By Darius Longarino, Yixin Ren, and Angela Zhang
China’s Civil Code required firms to set up sexual harassment prevention and response policies. But on the ground, the impacts remain limited.
“Are You New on the Job and Have Been Sexually Harassed? The Civil Code’s Got Your Back!” exclaimed a January article by the Beijing Haidian District Court. The court, along with Chinese state media, was joining a wave of online discussion following the depiction of workplace sexual harassment in the hit show “My Best Friend’s Story” (Liu Jin Sui Yue). China’s first-ever Civil Code, which had just gone into effect, the court said, not only provides for civil lawsuits against harassers, but also obliges companies to adopt policies for preventing and responding to sexual harassment in the workplace.
Since 2005, a series of laws and regulations in China have called on employers to address sexual harassment, but few companies have put anti-sexual harassment policies on the books. The Civil Code is the first national law to clearly state that employers have a duty to adopt concrete policies, giving it a stronger combination of authority and specificity than its predecessors. Will it deliver the protections promised?
A previous article in The Diplomat looked at the ongoing legal debate in China about when employees can sue their companies for failing to adopt anti-sexual harassment policies. This time, we asked employees, lawyers, and gender justice advocates whether the Civil Code’s debut has sparked changes on the ground.
Overall, our interviewees said they have not yet observed much, if any, change. “I did not connect the new Civil Code to sexual harassment until now,” said one employee at a large Shenzhen-based technology company. “I have no clue who I would turn to if an issue arose.”
“I hadn’t even heard about it,” responded a manager in Shanghai. Other interviewees echoed a similar sentiment — the Civil Code has not yet catalyzed changes in company policies.
Although the Civil Code has only been in effect for a short time, lawmakers passed it in May 2020 and the anticipated provisions on sexual harassment were announced more than two years ago. Companies have had notice to get the ball rolling on compliance but have mostly neglected to do so.
Shen Haiyan, a consultant with the Shanghai-based law firm Laboroot, is not surprised by the inaction. “Although the Civil Code provides that companies ‘have a duty,’ [to adopt anti-sexual harassment policies]” she explained, “the forcefulness of ‘have a duty’ and ‘if I don’t do this, then there will be some kind of punishment’ is not the same.”
Professor Shen Yifei, a scholar in Fudan University’s prestigious School of Social Development and Public Policy, agreed: “If a regulation has neither mechanisms for punishment nor incentives, how can it be implemented?” Shen suspects the Civil Code’s lack of clarity on employer liability is the result of “balancing the interests of different groups.” The implication is that lawmakers thought it would be too heavy a burden on businesses to expose them to civil litigation for failing to adopt anti-sexual harassment policies – though other explanations, like drafter oversight, are also plausible.
Some legal scholars have argued that it is more appropriate for enforcement to be left to state agencies rather than employee lawsuits. However, administrative enforcement has a poor track record in protecting labor and employment rights. In “Authoritarian Legality in China,” Professor Mary Gallagher observed that “labor inspectorates are woefully understaffed and lack capacity,” can only give companies “slaps on the wrist,” and are “incentivized to look the other way as much as possible.”
Civil litigation has its limitations as well. Successful cases against harassers or employers who discriminate against women are rare and damage awards are low. But opening the courthouse door creates opportunities for individual agency — not only to protect one’s own rights, but also to start public discussions that educate and inspire others. It also shows companies that they can be named and shamed. More broadly, bottom-up pressure, inside and outside the courtroom, can disrupt the status quo. For example, China’s #MeToo movement — even though a target of state censorship and repression — spurred a string of policy responses to sexual harassment.
The lack of incentives for employers to adopt policies is problematic because sexual harassment is not just an individual problem but an institutional one. “Some companies have cultivated bad workplace cultures that let sexual harassment happen,” said a workplace consultant who has facilitated anti-sexual harassment trainings. “Some human resources managers have even encouraged sexual relations between the boss and employees,” she added. One woman told Xinhua’s Ban Yue Tan in an article about the Civil Code that her manager would often bring her to business dinners to sit next to male clients. “Some clients, once they start drinking, they start telling dirty jokes. After that, they start making sexual advances. The manager knows exactly what’s going on, but never says anything.”
Willful disregard contributes to creating workplaces conducive to harassment. “[Management] doesn’t think sexual harassment is too big a deal,” said the employee at the Shenzhen tech company. “It’s annoying for them.” According to the employee, shortly after the Civil Code’s passage, attendees at an orientation for new hires asked a manager about the company’s anti-sexual harassment policies. The manager gave an evasive answer and then remarked “one hand alone cannot clap” — meaning both parties in a sexual harassment incident are to blame. The response angered many. “The younger employees have stronger opinions about this issue,” the employee said.
Even for companies considering a more proactive approach to combatting workplace sexual harassment, constraints on time, money, and know-how remain obstacles. One human resources manager at a leading global consulting firm shared, “It is really difficult for the company to judge cases like a court,” referring to the challenge of conducting internal investigations into harassment and making determinations about wrongdoing. “This responsibility is too big,” the manager said.
Some gender justice advocates have found allies in companies by responding to these concerns. They have offered trainings on implementing anti-sexual harassment policies and, in the case of the social enterprise EnGender, have conducted internal investigations as third parties. The Civil Code’s deficiencies notwithstanding, its inclusion of anti-sexual harassment provisions has given these advocates’ work a legitimacy boost. Making the business case for rooting out harassment, including avoiding reputational harm and creating an environment where employees can thrive, has helped as well. One interviewee at a Beijing-based tech company speculated their company’s initiative to draft an anti-harassment policy was motivated by the notion that it would facilitate the company’s global expansion.
But even if advocates get a foot in the door, it is hard to convince organizational leadership to make systemic changes that go far beyond sponsoring a training or two. “In an environment where there are limited resources,” said Liao Jingyi, co-director of EnGender, “decision-makers tend to have a mindset that leads to mending the pen only after the sheep escape.” In other words, leaders become focused only once a reputation-damaging incident occurs.
Ultimately, this cost-benefit analysis will have to change for real progress to occur. For Feng Yuan, a veteran feminist activist and co-founder of the women’s rights organization Equality, “the Civil Code won’t automatically change companies’ practices, policies, and culture.” But she is looking ahead. “Advocates will need to push. Survivors will need to call for employer liability, and, importantly, courts will need to incentivize companies in their judgments.”
It is unclear whether courts will be willing to open up companies to more liability, but expectations that the Civil Code will have power to bring real change are poised to grow — especially when the state’s own messaging raises such expectations. Enough of a bottom-up push could lead to a recalibration of the law, though, as always, an even more repressive backlash remains in the cards.
If there is indeed a recalibration, how it is done will be pivotal. In the United States, the #MeToo movement exposed how corporate policies were better at protecting employers from liability than stopping sexual harassment. It is a cautionary lesson Chinese feminists are mindful of.
Despite the slog ahead, Ren Naying, a program manager at the Beijing LGBT Center who has conducted trainings on gender diversity and sexual harassment for companies, maintains the uncanny resilience of China’s activists. She is confident the accumulation of small steps will lead to broader change in the long term. Indeed, ground has already been gained. “Through the Civil Code’s response to calls for gender equality globally, you can see our society’s continual progress,” she said.
Darius Longarino is a research scholar in law at Yale Law School and a senior fellow of the Paul Tsai China Center.
Yixin (Claire) Ren is a Research Associate with the Paul Tsai China Center of Yale Law School and a Master’s graduate of Cambridge University.
Angela (Lulu) Zhang is a student at Yale Law School and a Master’s graduate of Peking University.