As mentioned in Part I of this series, in January 2019, the PRC Supreme Court issued a decision that paved the way for sexual harassment lawsuits in China. Before then, sexual harassment lawsuits were impossible, although it was possible to file a lawsuit by recharacterizing the same conduct in a manner that would permit a lawsuit based on legal grounds that were available at that time.
It’s a new world now, and subsidiaries of overseas companies operating in China need to read the handwriting on the wall so that they don’t get blindsided by a sexual harassment lawsuit that they didn’t even see coming. One of the ways of preparing in advance for a rapidly changing legal environment is by instituting mandatory sexual harassment training for all company employees.
There are two main reasons why your company needs to institute formal sexual harassment training: (i) to prevent workplace sexual harassment from occurring in the first place, and (ii) to relieve your subsidiary of liability in the event that sexual harassment occurs despite your best efforts to prevent it (which is a highly likely scenario).
PRC Workplace Sexual Harassment Law a Few Years Down the Road: Gazing Into the Crystal Ball
An examination of current sexual harassment law in China can help predict what may be coming next, which is critical to designing a realistic sexual harassment training program for your company. As detailed in Part I of this series, sexual harassment law at the national level is as thin as a coat of paint. Nevertheless, whenever national authorities do get around to revising national sexual harassment law, they are likely to look at what’s been working in the provinces.
Workplace Sexual Harassment Law in Jiangsu Province – A Model for the Nation?
The most comprehensive sexual harassment law in China is found at the provincial level – for now. Shanghai and Shenzhen, for example, have enacted sexual harassment legislation that is more comprehensive than anything found at the national level. Jiangsu province, located just north of Shanghai, has taken the lead by enacted the most comprehensive sexual harassment legislation in China so far.
Article 19 of the Jiangsu Special Regulations, effective in 2012, requires employers to:
- Establish rules against workplace sexual harassment.
- Provide training to employees for the purpose of preventing sexual harassment.
- Maintain a working environment that is free from sexual harassment.
- Set up a system to receive and deal with sexual harassment complaints while protecting the privacy of the parties involved.
- Institute other measures to prevent the sexual harassment of female employees.
In 2018, Jiangsu further strengthened its workplace sexal harassment protections with Article 43 of the Ordinance for Protection of Women’s Rights and Interests. This Article requires employers to create an investigation and complaint system to prevent sexual harassment. Its protections may even extend to customers and visitors. It is also likely to apply to employers based in other provinces to the extent that they have employees who work in Jiangsu.
When designing a sexual harassment training program, it would be wise to look ahead a few years and imagine what China’s sexual harassment law would look like if the Jiangsu legislation were adopted nationwide. It might also be wise to consider the ramifications if such legislation were further extended to include the sexual harassment of male employees by females or by other males.
Tips for Designing an Effective Sexual Harassment Training Program
The first principle to note when designing a sexual harassment training program is that it should be based on clear, well-defined rules. The company is perfectly justified in prohibiting behavior that would not be considered illegal under current national or provincial sexual harassment law. In other words, incorporate sexual harassment guidelines into your employee handbook before you commence training.
The following are some tips to remember when creating a sexual harassment training program:
- Formulate a clear definition of sexual harassment: As a starting point, the International Labour Organisation defines sexual harassment as “unwelcome and unwanted sexual conduct, that encompasses physical, verbal or non-verbal acts of a sexual nature which are offensive to the person being harassed.”
- Start at the top: Your subsidiary’s sexual harassment training program should kick off with a personal message from the CEO or perhaps even the CEO of the parent company. This approach will help drive home the point that sexual harassment training isn’t just another formality – the company takes it seriously.
- Break up your training program into smaller chunks: If you are going to require two hours of sexual harassment training per year, for example, it is better to schedule 30 minutes every three months rather than two hours once a year. This not only helps combat short attention spans, but it also makes it harder for employees to forget what they have learned.
- Adjust the training program to your company’s individual needs: The needs of an accounting office are likely to differ from the needs of a hotel, for example. Likewise, management might need different training for rank and file employees, and HR employees will need to know how to process sexual harassment complaints. Above all, employees must know how to actually use the system that you create.
- Make the program relevant to everyone: While many people might consider themselves potential victims of sexual harassment, very few people think of themselves as sexual harassers themselves. Consequently, your employees may “tune out” during training on the assumption that the content of the training “doesn’t apply to me.” Teach employees how to stop harassment that is being committed by others, for example.
- Make it very clear what disciplinary measures will be taken in the event of a violation of company sexual harassment policy: Nobody respects a toothless tiger.
- Give a test at the end of each session, and require employees who fail to take the training again until they pass: Although sexual harassment is not exactly nuclear physics, giving a test is a good way of guarding against daydreaming during the training session.
- At the end of the training, have every employee sign a written sexual harassment policy: The reason for this requirement should be obvious.
Keep Your Training Up-to-Date
In the United States, sexual harassment is a rapidly changing area of law, and the same pace of change could take hold in China as well. Indeed, legal changes are already starting to accelerate. Assign a member of your legal department to keep you up-to-date on changes on local and national sexual harassment law, or consult with outside counsel on the matter.
*Peter Pang is the Chairman and Managing Partner of IPO PANG XINGPU LAW FIRM, a premier international law firm founded in the early 1990’s and is headquartered in Shanghai, PRC. The firm’s primary practice focuses on assisting foreign companies in doing business in China and has legal expertise in Intellectual Property, Foreign Direct Investments, including equity joint ventures, employment and labor laws and mergers and acquisitions. Mr. Pang has studied both in the US and China, and is a frequently speaker and contributor to topics such as US China trade, franchising and protection of intellectual property and trade secrets. He is the author of a number of articles and chapters in books on the same topics, including transfer of technology.