Research On The Employer's Liability Of Workplace Sexual Harassment

With the development of economic and constant adjustment of social structure, social life's diversity and complexity collapse people's moral concepts and value systems. The whole world pays attention to the human right. At the same time, facing the sexual harassment which is in the global warming trend, especially the workplace sexual harassment, most of the countries are committed to make an effort to do legislation and prevention of sexual harassment. Workplace sexual harassment which is as a society toxin and general social phenomenon has been widely existed in the fields of employment, education and social groups that provide social members personal development and opportunities of economic independence. Workplace sexual harassment not only brings threat and harm to victims'physical, but also affects victims'career and development. Even more, it seriously leads to victims'spiritual devastation and damage. Sexual harassment which originated in the industrialized American society is gradually to maturity and perfection after a long legislative procession. America has established relief routes, such as employer's liability and corporate preventive mechanism in order to prevent and control workplace sexual harassment. Then it is widely followed in most countries of the world. Facing severe employment situation and exile rights mechanism to expansion, as the by-product of workplace, the workplace sexual harassment has been performed continuously because of constant happening of using power to seek sexual interests. Workplace sexual harassment is also generally prevalent at the moment in China. The reason is that our country is lacking in relief system of workplace sexual harassment and the legal regulation of sexual harassment is presenting a blank state. All that leads to advert and embarrassment of judicial relief. The dissertation draws on the relief system of workplace sexual harassment——employer's liability which is prevalent in the United States and other developed countries and combines our theory of employer's liability. It aims to do theoretical exploration and research on employer's liability of workplace sexual harassment in doctrine of liability fixation, composition, morphology and commitment. Meanwhile the dissertation makes the design of legal system in adopting employer's liability to regulate workplace sexual harassment. It consists of six chapters in addition to introduction and conclusion.ChapterⅠ﹕The protection for victims of workplace sexual harassment in tort law approaches. Workplace sexual harassment which occurs in the workplace is a violation of victim's personality right. As the workplace sexual harassment happens in the special place, both labor law and tort law could become the regulated means of workplace sexual harassment. This chapter which starts from the legal adjustment formula of workplace sexual harassment analyses tort law's advantages to provide legal protection and relief for victims of workplace sexual harassment and discusses the legal value and legal function for tort law to regulate workplace sexual harassment. At the same time, from the perspective of jurisprudence and economics this chapter discusses the reasonableness with applying employer's liability to prosecute the workplace sexual harassment.ChapterⅡ﹕The investigation of the source about employer's liability of workplace sexual harassment. Workplace sexual harassment has been originated from the United States as early as the twentieth century, seventies. The United Sates is also the first country to determine the workplace sexual harassment to be illegal through legislation and endues employer's obligation to prohibit the occurrence of workplace sexual harassment. Most of the countries learn from American legislative concept and judicial precedents of regulatory system, largely from the perspective of public and private law to establish workplace protectionism and right protectionism in order to adjust workplace sexual harassment. This chapter analyses the legislation and judicial practice for preventing workplace sexual harassment in United States, Germany, Japan and other countries and regions. Then on the basis of our legal system for prevention sexual harassment the chapter attributes to a proper legal system of Chinese anti—sexual harassment which has become essential.ChapterⅢ﹕ The doctrine of liability fixation for employer's liability of workplace sexual harassment. First, the doctrine of liability fixation is the core issue in tort liability. The doctrine of liability fixation of employer's liability should be reasonably attributed, because it has a direct impact on determination of employer's liability system and attribution of doctrine of liability fixation for workplace sexual harassment. Second, the types of workplace sexual harassment directly impact on the division of employer'liability of doctrine of liability fixation. Different sexual harassment in violation determines the employer liability's doctrine of liability fixation to different. It can maximize the protection for workplace sexual harassment victims'legitimate rights and interests, and effectively motivate employers to take reasonable measures to avoid the occurrence of workplace sexual harassment.ChapterⅣ﹕The composition of employer's liability of workplace sexual harassment. Employer's liability depends on the existence of employment relationship. The relationship between employers and employees is the prerequisite of employer's liability. Clearing the criterion measure of employment relationship is rather important for employer's liability to establish. The tortuous delinquency of sexual harassment which associates with the employment activity is the core element and the key of employer's liability. This chapter focuses on the employment relationship and duty scope of employment activities. Then it analyses the choice of determinate standard which is related to employment relationship and employment scope of activities in China.ChapterⅤ﹕ The morphology and commitment of employer's liability of workplace sexual harassment. After discussed the doctrine of liability fixation and composition, the morphology of employer's liability for workplace sexual harassment specially solutes the problems which relates to how to allocate the liability of damages for infringement between the parties. The way that employers undertake the responsibility for sexual harassment is a specific method which employers compensate for victims'damage. Different damages which is caused by sexual harassment leads to different approaches of compensation for damage. This chapter discusses in detail the nature and characteristics of different employer's liability which is caused by the different doctrine of liability fixation for employer's liability and systematically sums up the commitment approach of employer's liability of workplace sexual harassment. There are only to adopt different approaches to compensate the different damages in order to achieve accurate violations of workplace sexual harassment and pursuit for liability of compensation for damage. All these lead to full protection of the legitimate rights and interests of victims of sexual harassment.ChapterⅥ﹕The system outlook of employer's liability of workplace sexual harassment. This chapter analyses the legal regulation of workplace sexual harassment and typical cases in China. Then it sums up the embarrassment of the legislation which takes the distress and disadvantage for victims and judicial practice. Meanwhile this chapter combines legal system's status of employer's liability to make an effort to make up the gaps of regulation in the way of judicial interpretation. It should improve the related legislation system of sexual harassment while integrating with other administrative and management systems, employing units'system, litigation system and makes them coordinately and jointly to play an important and efficient role to prevent the workplace sexual harassment.This dissertation mainly discusses the widespread issues of workplace sexual harassment which leads to judicial relief adverse and serious consequences because of the blank status of legal regulation. Then on the basis of the successful reference on the prevention system of workplace sexual harassment in the developed countries and combination with our country's national conditions and legal system, the dissertation tries to design the remedy for victims of workplace sexual harassment——employer's liability. Also, the dissertation comprehensively elaborates the employer's liability of workplace sexual harassment in doctrine of liability fixation, composition, morphology and commitment, and then enriches its content. What is more importantly is that it puts forward the building of employer's liability for workplace sexual harassment and the perfection of other relevant prevention systems.