The Civil Code, effective from 1 January 2021, makes it a statutory obligation of employers to prevent workplace sexual harassment. This article aims to provide practical suggestions for employer’s compliance governance in anti-workplace sexual harassment.
How is it defined?
The Civil Code outlines the manner in which sexual harassment occurs. The authors believe that workplace sexual harassment should be interpreted in a broad sense, as in behaviours relating to sex and against the will of employees, which occur in the workplace, in the process of work, or based on working relationships, taking the form of, among others, words, texts, images and physical behaviour.
In practice, employers will mainly face public opinion and legal risks when dealing with workplace sexual harassment incidents. The details are as follows:
Public opinion risks. If the employer lacks a reasonable anti-sexual harassment policy, or fails to take appropriate countermeasures, it may easily find itself caught between a rock and a hard place. If the reasonable demands of the aggrieved employees cannot meet timely responses, the employer is likely to endure a public relation crisis.
Legal risks. The lack of an anti-sexual harassment policy and effective handling methods by employers can easily lead to civil tort or labour disputes. For example, an aggrieved employee may request that the employer and the offending employee be jointly held liable for sexual harassment damages on the grounds that the employer failed to take measures to prevent workplace sexual harassment. If the employer internally published the content of sexual harassment, such as the offending employee’s name, work number, or details to the offence, the offending employee may also file a lawsuit claiming that the employer has infringed on his/her reputation.
Furthermore, with the promulgation of the Personal Information Protection Law, disputes in which employees involved in sexual harassment incidents claim that employers are negligent in protecting personal information will likely increase. Since sexual harassment is usually conducted in anonymity, it may be difficult for employers to obtain valid evidence and consequently face a high risk of losing in labour disputes caused by terminating the employment of offending employees.
In view of the above-mentioned public opinion and legal risks inherent in sexual harassment cases, the authors suggest that employers should focus on policy improvement and formulation of operating guidelines. Details are as follows:
Identify and punish workplace sexual harassment. Employers may define workplace sexual harassment (e.g. sending sexual messages or telling pornographic jokes without consent) in a general description and a specific list. Meanwhile, employers should classify violations of discipline by the seriousness of the action, and accord corresponding punishment measures, such as a serious warning, or termination of the labour contract.
Set up a designated committee and clarify the handling process. Employers should set up a special committee for dealing with workplace sexual harassment. The committee can be composed of personnel from human resources, the compliance department, trade union, etc. Employers should also clarify the basic procedure for handling sexual harassment incidents, which generally is divided into four stages, namely accepting complaints, pre-investigation preparation, investigation and resolution.
Clarify the investigation period and secure evidence. Employers should specify the procedures for and period of investigation, and evidence collection by the special committee, including tasks to be completed at each stage of the investigation and the time limits. Within the specified period, the special committee should complete the investigation procedures and issue a detailed written report as the basis for the final decision.
Add liability exemption clauses. Employers may include a liability exemption clause in its internal rules and regulations, providing that if the employer has taken effective measures to prevent sexual harassment, the employee will exempt the employer from legal responsibility in the relevant disputes.
The purpose of formulating operating guidelines is to provide guidance for the employer to internally handle sexual harassment incidents. The guidelines should at least include the following:
Establish principles for handling sexual harassment incidents. Employers should handle sexual harassment incidents in accordance with the principles of reasonable necessity, confidentiality, objectivity and impartiality, and, in particular, the number of participants in the sexual harassment investigation, and the inquiry and investigation content should be contained to a reasonable and necessary extent.
Strengthen confidentiality obligations. For the personnel responsible for handling sexual harassment incidents, employers should require them to sign a confidentiality agreement or a letter of commitment. The employer has the right to recourse for losses caused by any unauthorised disclosure of the employee’s private or personal information.
Caring and relief measures. Employers should provide humanistic care to victims in a timely manner. For example, employers may schedule days off for employees, and keep an eye on their status and whereabouts. Employers may also pay for professional psychological counselling to ease their stress.
Set out specific operating guidelines for typical scenarios. To achieve a speedy response, it is necessary for employers to set operating guidelines for typical scenarios in advance. For example, guidelines can provide detailed directions on conducting interviews such as the identity and number of participants, the interviewee, and the sequence of questions. Normally, it is recommended to start with the victims. Two interviewers should represent the employer, one from the special handling committee and one external lawyer.
At the same time, when determining the interviewers, the gender of the interviewee should also be considered. During the interview, an investigation of facts can be carried out according to the list of interview questions prepared in advance, and the interview should be recorded and transcribed if the then circumstances permit. In case of any emergency, the interview should be suspended, and participants will respond after careful co-ordination and deliberation.
Tracy Liu is a partner and Larry Lian is a counsel at Jingtian & Gongcheng
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