On January 1, 2021, Article 1010 of China’s new Civil Code took effect. It says that any victim of sexual harassment has the right to sue the perpetrator for civil liability, and that a variety of entities, including companies, shall take “reasonable” measures to prevent and stop sexual harassment. Advocates hoped that Article 1010 would spur significant progress in addressing sexual harassment in Chinese society and workplaces. Nearly four years later, what has changed?

Shortly after Article 1010 came into force, but before its effect could be determined, Aaron Halegua authored a report that was co-published by the U.S.-Asia Law Institute (the “USALI report”) on the state of sexual harassment law in China and the ability of victims to vindicate their rights through the Chinese courts. The USALI report found that victims faced significant obstacles, including an unclear definition of sexual harassment, a high evidentiary threshold, and small damage awards. Moreover, no employer had ever been held responsible for the harassment that took place at their worksite.

Unfortunately, Article 1010 has by no means revolutionized sexual harassment victims’ ability to obtain relief through the courts, nor has it brought employers to account. However, there have been a few positive (albeit modest) developments.

One advance is that Chinese courts have selected several workplace sexual harassment cases as “exemplary cases” (典型案例). Exemplary cases are not binding but offer persuasive guidance to courts. Their publication aims to raise awareness of the legal issues among judges and the public. When higher courts identify exemplary cases, they do not republish the whole opinion but only summarize the facts and conclusion and add their own commentary.

In March 2023, the Supreme People’s Court (SPC) selected a case decided in Shanghai’s Yangpu District to be its first exemplary case on workplace sexual harassment. It was originally decided in 2020, prior to Article 1010 taking effect, and therefore cites only to the anti-harassment provision in the Law on the Protection of Women’s Rights and Interests from 2018. Nonetheless, the decision finds the plaintiff was sexually harassed by her colleague, who made numerous unwelcome advances via phone calls and text messages. After the victim reported the harassment to the employer, the employer made the defendant promise to stop. When the harasser made unwelcome advances again, the victim reported him to the police, who detained the harasser for seven days and fined him RMB 200 (about $28). The victim was then diagnosed with depression and other psychological impairments. She sought RMB 228,300 (about US $31,330) in compensation, including RMB 50,000 in emotional distress damages. The trial court ordered the harasser to pay the victim RMB 91,804 (US $12,600)—including medical costs, RMB 30,000 ($4,120) in emotional distress damages, and other unspecified damages.

Publicizing these exemplary cases sends a message that courts should take seriously such claims and requests for compensation.

Provincial-level courts have publicized four exemplary cases on sexual harassment. In two cases, the courts upheld employers’ termination of employees who sexually harassed co-workers. These are actually the most common type of sexual harassment claims brought in the Chinese courts. The other two cases involve sexual harassment victims suing for compensation. In one case, a Chongqing court found that the victim suffered from post-traumatic stress disorder after the harasser forcibly kissed her at work, and awarded her RMB 19,759 ($2,710) for medical expenses, emotional distress, and attorneys’ fees. In a Shanghai case, a secretary who provided audio and video evidence of her boss’ unwelcome advances requested RMB 1 in emotional distress damages, attorney’s fees, and an apology—all of which the court granted.

In light of the difficulty that sexual harassment victims have historically faced in establishing liability and obtaining damages, publicizing these exemplary cases sends a message that courts should take seriously such claims and requests for compensation. That being said, the damages are not particularly high and none hold the employers liable.

Litigation Trends

It is difficult to accurately assess how the volume of sexual harassment claims filed in Chinese courts has changed since Article 1010 took effect in 2021. The USALI report relied primarily on searching the SPC’s public database of judicial decisions to see what cases had been filed. However, while the SPC is expanding its database of guiding cases and exemplary decisions, it has simultaneously scaled back the database that contains complete judicial decisions. The SPC, citing security risks, has removed millions of cases from this general database and far fewer new decisions are being added. Therefore, the decisions in the database are likely to be incomplete and may be skewed.

The majority of workplace sexual harassment cases are still filed by employees terminated after allegedly engaging in sexual harassment, rather than by victims.

Nonetheless, a review of those decisions that are available suggests a few trends. For instance, the majority of workplace sexual harassment cases are still filed by employees terminated after allegedly engaging in sexual harassment, rather than by victims. Yet, in those instances where a victim sues their harasser—the authors have identified at least 13 such cases, six of which involve sexual harassment at the workplace—there was either a settlement or the court found harassment occurred and awarded compensation. Further, the decisions awarding compensation cited to Article 1010. They recognized as sexual harassment such acts as forcible kissing and touching as well as sending sexually explicit messages or images.

Damage awards still generally remain low. The USALI report showed that most courts seemed to cap awards at RMB 5,000 (about $690). Despite the SPC highlighting a judgment that awarded RMB 90,000 in damages, trial courts are not getting the message. The authors have identified only one case that broke the RMB 5,000 ceiling: a 2021 decision in which a victim in Anhui Province was awarded over RMB 10,000 for lost wages, various medical and nursing costs, and emotional distress.

Moreover, while the victims prevailed and were awarded compensation in the judicial decisions that the authors found, the victims in many high-profile cases have not fared well. For instance, Xianzi, an intern who accused a famous television anchor of harassment, lost her sexual harassment suit when the court deemed her evidence insufficient. After a female Alibaba employee complained that her work superior and a client sexually assaulted her on a business trip, and the client was even criminally prosecuted, Alibaba fired the victim for “spreading false rumors” that supposedly damaged Alibaba’s image. In 2021, when tennis player Peng Shuai accused a top Chinese official of sexually assaulting her, her post was quickly deleted and she disappeared from public view for weeks. Most recently, a female technician at a BYD subsidiary who complained about sexual harassment by a coworker was then reprimanded for humiliating that coworker, demoted to janitorial duties, and subsequently terminated. These high-profile cases, coupled with the fact that those who complain are often sued by their harassers for defamation, may explain why few victims come forward.

Employer Liability

The USALI report noted the importance of holding employers—not just individual harassers—liable for workplace sexual harassment. Recent events and cases reported in the Chinese media have underscored the need for institutional accountability. An academic study published in October 2023 showed the prevalence of overt workplace sexual harassment in the form of pressuring female employees to drink while entertaining clients, making them participate in offensive games during team-building exercises, and making unwelcome sexual advances on company WeChat platforms, even including quid pro quo solicitations by supervisors.

Recent legislative and policy activity suggests an unwillingness to create real legal liability for employers.

Article 1010 commanded enterprises to “take reasonable precautions … [and] measures to prevent and stop sexual harassment” in the workplace, raising hopes that employers might be held responsible when they fail to fulfill this duty. This has not been the case. The authors have not identified any decisions in which an employer has been held liable for sexual harassment at the workplace, and very few victims even assert such a claim. There are only two known cases that explicitly address this issue, and both predate Article 1010. In the first, a Beijing court refused to hold the employer liable; in the second, a court in Chengdu simply ordered the defendant to apologize to the victim.

Recent legislative and policy activity further suggests an unwillingness to create real legal liability for employers. The recent updates to the Law on the Protection of Women’s Rights and Interests only reiterate employers’ duty to prevent sexual harassment and propose some measures they should take towards this end. Government ministries have focused on encouraging employers to adopt written anti-sexual harassment policies, but do not establish penalties for failing to do so.

Since the enactment of Article 1010, the selection of exemplary cases by the SPC and provincial-level high courts may signal a desire at top levels to see more sexual harassment victims win in court and be awarded damages. However, the number of cases filed by sexual harassment victims appears to remain low and compensation to victims remains small. Moreover, there is no indication that employers will be held accountable, which would be a crucial part of any serious effort to combat the problem.

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Aaron Halegua is the founding member of the law firm Aaron Halegua, PLLC in New York City and a non-resident affiliated scholar at the U.S.-Asia Law Institute.

Yifu Dong is a graduate of the Boston University School of Law and a former intern at Aaron Halegua, PLLC.

Suggested Citation:
Aaron Halegua and Yifu Dong, “China’s Ban on Sexual Harassment: A Four-year Report Card,” USALI Perspectives, 5, No. 3, Dec. 18, 2024, https://usali.org/usali-perspectives-blog/chinas-ban-on-sexual-harassment-a-four-year-report-card.

The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.