China employees can terminate their employment contracts and secure severance against their employer if their employer has not provided the labor protections or abided by the work conditions set forth in the employment contract. Many employers do not realize this applies to sexual harassment as well.
China employers are obligated to prevent and stop sexual harassment against their female employees in the work place and a female employee has a legal claim against an employer that fails to take necessary actions after the employee complains of sexual harassment. What this all means in real life is that if you do not already have a China-specific sexual harassment policy in place for China, you need one. NOW.
Whatever you do, do not use your U.S. or your European sexual harassment policy in China. China’s laws on this are very different from the West’s and just translating what you have will in no way cut it. See China Employment Contracts: Why Ours Are In Chinese and Using English-Language Contracts in China. Not only must your sexual harassment policy by tailored specifically for China, it should also be tailored specifically for the locale or locales in which your China employees are based. See China Employment Law: Local and Not So Simple. A sexual harassment policy not tailored to the relevant locale within China can be deemed unenforceable. Even more common, our China employment lawyers often see foreign companies get sued for following an employment policy that does not jibe with local laws or customs.
As a China employer, you should be protective and encouraging toward a harassed employee. Consider the not uncommon situation where company policy mandates harassed employees must come forward to report any harassment and stops there. What happens if a harassed employee fails to report the harassment? Will the employee be disciplined in some way? If you do not intend to punish the employee, this sort of provision makes no sense and could very well prove harmful to you since it is not usually appropriate to penalize a harassed employee for failing to report harassment. Instead of saying “must” or “shall” you probably should say “is encouraged to.”
One-sentence in your rules and regulations stating that your company does not allow sexual harassment is not nearly enough. You need to be specific about the discipline you will impose. If all your employment documents state is that you may take appropriate disciplinary actions against an employee who engages in sexual harassment you might as well not even bother with having a policy. Your policy should set out specific measures you will impose and those specific measures need to fit the general approach of your rules and regulations and fit what is appropriate to the nature of the harassment and even the locale in which the harassment occurs. Your sexual harassment rules should not only be specific; they should be concise as well. A lengthy policy with too-complicated mechanisms or multiple-layers will not serve as good guidance to your management or to your employees and therefore is virtually never a good idea for China. You should also set out various reporting mechanisms and the measures you will take to assist sexual harassment victims.
Now can you see why a U.S. or Europe sexual harassment policy simply does not work for China?
By clearly setting out the specific discipline you will impose for sexual harassment you will establish a written basis for disciplinary actions or terminations you impose against an employee who commits sexual harassment. Since China is not an employment-at-will country you as employer generally need a specific contractual/legal basis to discipline or terminate an employee. See Six Common Myths About China Employment Laws. The legal basis for a China employer being able to discipline or terminate an employee who engages in sexual harassment would be serious breach of employee rules and regulations. This means that if you do not clearly enumerate your sexual harassment rules and policies in your written employment documents, you will lack a written basis for disciplining or terminating an employee who harasses and you will have a hard time justifying any punishment you impose on such an offender.
There have been a few cases in China where employers terminated an employee for sexual harassment and then succeeded in defending themselves in unlawful termination lawsuits despite any specific sexual harassment provisions in their employer rules and regulations. These employers succeeded by arguing that the employee has violated his general duty to follow mandatory laws prohibiting sexual harassment and/or by highlighting a catch-all provision in their employee rules and regulations that provided for termination for any serious offense. But these employers could have saved a lot of time and money had they merely implemented a specific sexual harassment policy. Also, in many pro-employee jurisdictions, if you do not have a set of enforceable employee rules and regulations, you have no recourse against an employee no matter how terrible the employee’s conduct. Seven Myths About China Employer Rules and Regulations (aka Employee Handbook).
Bottom line: Check your China sexual harassment rules and policies for legal compliance under Chinese law and for your locality. Now. See Why NOW is the Time to Comply with China’s Employment Laws, Part 2,
This article was written by Grace Yang and published on China Law Blog. Original Post: https://www.chinalawblog.com/2018/04/china-employer-sexual-harassment-policies.html