shift in public perception, awareness, and willingness to speak out and act against sexual harassment.
This is an issue that businesses with operations in China should definitely have on their radar. The People’s Republic of China (PRC) still does not have a unified or detailed body of law on sexual harassment. The Law on Protection of Women’s Rights and Interests (2005) prohibits sexual harassment against women and provides a right for victims to file complaints to their employer or with law enforcement authorities.
However, there is no clear and uniform definition of what constitutes harassment. Related local regulations in cities such as Shanghai and Beijing also offer limited guidance. As a result, very few cases have actually been filed.
Rapidly changing landscape
Recent draft amendments to the PRC Civil Code include new protections. In particular, the draft has a definition of sexual harassment as unwelcome behaviour against another person through sexual language or actions, or sexual advances towards a subordinate.
This would include male employees and suggests that the emphasis will be on how the behaviour affects the recipient, which would significantly extend the level of protection.
The draft also provides that employers must:
- take reasonable steps to prevent sexual harassment; and
- implement procedures for filing and handling complaints by employees.
There may be further changes to the wording, but this is expected to take effect in March, 2020. And Jiangsu Province has already effected local regulations (in July 2018) with similar requirements for employers.
Against this background, and with the international prominence of the #MeToo movement, awareness, discussion, and reporting of sexual harassment in China has increased significantly in the last year . During the FIFA World Cup, users on Weibo, China’s largest social networking site, fervently debated two incidents of fans trying to kiss reporters (one male, and one female) undertaking live broadcasts. Users questioned why female fans were not criticised for this behaviour, while male fans doing the same were accused of sexual harassment.
Individuals are making their voices heard
A university professor in Jilin was fired following an internal investigation after a female employee accused him of sexual harassment online. Weibo users flooded the university’s page with comments, asking about repercussions and suggesting that the university had not done enough to combat the problem.
A number of other high-profile cases involving academics have followed. This is in stark contrast to previous reticence to make complaints because women thought it would affect their career development or reputation, due to lack of evidence, or simply because there was no realistic expectation of adequate resolution or legal redress.
Employers in China cannot ignore sexual harassment and should develop an environment which prevents sexual harassment and any related retaliation. It is important to implement specific rules and requirements with clear procedures for making complaints and for investigating and handling claims, and details of disciplinary actions for breach.
The power of social media means that there is risk of severe reputational damage, as well as an increasing risk of legal liability for employers.
About the author
Matthew Durham is a Partner with the global law firm Simmons & Simmons