Research On Employer's Tort Liability For Sexual Harassment In The Workplace

At present,the unhealthy tendency of sexual harassment in the workplace in China is getting stronger and stronger.It has become a common understanding in many countries that employers should have the duty to prevent sexual harassment in the workplace and should bear tort liability if they fail to do so.It has been formally legislated by many countries and constitutes one of the core links in the system of preventing sexual harassment in the workplace and plays an irreplaceable role.China should construct the tort liability system of sexual harassment employer based on the reasonable reference of foreign legislation on sexual harassment employer tort liability.The accurate definition of the concept of sexual harassment in the workplace is a prerequisite for the establishment of tort liability of employers for sexual harassment in the workplace.The concept of sexual harassment in the workplace should be defined as the deliberate conduct of sexually suggestive and undesirable serious violations of the personal rights of employees at work.Workplace sexual harassment should be identified from four perspectives:fault,means,consequences and place.Labor contract theory and economic analysis theory are the theoretical basis for the establishment of tort liability of sexual harassment employers in the workplace.The two results show that the employer's prevention of workplace sexual harassment is not only the obligation of the employer,but also the best strategy of the state to prevent workplace sexual harassment and the rational choice of the employer to optimize the operation.Therefore,the employer's tort liability for workplace sexual harassment should be established to urge and warn the employer to prevent workplace sexual harassment.The presumption of fault principle is the only imputation principle of employer tort liability for workplace sexual harassment.The idea that the employer bears vicarious liability under the so-called exchange sexual harassment and the principle of liability without fault is not reasonable should be rejected.Workplace sexual harassment components of tort liability including the employers in the offender is objectively help implement workplace sexual harassment behavior,the victim suffered a major personality right abuse,employers help employee behavior and sexual harassment a causal relationship between personality right to suffer a serious violation and employers subjective fault has four elements.The standard of the employer's subjective fault is that the employer's behavior violates the employer's duty to prevent sexual harassment in the workplace.The determination rule of employers' violation of duty to prevent sexual harassment in the workplace should be expressed as employers'failure to take reasonable measures to stop sexual harassment in the workplace in time.The employer's tort liability for sexual harassment in the workplace can be assumed by stopping the infringement,making an apology,compensating for the loss,eliminating the influence and restoring the reputation.The liability bearing form of the employer's tort liability should be that the employer and the employee of the tortfeasor bear joint liability when they cannot prove that they are not at fault.The legislative construction of employer tort liability for sexual harassment in the workplace in China should follow the following ideas:On the one hand,the coming civil code of personality rights will stipulate the concept of sexual harassment,the torts liability of sexual harassment perpetrators and the employer's duty to prevent sexual harassment in the workplace.On the other hand,the tort liability part of the civil code completely stipulates the employer's tort liability for workplace sexual harassment,including the imputation principle,constitutive elements,mode and specific form of the employer's tort liability.The purpose is to cooperate with the provisions of the civil code on the right of personality part,so as to achieve self-consistency in the internal logic of the civil code.