On The Burden Of Proof In The Lawsuit Concerning Workplace Sexual Harassment

Workplace sexual harassment is a common phenomenon in industrial society,and is a worldwide topic.Both United States, European Union countries and Australia have a relatively perfect law system on this problem.Researches of China on this issue are not yet ripe.In 2005, the revised "Law on the Protection of Women's Rights" provides that, "prohibition of sexual harassment against women".However,in the absence of supporting measures related to the law, the plaintiff loses the lawsuit more often. The key factor that lead to this situation is that the plaintiff unable to provide sufficient evidences. This paper aims to solve two issues:how to share the burden of proof regarding the case of workplace sexual harassment? how to ease the plight on the burden of proof of the plaintiff?The studies on these two issues base on the main line of the discrete of the two types sexual harassment,and are clarified step by step from the perspective of the presumption of evidence law.This paper is divided into four chapters.The first chapter introduces the concept, the occurrence and the characteristics of workplace sexual harassment, and reveals the plight on the burden of proof that the plaintiff suffered in the lawsuit through a series of cases.The second chapter analyzes the legislative and judicial experiences of the advanced countries with a comprehensive system of sexual harassment, such as United States, the European Union, Australia,and makes a comparison between them,then illustrates their reference value.The third chapter puts forward the burden of proof that the plaintiff should bear in proving that the alleged harasser shoud be liable for the alleged conduct, according to the general rule "who claims,who proves". Then proposes some measures on easing the plight of the plaintiff's burden of proof.The fourth chapter proposes that the employer should be strictly liable for the quid pro quo sexual harassment,and presumptively liable for the hostile work environment sexual harassment depending on the fault of the employer, according to "the principle of agency" and "the employer's obligation to provide a safe working environment". Then elaborates the burden of proof that the employer bears from the perspective of the presumption of evidence law.The employer need not to bear the burden of proof due to the application of absolute presumption rule in the case of quid pro quo sexual harassment, but when it comes to the hostile work environment sexual harassment,the employer should prove that there is no fault in prevention and controlling of sexual harassment beacause of the application of fault presumption rule.It is true that the perspective of burden of proof is very small.To fundamentally reverse the fate that the plaintiff loses the lawsuit more often,and to radically curb the occurrence of workplace sexual harassment,which also relies on the anti-sexual harassment social environment.