用人单位应对职场性骚扰问题探究——以劳动争议案件审理为视角

Study on Employers’ Response to Sexual Harassment in the Workplace——From the Perspective of Litigation Cases Connected with Labor Disputes

通过对涉职场性骚扰行为法律规制现状的梳理、相关司法判例对职场性骚扰的定性要素的归纳,总结了199份判决书中因职场性骚扰引发的劳动争议案件的特点和难点。尽管半数以上的用人单位修改员工手册,将性骚扰作为单位有权解除劳动关系的条件之一,但其辞退性骚扰员工的胜诉率仅占约30%。其原因集中于证据不足,员工手册中的严重违纪情形不具体等。鉴于职场性骚扰涉及隐私并具有突发性、偶发性、隐蔽性,法官对当事人的举证要求不宜严苛。建议立法明确职场性骚扰定义,使司法认定有法可依,明确用人单位防治职场性骚扰的具体义务及其违反此项义务的法律责任。用人单位应当认知预防职场性骚扰的重要性及必要性,完善人事管理制度,高度重视相关证据的收集和固定工作,依法完成辞退涉职场性骚扰员工的流程,谨慎公正地处理相关投诉和举报。

The paper sums up the features and difficulties in the trial of 199 labor disputes in relation to sexual harassment in the workplace on the basis of reviewing relevant legal regulations and judicial interpretations. Although over half of employers have already listed the infliction of sexual harassment as one of major circumstances in their staff manuals under which involved employees will be legally dismissed,yet the success rate of such lawsuits is only about 30 percent. The difficulties to collect sound evidence and unspecified description of serious delinquent actions in employees’ handbook have together become primary obstacles for the dismissal of law-breakers concerned. The court should not extremely demand plaintiffs to provide all-round evidence in the confirmation of their claims since sexual harassment in the workplace has been known for its sensitivity,suddenness and crypticity. It is thus proposed that the legislative departments should make a clear definition of workplace-related sexual harassment so as to offer judges judicial clauses in the hearing of such litigations and specify the duties of employers in the prevention and crackdown of relevant crimes as well their accountabilities in the violation of involved legal rules. Therefore,employer shall fully recognize the importance and necessity of preventing sexual harassment in the workplace,improve personnel management regulations,give priority to the collection of supportive evidence in a regular procedure,dismiss involved employees in accordance with laws,and deal with relevant complaints and reports cautiously and impartially.