| In recent years,with the continuous refinement of social division of labor,more women have played a more important role in the workplace,the interaction between the sexes has become increasingly frequent,and sexual harassment incidents in the workplace have been reported frequently.Article 1010 of the Civil Code regulates sexual harassment at the basic law level for the first time,which lays the legal foundation for regulating sexual harassment by private law.However,this regulation is not aimed at workers,but regulates the civil legal relationship between the actor and the victim,and the protection of workers’ employment rights and interests within labor relations should be discussed within the framework of labor law.At present,there is no direct provision on sexual harassment in the workplace in China’s labor laws and regulations.Sexual harassment by superiors to subordinates is a unique form of sexual harassment in the workplace.The power factor of the perpetrator interferes with the expression of the victim’s willingness to refuse to be tempted.Therefore,sexual harassment in the workplace can be divided into dominant sexual harassment and equal sexual harassment according to the authority of the perpetrator.The theory of subordination of labor relations and the theory of working environment right can be used as the theoretical basis for labor law to regulate sexual harassment in the workplace.The Law on the Protection of Women’s Rights and Interests,revised in 2022,integrates the legislative norms scattered in different fields.Although it refines the compulsory provisions of employers to prevent sexual harassment in the past,there are still some shortcomings.The legal responsibility of employers for failing to fulfill their prevention and control obligations is still unclear.From the perspective of judicial practice,it is difficult for the victim to prove because of the concealment and suddenness of sexual harassment.The fact-finding standards of sexual harassment cases in the workplace are not uniform,which is not conducive to protecting the trust interests of the parties.Therefore,based on the foundation and background of China’s current legal system,combined with the legislative experience of other countries and regions,we should improve the identification standard of sexual harassment in the workplace at the level of labor substantive law regulation.In addition to the objective nature of behavior and work-related,the subjective "others" in "against others’ wishes" should take whether a rational person feels offended as the identification standard.At the same time,the employer should make a special chapter or section in the rules and regulations on the manifestations and severity of sexual harassment,and establish formal and informal complaint handling procedures to ensure that the unit can carry out relevant investigations in an orderly manner after receiving complaints.In order to avoid the legal risk of the employer after fulfilling the obligation of prevention and control,the employer can refer to the principle of proportionality in administrative law when taking disciplinary measures against the perpetrator,so as to balance the interests of both employers and employees reasonably.In view of the fact that the prevention and control of sexual harassment is the legal obligation of the employer,if the failure to fulfill the prevention and control obligation leads to the loss of workers’ work interests,the employer shall bear civil liability and administrative liability.In order to ensure the effective settlement of sexual harassment disputes in the workplace,we should also improve the relief mechanism of workers’ rights,establish an administrative appeal system in the labor department,and rationally distribute the burden of proof between the two parties in judicial decisions,so as to comprehensively protect the legitimate rights and interests of workers. |
