A Shanghai court last week awarded approximately $15,000 to a plaintiff in a sexual harassment suit against a colleague who had sent disturbing text messages to her almost daily for six months. It was a rare legal win in China, offering others who’ve been harassed some hope that China’s laws targeting sexual harassment are growing sharper teeth.
This outcome stands in stark contrast to other recent cases where the legal system has stymied survivors — or cases where those accused of harassment used the legal system to strike back. In December, a Beijing court adjourned after a closed 10-hour session of Zhou Xiaoxuan’s lawsuit against state television star Zhu Jun, and Chinese government censors reportedly scrubbed pro-Zhou messages from social media. And a prominent journalist named Deng Fei won a defamation case in December against He Qian, who had spoken out about being accosted by Deng as an intern.
Last week’s judgment may to turn out to be the exception that proves the rule, if the Chinese government does not address the legal frameworks that seriously disadvantage survivors.
The government has moved slowly
China enacted its first provision in a national law prohibiting sexual harassment in 2005, and provinces and localities followed up on it with a flurry of regulations. The State Council, the Chinese government’s top executive body, took a further step by stipulating in 2012 that employers should curb workplace sexual harassment.
Despite the string of policymaking, hardly any lawsuits made it to court. A study by the Beijing Yuanzhong Gender Development Center, a women’s rights organization, found only two court judgments involving survivors suing harassers from 2010 to 2017. Both lost.
Plenty of barriers remained in the way. Legal provisions lacked a definition of sexual harassment, guidance on how to handle cases and clear remedies. A plaintiff arriving at court would not be able to find the term “sexual harassment” anywhere in the long list of causes of action to label their case when filing it. Instead, they would have to shoehorn it into another category. Add in the intense social and political pressures that survivors face in speaking up, and it is not surprising cases remained so few.
Then China joined the global #MeToo surge
State authorities — often hostile to grass roots movements — responded to the 2018 focus on sexual harassment with censorship and repression. But the Chinese government also did not want to appear inert and inept in the face of a serious problem that was garnering increasing public attention. Another round of policies ensued. The Ministry of Education called for universities to establish mechanisms focused on addressing sexual harassment, and the Supreme People’s Court created a new cause of action specifically for sexual harassment suits.
China’s first-ever Civil Code, a major national law that went into effect in January, contains provisions that lay out a definition of sexual harassment and reiterate that those who harass can be sued. The Code also obliges companies, schools and government entities to adopt institutional policies for preventing and responding to sexual harassment in workplaces and campuses.
Chinese legal experts see these reforms as progress, but devils in the details continue to snare #MeToo in China (and elsewhere). These three factors, in particular, diminish the law’s capacity in China to fight sexual harassment:
1. Courts want smoking gun evidence
In this month’s Shanghai verdict, the defendant’s harassing behavior was repeated and recorded. Survivors with this kind of hard evidence can more easily make their case, but those that do not have a steeper hill to climb. Chinese courts generally disfavor litigant testimony and require plaintiffs to prove the facts of their case to a “high degree of likelihood.” This means a sexual harassment case that boils down to two conflicting testimonies will almost certainly result in a loss for the plaintiff.
2. Damage awards are low
The $15,000 damage award in the case, calculated to cover the plaintiff’s legal fees, lost wages, medical bills and mental distress, among other costs, was unprecedented in its size. The extreme nature of the harassment caused the plaintiff to miss work and seek health care services. When calculating compensation, Chinese courts want to see receipts. Plaintiffs who do not incur concrete costs get little or no compensation, even if they suffered mental distress. Last July, in the first case to use the new cause of action for sexual harassment cases, the court only ordered the defendant, Liu Meng, a well-known figure in the nonprofit world, to give the plaintiff an apology for harassing her when she worked for his organization. He never did.
3. Harassers can easily counterattack with their own lawsuits
Lawsuits by alleged harassers far outnumber suits brought by survivors. A person against whom public allegations are made can bring a defamation suit against the accuser. Courts, without a concrete legal basis, often reverse the burden of proof in defamation cases, giving a substantial advantage to the plaintiff.
An employee who is fired for sexual harassment can bring a complaint against his company for illegal termination. An employee-friendly legal rule puts the burden of proof on the employer in unlawful termination cases, again benefiting the claimant.
This may be why the company in the Shanghai case did not fire the harasser, despite documentation of his sustained and disturbing harassing behavior toward his colleague. To date, no employer has been held liable in China for not appropriately responding to sexual harassment in their workplace — but many companies have had to pay compensation for illegal termination because a court found insufficient evidence of harassment. Companies have more reason to fear disciplining the employee too harshly than too gently.
The #MeToo movement, including the brave women who have gone to court, and the debut of the Civil Code have reinvigorated discussions about sexual harassment in China. But whether the law can serve as an effective tool in curbing sexual harassment will depend on whether authorities will level a field that remains slanted against survivors. Otherwise, repeated rounds of policymaking may just continue to give off smoke with little fire.
Darius Longarino (@DariusLongarino) is a research scholar in law at Yale Law School and a senior fellow of the Paul Tsai China Center.