China has begun work on the first draft of its Civil Code, a legislative measure aimed at reconciling and organizing the country’s extensive civil laws. The Chinese Civil Code (“Code”) is expected to be fully drafted and adopted in 2020.
Although the Code has been under development for some time, it now finds itself in the #MeToo era. China has felt the shockwaves of the movement as prominent intellectuals, activists, and officials have now been accused of sexual assault or harassment. The drafters of the Code have taken note of this increased momentum the movement has experienced. The most recent draft of the Code published on September 5, 2018, would impose increased obligations on Chinese employers and provide more protections to employees against sexual harassment.
As published, the Code would require employers to take reasonable measures for preventing sexual harassment. This includes implementing a process for reporting and investigating sexual harassment claims. In addition, it would permit victims to hold perpetrators liable for sexual harassment. Victims also could extend civil liability to employers who fail to properly investigate sexual harassment claims.
China has enacted several national laws prohibiting sexual harassment in the workplace in recent years, however, those laws have had poor enforcement. In addition, already-existing laws do not clearly define what conduct constitutes sexual harassment and these laws generally only protect women. As a result of these vague laws, between 2010 and 2017, only thirty-four lawsuits were filed that addressed sexual harassment. Most of those cases were initiated by alleged harassers and brought against either their former employers or their accusers.
The newest draft of the Code seems to signal a stark departure from China’s course on sexual harassment in the workplace over the past several years. Accordingly, employers in China should review their policies for handling and investigating sexual harassment claims in the workplace and pay close attention to any further Code developments.
We will continue to monitor the Code as it is prepared for final review in 2020. We will be sure to blog about any updates.