Workplace Sexual Harassment And Its Legislative Control

Workplace sexual harassment is a violation of human rights and dignity, which hinder the equality and harmony between men and women. It is a common phenomenon in the field of occupation that renders women the main victims. So far, the majority of countries all over the world have managed to regulate such action by means of specific legislation or some forms of legislations covering workplace sexual harassment. However, our legal system regulating the problem is in the embryonic stage, and there are still many gaps as well as loopholes in the legislation need to be filled and perfected.This paper will put forward the issues in the first part. The author selects four typical cases and, through the brief introduction of which, exposes the types of problems exist in workplace sexual harassment rules of our country. The issues include the Legislative gaps in the defining of workplace sexual harassment, the judgment of the nature of violated object, the allocation of the onus probandi, the protection of victims, relief channels, the employers'responsibilities as well as the practical difficulties of "hard file", "hard evidence" and "hard compensation" caused by the legislative gaps.The following part gives a brief analysis of generic issues. Workplace sexual harassment refers to any sexual words and deeds behaved by the employers, supervisors, colleagues, subordinates, customers or other partners in the workplace, which are unwelcome and undesired behaviors render others constrained, humiliated, or fall into a intolerable condition full of hostility. The workplace sexual harassment can be categorized as the following four types: 1.Quid pro quo sexual harassment; 2.Hostile work environment harassment; 3.Sexual Favoritism; 4.Harassment by Nonemployees. Since workplace sexual harassment infringes the victim's sexual autonomy as well as the equal rights of employment and places the negative influence and harm on the victims, infringers, employing enterprises and even the whole society, the legislative system about the workplace sexual harassment is of an urgent necessity. China should accelerate the pace of legislating of relevant laws to punish the responsible sexual infringers along with the employers so as to protect the legitimate rights of victims.In the third part, it presents the legislative experience of foreign countries including United States, Australia and France. This part compares and analyzes the experience about legislation of workplace sexual harassment of the three representative countries, which lies mainly on the legislative survey, the employer's responsibility, the relief channels for victims and onus probandi, and the punishment for workplace sexual harassment. The experience of the United States proves that a legal issue can be regulated by different nature laws. Workplace sexual harassment can be dealt in the field of the Constitution, the Penal Code, the Labor Code and the Civil Code without conflict. The dispute settlement mechanism of sexual harassment of Australia is more flexible and diverse for many of the agencies and enterprises have a complaint mechanism to resolve internal disputes. Lots of sexual harassment disputes are solved through mediation with only a few cases appealed to court. French regulates the workplace sexual harassment primarily according to the Labor Code. Both the Labor Code and the Penal Code prescribe the criminal penalties.The last part aims to expound the about legislation against the workplace sexual harassment. It reviews and analyses the current situation of Chinese mainland, pointing out the legislative loopholes, such as the lack of operation value and pertinence. Reckoning with the cost and the stability of legal system, it is not appropriate to establish the unified anti-sexual harassment law in China. What we should do now is to improve the legal system within the existing legal framework. 1. Improvement of the Constitution. We should increase the legal provision that everyone is protected from sexual harassment in the Constitution so as to establish the most profound theoretical basis for the declaration of the rights. 2. Improvement of the civil law. We should recognize sexual autonomy as a separate specific legal Personal Right, and give accurate definition to the object infringed by workplace sexual harassment. In tort law, sexual harassment should be regarded as an independent form of tort, and lay down special regulation to workplace sexual harassment. 3. Improvement of the Woman's Rights Protection Law. It recommends that the local legislature should further interpret the legal provision against workplace sexual harassment, and clearly define the responsibility of employers.4. Improvement of Company Law. Company Law should regulate obligations of enterprises to hold pre-job sexual harassment training. In addition, large and medium-scale enterprises are proposed to lay down "rules forbidding workplace sexual harassment". 5. Improvement of the labor legislation. At present, the most practical approach to eliminate workplace sexual harassment is to add legal provisions forbidding such behaviors to the law. It is necessary to clearly define the concept and scope of workplace sexual harassment, to regulate relief measures, to specify protection measures, and to establish the system of economic compensatory damages and punitive damages. 6. Improvement of Civil Service Act. It is better to add the Legal provisions that prohibit workplace sexual harassment with the aim to keep them clear and be self-discipline. It is necessary to define the procedure of appeal. Once there is the Sexual harassment among the civil servants, strict punishment should be carried out. 7. Improvement of Criminal Law. Independent criminal provisions should be laid down in view of benefit-exchange sexual harassment. Give clear definition to the crimes of workplace sexual harassment and add punishment legal provisions. 8. Improvement of Code of Civil Law. The author believes that it is necessary to establish and carry out the transfer of onus probandi responsibility, and to lay down the provisions that compel witnesses bear witness in court. Moreover, if the victims apply, the case would not be adjudicated publicly protect the privacy of victims.