用人单位辞退性骚扰者被索赔的困境与出路

The Predicament Faced with Employers in Firing Job-Related Sexual Harassment Delinquents and Solutions to Cope with Their Reimbursement Demand

用人单位具有"预防和制止对女职工性骚扰"的法定义务,用人单位落实这项法定义务,就有权给骚扰者纪律处分甚至解除劳动合同。一旦此类解除劳动合同处分面临仲裁和司法机关合法性的严苛审查,那么用人单位解除劳动合同决定通常有败诉风险,则用人单位基于规避风险等考虑,将不敢处理受害女职工的投诉,导致此项法定义务将会落空。因此,从立法上厘清何为"性骚扰",以便司法机关有统一的认定标准,是降低用人单位败诉风险的前提;用人单位对骚扰者做出的解除劳动合同处分能够得到仲裁和司法机关的支持,是保障用人单位有决心、有信心将此项法定义务落到实处的出路。本文提出3点特殊的举证规则建议:第一,在举证责任的分配上实行"举证责任转移"规则;第二,应当按照"高度盖然性"的原则来确定案件证明标准;第三,性骚扰案件更需要法院依职权调查取证。

As it is a legal obligation for employers to prevent and stop sexual harassment against their female employees,they thus have the authority to discipline harassers and even terminate labor contracts with them.However,the discontinuity of such labor contracts often places relevant firms into jeopardized conditions such as arbitration,the review of legal validity,and the failure in lawsuits. Employers will take into account these risks and even dare not to receive and handle with complaints made by their female staff against alleged sexual harassment.Therefore,the legislative departments should make a clear definition of sexual harassment and provide judicial agencies with standard references in the trial of such cases in a drive to help firms concerned win their cases.Meanwhile,arbitral organizations and judicial departments should grant full support to involved enterprises and other employers in the termination of their labor contracts with sexual harassment delinquents,guaranteeing their determination and confidence in the implementation of legal obligations concerned. At last,the dissertation comes up with a three-point proposal concerning the presentation of proofs. clarifying what is"sexual harassment"from the legislation for a uniform standard of the judiciary is the premise to reduce the employing unit’s risk of losing a lawsuit;If the disposition of dissolving the labor?contract with the harasser can be supported by the arbitration and the judiciary,it will ensure that employing units have resolution and confidence to implement the legal obligation.Therefore,I propose 3 special rules of evidence in my article.