These developments highlight the challenges the #MeToo movement faces in China’s legal system, where survivors are more likely to be successfully sued for defamation than prevail as plaintiffs. They also show how many employers don’t provide protections and recourse regarding workplace sexual harassment, despite being legally required to do so.
When the Alibaba employee initially reported the alleged assault to her managers at headquarters, one reportedly said that women were not suited to the job. Later, they decided not to fire the manager she had accused of sexual assault, out of concern for her reputation.
In early August, the Alibaba employee voiced her anger publicly in the office canteen and posted her account of events on Alibaba’s intranet. Colleagues — and the public — were enraged. Alibaba fired the manager and police detained him for 15 days for the noncriminal offense of “forcible indecency.”
Alibaba’s CEO, Daniel Zhang, announced the company would “expedite the formation of an anti-sexual harassment policy” and “establish a dedicated reporting channel” with follow-up from “a dedicated professional.” Companies like iQiyi, Sina Weibo and Trip.com announced plans to develop similar policies, and consultants received a deluge of calls from companies asking for training and advice.
Article 1010 of China’s Civil Code, effective as of January, states that enterprises, government organs and schools “shall take reasonable precautions, accept and hear complaints, investigate and handle cases, and take other like measures to prevent and stop sexual harassment.” But the threat of scandal, rather than the Civil Code, seems to be prompting Chinese companies to get anti-sexual misconduct policies on the books. These three factors help explain why the law falls short:
1. Article 1010’s requirements are ambiguous
In December 2019, one of the code’s drafters, professor Wang Liming, told the media arm of the National People’s Congress that Article 1010’s goal is to “require” employers to “establish systems, regulations, and mechanisms for preventing sexual harassment.” After the Alibaba incident, the newspaper of the All-China Federation of Trade Unions echoed this position with the headline, “Enterprises Must Establish a Preventative System for Workplace Sexual Harassment.”
But the legal language only calls for “measures,” a term that covers a broad range of actions from the formal and systematic to the informal and ad hoc. Two NPC officials were unsuccessful in proposing that Article 1010 include the words “systems” or “mechanisms” to clarify that companies were required to take a more institutionalized approach.
The “Interpretations of the Civil Code of the People’s Republic of China,” written by the director of the Civil Law Department of the NPC Legislative Affairs Commission, hints that the drafters struck a balance. The volume states that Article 1010’s duty to take “measures” is “beneficial to establishing diverse mechanisms for resolving sexual harassment disputes.” The implication is that the government hoped Article 1010 would encourage companies to establish anti-sexual harassment mechanisms, but that it is not required.
2. It’s not clear what happens if companies don’t comply
A 2012 State Council regulation provides that employers “should prevent and curb sexual harassment,” but Chinese courts have balked at the idea of employer liability for sexual harassment. In 2020, a Beijing court dismissed claims against e-commerce company Jingdong, ruling that an employer is not a proper defendant in a sexual harassment lawsuit.
The Civil Code now opens the door to lawsuits against employers, but only slightly. During the drafting process, NPC delegate Yu Mei argued that it would be “unfair” to put employers on the hook for harm caused by harassers. Instead, she proposed that employers should only be responsible for “serious consequences” resulting from their own “ineffective handling” of an incident.
The final text of Article 1010 ended up with little specific guidance on the matter, but narrow legal interpretations could make it difficult to hold a company accountable for an employee’s misconduct. For example, professor Wang Liming at a State Council press briefing explained that a survivor hoping to claim damages would need to prove a causal relationship between the harm suffered and the employer’s failure to take prevention measures. As one women’s rights lawyer recently told Caijing Magazine, the law “left a backdoor open to exempting employers from legal liability.”
3. Firing employees can be risky
Employers that fire harassers open themselves up to being sued for illegal termination. In such lawsuits, employers carry a heavy burden to prove the alleged behavior occurred, and must convince judges that it warranted dismissal. In a 2018 case, an employer provided text messages a manager sent to his female supervisee asking her to sleep with clients. The court found that the “language was certainly inappropriate, but did not reach the level of sexual harassment,” and ordered the company to pay the manager $57,000 as compensation for unlawfully terminating his labor contract.
Article 1010’s provisions on employer duty appear more aspirational than enforceable. Besides civil litigation, top-down enforcement and public pressure from #MeToo supporters may be other drivers of change in how companies address sexual harassment, but the attention generated by scandal tends to come and go.
Judges and legislators could still choose to strengthen Article 1010 by specifying that employers have joint liability with harassers, or that employers need to adopt and implement formal policies — though they may be reluctant to do so since Article 1010 also covers government organs.
Notably, official messaging has been inconsistent. The Municipal Development and Reform Commission of Hangzhou, where Alibaba is based, posted on its website that a survivor could sue their employer merely for having failed to take preventive measures. If these kinds of messages lead more survivors to try holding their employers accountable, they could increase pressure on courts and policymakers to give Article 1010 more teeth.
Darius Longarino (@DariusLongarino) 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 degree graduate of Cambridge University.