On Employer’s Liability of \"Sexual Harassment in the Workplace\" from the Perspective of Civil Code

Abstract： Sexual harassment is an act of gender-based violence and discrimination. In international human rights law， sexual harassment is defined as gender discrimination and gender-based violence. The prohibition of sexual harassment in the workplace is a requirement to guarantee human dignity and a safe working environment. Article 1010 of the Civil Code establishes the employer’s obligation to stop and prevent sexual harassment， but does not specify the employer’s liability in case of failure to fulfill the obligation.

At present， the regulation of employers’ liability for sexual harassment in the workplace has developed into two protection models： workplace protection and private rights protection. The private right protection， based on personality rights protection and tortious liability， is more realistic and feasible in China in the post Civil Code era. Given the fact that the employer is both operator and administrator in the workplace， the employer should bear the obligation to prevent against sexual harassment， which needs to be realized though the measures to protect employees from the organizational risk of sexual harassment in the workplace. The tortious liability for the violation of the obligation is the employer’s own liability and fault liability， rather than vicarious liability.

As for the form of liability， if the employer fails to take reasonable and effective preventive measures， or knows or should know that sexual harassment is occurring in the workplace， and fails to take effective measures to stop the sexual harassment and provide relief to the victim in a timely manner， which results in the occurrence of damage， the employer shall be held jointly and severally liable with the perpetrator of the sexual harassment for accessory liability for assisting torts under Article 1169 of the Civil Code. If the victim can prove the employer fails in its duty to prevent， but cannot prove the employer is jointly and severally liable， the victim may request the employer to assume supplemental liability pursuant to Article 1198， Paragraph 2 of the Civil Code. Sexual harassment in the workplace can be deemed as an inherent risk that accompanies the organizational activities of the employer. Therefore， the obligation to prevent sexual harassment in the workplace is a cost of risk prevention that the employer must pay while reaping the benefits of the organizational activities.

\"The perpetrator shall be liable for damage caused to others in the course of pursuing economic benefits. As the benefit obtained by unjust enrichment， the beneficiary shall return the proceeds obtained to the party who suffered the loss.\" Whoever causes the risk will bear the obligation and liable for the injury thereof. Under the current legal system， defining the tortious liability of employers for sexual harassment in the workplace can help improve the regulatory mechanism of sexual harassment in the workplace. Even if sexual harassment in the workplace can be interpreted as a kind of organizational risk according to tort law theory， sexual harassment is still a structural social problem in essence， which is closely related to gender equality and the realization and protection of labor rights.

In comparative law， many states and regions have established a comprehensive regulatory model for sexual harassment in the workplace， including tort law， labor law， anti-discrimination law and so on. The newly revised Law of the People’s Republic of China on the Protection of Rights and Interests of Women， stipulates more detailed provisions on the prevention and regulation of sexual harassment， which also reflects China’s determination to tackle with the problem of sexual harassment in the workplace from multiple levels and dimensions. In this sense， clarifying the employer’s tortious liability as prescribed in Article 1010， Paragraph 2 of the Civil Code is only the first step we take. On the basis of the current law， we are also in a position to establish a diversified， complete and effective system of preventing and regulating sexual harassment in the workplace， which is exactly where we should go in the future.

KEY WORDS： Civil Code； workplace sexual harassment； employer’s liability； tortious liability