Alibaba, China’s largest e-commerce company, has announced in August 2021 that it will set up a committee, initially comprising five female senior executives, to investigate sexual harassment complaints.
This move comes few days after a female employee of Alibaba went public with an 11-page account on stating that her manager and a client has sexually assaulted her. When she reported the incident; her superiors and human resources did not take her report seriously.
After the incident came to light; Alibaba fired the manager accused of sexual assault and announced that it has built another team, called ALI-WE, to “examine and eradicate inappropriate workplace behaviour reported by employees,” such as “forced drinking culture and tasteless comments that make the workplace uncomfortable”.
Alibaba also promised to include workplace culture and gender quality status in is annual ESG report and institute sexual harassment prevention and self-defence employee training.
This incident made us wonder as to how prevalent is sexual harassment in China and what are the laws in place to deal with it?
1. History & Statistics
China enacted its first provision in a national law (Law of the People’s Republic of China on the Protection of Rights and Interest of Women) prohibiting sexual harassment in 2005. The provisions introduced are as follows:
Article 40 – Sexual Harassment against women is prohibited. The female victims have the right to file complaints with the concerned units and departments.
Article 58 – Where a person, in violation of the provisions of this Law, commits sexual harassment or domestic violence against a woman, if such act constitutes a violation of the regulations for administration of public security, the victim may apply to a public security organ for an administrative sanction against the violator and may also bring a civil suit in People’s Court.
Sexual harassment has not been defined. Neither a redressal mechanism is provided as to how departments will deal with complaints of Sexual Harassment. There are no provisions stating Employer’s responsibility in preventing and prohibiting sexual harassment at workplace.
In Indian context, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) provides:
- Exhaustive definition of sexual harassment, employee, employer, and workplace
- Constitution of Internal Complaints Committee in the organization to only deal with Sexual Harassment Complaints
- Duties of employer and
- Penalties for non- compliance
A study by the Beijing Yuanzhong Gender Development Center, a women’s rights organization, conducted in 2019, found only two court judgments involving survivors who had sued their harassers, between 2010 and 2017. Both lost.
A survey of female journalists conducted in China in 2018 had revealed that 80 percent of them had experienced unwanted sexual advances.
2. China & the MeToo era
In 2018 Zhou Xiaoxuan (“Zhou”), a young woman in a series of social media posts, described a 2014 incident when she was an intern working for Zhu Jun (“Zhu”), a well-known television presenter. Zhou said he tried to reach into her dress and then forcibly kissed her. Zhou’s accusation quickly went viral.
Even though the nature of the alleged incident clearly amounted to Sexual Harassment at Workplace; Zhou’s claim was filed as a “personality rights” dispute, a category which includes rights relating to one’s body and wellbeing, on the basis that the existing law in on sexual harassment in China did not provide sufficient clarity or source of redressal.
Due to the #MeToo movement; “sexual harassment” became a part of the Chinese media discourse and sexual harassment complaints were reported in China.
In January 2018, a Beijing university fired a professor accused of sexually harassing a former student. In July 2018, a well-known charity founder stepped down from his role after being accused of raping a volunteer during a fundraising event back in 2015.
3. Problems faced by #MeToo Cases in China’s Courts
- Collecting evidence is difficult
Sexual harassment often occurs in private, leaving little evidence. The Supreme People’s Court’s rules on evidence in civil litigation provide that the testimony of a survivor cannot be the sole basis for establishing a fact in a case. Chinese courts also disfavour witnesses related to a survivor, including friends, family, or employees.
- Character ad evidence
China does not have restrictions on the use of so-called “character evidence.” Lawyers can ask survivors questions about their personal life and sexual history to insinuate that the survivor had “invited” the sexual advance.
- Damages awarded by court are low
Chinese courts see receipts while calculating compensation. Survivors who do not incur concrete costs get little or no compensation, even if they suffered mental distress. In July, 2020 in a case, the court only ordered the accused harasser, Liu Meng, a well-known figure in the non-profit world, to give the survivor an apology for harassing her when she worked for his organization. He never did.
- Harassers can counterattack with their own lawsuits
Lawsuits by alleged harassers far outnumber suits brought by survivors. A person against whom public allegations of
sexual harassment are made can bring a defamation suit against the survivor.
In 2018, Zhou Fei, former Chief Program Officer at the World Wildlife Fund, sued a former colleague, Wang Qi for defamation because she posted an account on social media as to how Zhou accosted her on a business trip in 2016. The court ruled that since Wang Qi failed to provide sufficient evidence to prove her allegations, she had spread “false information.” The court ordered Wang to delete her post and give Zhou a written apology.
- Employers Who Fire Alleged Harassers Are Often Sued by such harassers for Illegal Termination
Employees who have been fired for sexual harassment can bring cases against their employers for illegal termination, contending that the allegations are baseless. The Labour Contract Law allows an employer to fire an employee only for certain reasons, such as a serious violation of company policy and it is the employer—who bears the burden of proof in an illegal termination suit. If the employer cannot meet its burden, the employee can demand reinstatement and lost wages, or double severance pay.
4. The New PRC Civil Code
China’s first-ever Civil Code comes into force on January 1, 2021. Article 1010 provides that an individual can bring a civil claim against a person who engages in sexual harassment toward her or him “in the form of verbal remarks, written language, images, physical behaviour or otherwise,” against her or his will. It states that enterprises, schools, agencies, and similar organizations must adopt reasonable measures to prevent sexual harassment and implement a system for receiving, investigating, and handling complaints. It is significant to note that:
- The concept of “sexual harassment” is defined for the first time.
- The scope of victims is now wider and no longer restricted to just women.
- Employers have specific and clear obligations to be proactive in preventing sexual harassment, implement procedures for handling complaints and take disciplinary action where appropriate.
The civil code is a significant step taken by China to address the issue of sexual harassment at workplace.
– Vaishali Jain, Advocate & Associate – POSH at Work