China’s first guidance on combating sexual harassment of women in the workplace gets mixed response
- Reference text is a step forward, experts say, but details are lacking in some areas
- Leading #MeToo movement figure says it does not address problem of imbalance of power
The guidance, issued by the Supreme People’s Court and five government agencies including the Ministry of Human Resources and Social Security, could be used as a reference when establishing a system or drafting employment contracts, according to a joint directive released on March 8 – International Women’s Day.
Experts said the issuing of the first such guidance was a step forward, but there were concerns about effective execution.
“This is quite novel,” said Yao Junchang, a lawyer specialising in labour and employment law at Beijing Weiheng Law Firm. He said it was the first time China had issued something so specific targeting sexual harassment of women in the workplace.
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“It offers a more detailed explanation for previous legal provisions on sexual harassment and increases protection of women,” Yao said.
He said the reference text could have a relatively high practical impact because it was jointly issued by so many government agencies.
In China, reference texts are not legally binding documents and they do not have the same legal authority as laws or regulations. But they can provide guidance and interpretations of laws and regulations, and be used as evidence in legal proceedings.
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Yao said the reference text lacked detailed guidance on training victims to retain evidence, and only mentioned that “the complainant should record every detail as accurately as possible and preserve all evidence”.
He said it was generally difficult to gather evidence and retain proof due to the unpredictable and concealed nature of sexual harassment at work.
Also, most instances of harassment were verbal or physical, and cases involving written or visual evidence were relatively scarce. And, due to concerns about the protection of personal information and privacy, it was not feasible to install monitoring devices in the workplace to gather evidence.
Yao said that even though legal protections and grievance mechanisms were in place, sexual harassment cases were challenging to win around the world because retaining proof was difficult, and legal systems demanded solid evidence, not unsubstantiated claims.
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Hong Kong lawmaker Priscilla Leung Mei-fun, who is also a professor of law at City University, said the reference text represented good progress but “didn’t clearly address the problem of victimisation” – the mistreatment and retaliation complainants received after speaking out against sexual harassment or other wrongdoing.
Women are disproportionately affected by harassment at work because of their employment status, the type of work they carry out, or because of the conditions in the sector that they work in, according to a handbook issued by UN Women and the International Labour Organization.
Leung said complainants often faced difficult situations after rejecting advances from bosses – some lost their jobs and others were moved to unpopular positions.
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Ge Chen, an assistant professor at Durham Law School in the United Kingdom, said he doubted it was feasible for people to expect employers to have the moral courage to “dissect” themselves and encourage female employees to reveal such harassment.
He said he also doubted whether women could be expected to freely and boldly express dissatisfaction with their colleagues and superiors when “self-censorship and fear of authoritarianism permeate the entire society, and the entire political culture is dominated by patriarchal ideas”.
“We need to change the power structure, as sexual harassment is caused by various forms of unequal power,” she said.
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The founder of a China-based NGO that offers support to women subjected to violence, who requested anonymity, said that during training sessions at companies she had found many did not take sexual harassment seriously.
Chen said “the easiest thing” for the authorities to do to protect rights was to make laws, and the directive – issued on International Women’s Day – was more of a routine gesture of closeness to the people.
“At a time when Chinese society has experienced all kinds of strange things, and when Chinese women are suffering from various political, economic and social oppressions, this symbolic document is not worth celebrating,” he said. “Nor should Chinese women feel grateful.”
