Research On The Civil Tort Liability Of Employers In Sexual Harassment In The Workplace

Since a large number of women entered the workplace,sexual harassment has become a common occurrence in the workplace.After the concept of "sexual harassment" was introduced to China at the end of the 20 th century,the study of sexual harassment in the legal field has gradually emerged with the development of society.Due to the increasing number of sexual harassment cases in the workplace,sexual harassment in the workplace has become a social issue of widespread concern in society.Sexual harassment in the workplace is a tort that directly violates the human dignity of workers,causing both physical and mental torture,and creates a hostile,coercive and oppressive working environment,which makes workers uncomfortable and brings profound negative impact on the whole society.With regard to the regulation of sexual harassment in the workplace,most developed countries and regions,represented by the United States,have developed and perfected a legal system to regulate sexual harassment in the workplace with the employer’s responsibility as the core.In contrast,the theoretical research on sexual harassment in the workplace in China is still in the primary stage,and the legal regulation of employer’s tort liability is also in a blank situation,so that there is no way to rely on the judicial dilemma,and the victims have nowhere to seek remedy or obtain insufficient remedy,so it is necessary to investigate the employer’s tort liability in sexual harassment in the workplace and build a legal system to regulate sexual harassment in the workplace.To explain why employers are liable for sexual harassment in the workplace,a set of theories is needed as a jurisprudential basis,including the theory of liability for retribution,the theory of hazard control,the theory of social cost,and the employer’s duty of safety and security to its staff.The key element of the employer’s liability for damages caused by an employee can be found in the Civil Code on employer’s liability,and the key element of the employer’s vicarious liability for the employee is that the tort committed by the employee is an act in the performance of his or her duties.Since sexual harassment is a personal violation,not done for the benefit of the unit and not related to the execution of duties,the employer is not vicariously liable for the sexual harassment committed by the employee.Article 1010 of the Civil Code specifies the direct responsibility of the perpetrator and the obligation of the employer to prevent sexual harassment,which is a statutory duty of care and is the employer’s obligation to ensure the safety of its employees,and if it fails to do so,it is the employer’s fault that causes damage to the victim,for which the employer is liable,i.e.,its own responsibility.The perpetrator of sexual harassment and the employer who failed to fulfill the obligation to prevent and control sexual harassment should both bear the tort liability for their own fault,while the employer bears its own responsibility for violating the statutory duty of care,so the employer bears the responsibility not jointly and severally with the perpetrator’s tort liability,supplementary liability or contributory liability,but bears separate tort liability.Since the employer’s breach of duty is negligence,and the perpetrator’s sexual harassment is intentional,there is no joint intention or joint negligence between them,so they do not constitute joint infringement and do not bear joint and several liability.At the same time,because in the supplementary liability,the employer as the second responsible person has the "sequential interest" and the right of recovery,which will lead to the perpetrator to bear the final responsibility,while the employer does not need to bear their own fault responsibility,so the employer does not bear the supplementary liability.After determining that the employer should bear the tort liability,the liability can be divided into tort liability and non-tort liability,while personal and property damages,moral damages and the hope of introducing a punitive damages system are all tort liability,while apology,elimination of influence,restoration of reputation,restitution can be included in the non-tort part of the compensation.