Recent hot incidents of sexual harassment in the workplace have aroused concern-enterprises must build a system to prevent sexual harassment in the workplace

Sexual harassment in the workplace is not only related to workers’ labor rights and personal dignity, but also related to corporate image. The Civil Code stipulates how to identify sexual harassment from the legal level, and clarifies the obligations of relevant units to prevent and stop sexual harassment in the workplace. Enterprises should establish rules and regulations to ensure that workers are in a safe, hygienic and violence-free working environment, so as to achieve rapid and steady development.

　　In response to the case of "Ali male supervisor infringing on female employees", on the evening of August 14, the public security organ of Jinan City, Shandong Province informed that two criminal suspects had been taken criminal compulsory measures according to law on suspicion of compulsory indecency.

　　At present, the case is still under investigation. With the Civil Code defining the anti-sexual harassment responsibility of employers in legal form, how to build a compliance system to prevent sexual harassment in the workplace and improve the rules and regulations has become a subject that enterprises have to face.

　　Sexual harassment in the workplace refers to the employer’s responsibility

　　Fang Chen, a legal officer of a state-owned enterprise in an energy industry, has been thinking about how to explain the system construction to prevent sexual harassment in the workplace at the meeting of corporate compliance construction in a few days.

　　Engaged in legal work for 8 years, Fang Chen found that some enterprises are not perfect in the establishment of rules and regulations, involving the protection of employees’ personal interests and humanistic care. She said frankly, "Everyone thinks that sexual harassment in the workplace rarely happens and rarely talks about it, let alone form a written system."

　　In fact, the revised Law on the Protection of Women’s Rights and Interests in 2005 and the special provisions on labor protection for female employees promulgated by the State Council in 2012 both stipulate the responsibilities of employers in preventing sexual harassment. The Civil Code, which was officially implemented this year, explicitly requires the relevant units to fulfill their obligations to prevent and stop sexual harassment from the legal level for the first time.

　　The first paragraph of Article 1010 of the Civil Code stipulates that the victim has the right to request the perpetrator to bear civil liability in accordance with the law if he sexually harasses others against their will by means of words, words, images and physical acts. The second paragraph makes it clear that organs, enterprises, schools and other units should take reasonable measures such as prevention, acceptance of complaints, investigation and disposal to prevent and stop sexual harassment by taking advantage of their authority and affiliation.

　　"Sexual harassment in the workplace has its particularity in behavior and legal responsibility." Shen Jianfeng, a professor at the Law School of the Central University of Finance and Economics and dean of the Law School of China Institute of Labor Relations, explained, "The relationship between the superior and the subordinate in the workplace and the closed workplace can easily lead to sexual harassment by taking advantage of this relationship and place, and put pressure on workers to protect their rights. It is precisely because of the correlation between the occurrence of sexual harassment and the management and working conditions of the employer that the law specifically requires the employer to do its duty to prevent sexual harassment. It is also the obligation of employers to respect the dignity of workers and let them work decently. " Shen Jianfeng said.

　　The case law clarifies the employer’s obligation to prevent sexual harassment

　　"Building rules and regulations to prevent sexual harassment in the workplace is also the need of employment management. The Civil Code has clearly required employers to fulfill their obligations to prevent sexual harassment. If the unit does not implement it as an internal employment management rule through regulations, it may lead to employment management difficulties. " Shen Jianfeng pointed out, "Typically, according to the current labor contract law, if the employer does not have regulations to prevent sexual harassment, it is impossible to dismiss employees who commit sexual harassment according to law."

　　After the introduction of the Civil Code, there have been some cases of labor disputes involving sexual harassment in the workplace. Whether the employer can terminate the labor relationship between the two parties on the grounds of sexual harassment by employees, the court gave a statement.

　　Recently, the People’s Court of Pudong District of Shanghai tried a case. Liu sneaked a photo of a female colleague in the workplace and sent it to the WeChat circle of friends with words such as "wife". He also harassed him many times by SMS and WeChat. The company took Liu’s behavior as a serious violation of the relevant provisions of the Company’s Employee Handbook on "Prohibition of Sexual Harassment" and dissolved the labor contract relationship between the two parties. Liu believes that the company’s termination of the act is illegal and appealed to the court. After trial, the court refused to support Liu’ s appeal.

　　In another case, in September 2017, Xiaoling was harassed by many WeChat messages of the company’s "big leader" Ding Mou after she joined the company. Xiaoling turned to Wang, the head of the department, but Wang did not take active measures, and was later dismissed by the company on the grounds of serious violation of the Employee Handbook and the Code of Business Conduct. Wang applied for labor arbitration and asked the company to pay more than 360,000 yuan in compensation for the illegal termination of the labor contract, which was not supported. Wang appealed to the court and rejected Wang’s claim in the first instance. On April 22nd, the Shanghai No.1 Intermediate People’s Court upheld the original judgment and rejected the appeal.

　　The company’s "legal termination" and "no compensation" are the answers given by the court in the above two cases. In the judgment, the court made clear the basis of the trial — — The enterprise has stipulated that "sexual harassment is prohibited" in the form of clear text written in the Employee Handbook, and fully informed the employees. According to Article 39 of the Labor Contract Law, if the employee seriously violates the rules and regulations of the employer, the employer may terminate the labor contract. It is legal for the company to terminate the labor contract accordingly.

　　The employer’s obligation to prevent sexual harassment is also emphasized. In the case of Liu’s dismissal, the judge pointed out that the employer’s dismissal behavior is "a concrete manifestation of fulfilling the legal obligation to prevent and stop female employees from sexual harassment"; The presiding judge of Wang’s dismissal case reminded, "As an employer, it should formulate practical and effective measures to prevent sexual harassment in accordance with the provisions of Article 1010 of the Civil Code and combined with the actual situation of the unit, and strive to form the overall synergy of all employees in the enterprise to prevent sexual harassment through reasonable system design."

　　Respecting the personality of workers is the basic value of enterprises.

　　Zhang Qi is the human resources manager of a hotel in Beijing. Eight years ago, after leaving the hotel, several waiters reported that a male manager of the hotel had developed an ambiguous relationship with several female subordinates and treated them differently in work arrangements according to their closeness.

　　After investigation and verification, the hotel dismissed the male employee and began to implement the "multi-person presence principle" and "leapfrog reflection principle". Zhang Qi explained: "That is, male bosses are not allowed to talk to female subordinates or arrange work in a separate closed space; Employees report sexual harassment and are allowed to leapfrog. "

　　However, Zhang Qi admits that these two points have not formed written rules and regulations, and they are only verbally emphasized at regular meetings or employee open days. He also said that enterprises have certain difficulties at the implementation level. "For example, enterprises have no law enforcement power and it is difficult to obtain evidence. In addition, how to protect the privacy of employees is also a problem. "

　　As the legal director of a software service listed company in Beijing, Villi introduced to the reporter the anti-sexual harassment mechanism that his company has built: "Sexual harassment is prohibited" in the Employee Handbook and the Employee Code, and it is preached in the employee induction training; Open the reporting channels, and publish the reporting telephone number and email address; After receiving the report, the human resources department, the internal control department and the legal department jointly intervened in the investigation.

　　"After the recent social hot events, the company clearly mentioned at the high-level communication meeting that it should focus on sexual harassment in the workplace and prepare to further improve the early warning mechanism." Villi said.

　　A few days ago, the Rights and Interests Department of the All-China Women’s Federation issued the Guidance Manual on Prevention and Treatment of Sexual Harassment in the Workplace, which gives guidance to employers on how to prevent and treat sexual harassment in the workplace, including establishing and improving rules and regulations for prevention and treatment of sexual harassment in the workplace, conducting education and training, establishing specialized institutions, and clarifying handling procedures.

　　"In order to achieve a stable and far-reaching development of modern enterprises, we must have a positive corporate culture and assume necessary social responsibilities for the environment, women, workers and consumers." Shen Jianfeng said, "Respecting the personality, dignity and freedom of workers is the values that enterprises should establish and the guarantee for building harmonious labor relations."

　　(At the request of the interviewee, Fang Chen, Zhang Qi and Villi are pseudonyms.)