Workplace Sexual Harassment in China: A Comparative Inquiry into the Personality-Based Paradigm

Abstract

Western researchers have produced significant insight into sexual harassment in Western contexts, but sexual harassment in Chinese society remains largely unexplored. To address this comparative inquiry, this article explores the development of an understanding of workplace sexual harassment and the legal regulation thereof in China—a State with a socialist legal system that has characteristics specific to its context. Through a thorough review of the historical foundations, legislative change over time, and judicial practice, I explore two questions: (i) how do Chinese laws define sexual harassment and (ii) how do Chinese lawmakers perceive the wrong done by sexual harassment? This article reveals that, over two decades of legislation, a sexual harassment legal system has gradually taken shape in China. This system is based on a paradigm distinct from the two major paradigms in the Western world: the American-style discrimination approach and the Continental employee dignity approach. Notwithstanding some attempts to use the American approach, the Chinese legal authorities are developing an alternative personality paradigm where sexual harassment is framed as a tortious infringement on an individual’s right to personality. I argue that the personality paradigm, though strategic and advantageous in terms of expanding the scope of protection to victims, is inadequate in addressing workplace sexual harassment as well as protecting women as the most vulnerable class of victims, which calls for further legal reform to rectify the deviation. In light of this, I offer concrete proposals for China’s sexual harassment legal reform in the future.