Unwarranted disparagement, exclusion and isolation, cross-border harassment... encountering invisible harm can easily lead to disputes
[In the digital age, there should be hard restrictions on “soft infringement” in the workplace (Part 2)] Solving the problem of rights protection against “soft violence in the workplace”
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Because the infringement methods, occurrence scenarios, and consequences of injuries are different from traditional workplace infringements, workers often face difficulties in identification and proof when encountering "soft violence." Experts suggest that the identification and relief system for mental injuries in the workplace need to be further improved and the relevant burden of proof needs to be reasonably allocated.
On October 14, in Shenzhen, Guangdong, Pan Hongying received the court’s first-instance judgment—she won the case.
According to the judgment, a senior executive of Pan Hongying's former company must apologize to her in writing and at the same time compensate her for mental damages, compensation for lost work, and medical expenses totaling 11,200 yuan. At present, the judgment has been fulfilled.
From encountering cross-border harassment in the workplace to successfully defending her rights, Pan Hongying "walked away" for more than eight months.
In early February this year, knowing that both parties were married and had children, the executive proposed to Pan Hongying that he wanted her to become his "girlfriend somewhere", but was clearly rejected. Unexpectedly, until late February, the other party still sent her text messages with obviously sexual connotations many times. Pan Hongying made it clear to her time and time again, "I hope our communication will be limited to work."
On October 30, a "Worker Daily" reporter saw from the judgment provided by Pan Hongying that the case was heard in September this year. One of the basis for the court's judgment was Article 1010 of the Civil Code of the People's Republic of China. The executive's behavior was deemed "sexual harassment." During the trial, the online chat records of both parties became key evidence.
However, not all workplace injuries can be left behind in this way.
Reporters have noticed that in the workplace, some "soft violence" by means of belittling, isolating, and making things difficult happens from time to time. It may be groundless accusations and abuses from bosses, exclusion and isolation by individual colleagues, or public humiliation due to minor mistakes, or malicious harassment that crosses the boundaries of normal colleagues. Due to the hidden form and blurred boundaries of this kind of "soft violence", it is difficult for some workers to effectively obtain evidence, and they even fall into anxiety and depression due to self-doubt.
"Soft violence" occurs from time to time in the workplace
Liu Huiling, who works as a copywriter at an advertising company in Beijing, revealed to reporters that as a newcomer in the workplace during her probationary period, she would sometimes confirm the specific division of tasks or ask for details from her supervisor in the work group, but she would often get "gun-and-gun" responses, such as, "Are you blind?"
"Sometimes, my boss stands by and watches me typing. Every time I type a line, she sighs." Liu Huiling said frankly that now she feels "highly nervous" and "afraid of going to work" every day, and is considering leaving her job.
Similar situations of "soft violence" in the workplace are not isolated cases. Ma Xuanwei works for a cultural media company. He told reporters that because he once expressed different opinions on the content of new products launched by the company, he was excluded and isolated by the new leader of the department. "I was not included in meetings and small work groups, and I was also excluded from department team building."
At this year’s National Two Sessions, Feng Yuanzheng, a member of the National Committee of the Chinese People’s Political Consultative Conference, called attention to psychological violence, saying that “spiritual violence from superiors and colleagues also requires vigilance.”
According to Wang Tianyu, a researcher at the Institute of Law of the Chinese Academy of Social Sciences, defining "soft violence" in the workplace requires comprehensive consideration of multiple factors. For example, whether the relevant words and deeds occur in the workplace or are triggered by work, whether they are targeted at the worker himself or specific work matters, whether they are long-term and frequent, and whether they cause harm.
How to prove mental injury
"I didn't deduct any money from you, nor did I beat you." After the incident, this was the advice Liu Huiling heard the most.
For workers who are suspected of encountering "soft violence" in the workplace, how to prove that there is a causal relationship between their workplace experience and the mental harm they suffered?
Shi Kuo, head of the Workplace Stress Reduction Clinic of the Clinical Psychology Center of Peking University Sixth Hospital, analyzed that from the perspective of clinical assessment, the problem of mental damage caused by "soft violence" in the workplace does not correspond to a fixed diagnosis. The first thing some people feel is not "I am anxious", but inability to sleep, flustered, tired, or nervous when they think about going to work or seeing messages from their leaders.
"He was the leader. Although I was angry, I did not plan to resign immediately. I thought I would just endure it and get over it." Pan Hongying said frankly that later she sought medical treatment due to insomnia and psychological stress. She was diagnosed with acute stress disorder and sleep disorder, and finally chose to resign.
However, the presence of symptoms does not automatically equate to a guarantee of compensation. Deng Yong, director of the Health Legal Research and Innovation Transformation Center of Beijing University of Chinese Medicine, said that the existing work-related injury identification path cannot fully cover mental disorders caused by long-term workplace mental oppression. The current "Classification and Catalog of Occupational Diseases" has a category of "occupational mental and behavioral disorders", but depression and anxiety disorders are not included in the scope of statutory occupational diseases. It is difficult to determine that related mental illnesses are entirely caused by work.
"This means that workers usually need to claim compensation for mental damages through civil torts, and the civil route does not reduce the requirements for proving the "severity" of the damage. However, simple bad mood or short-term insomnia is often not enough to reach the legal threshold of "serious mental damage."" Deng Yong analyzed.
"Medical diagnosis mainly answers "whether there is a disease and what the condition is." It cannot alone answer "who caused the disease and who should bear the responsibility." Shi Kuo further said that mental disorders generally have multiple causes. Criticism cannot be directly identified as the only cause because the patient "depressed after being criticized", nor can the possible induction or aggravation effect of workplace experience be denied just because the patient has a history of mental disorder.
"'Soft' describes the concealment of the infringement, which does not mean that the harm is light." In Shi Kuo's view, the understanding that "only if workers suffer from mental illnesses, such as depression, anxiety, post-traumatic stress disorder, etc., are the injuries suffered by workers worthy of attention" should be corrected. Some workers who have not yet met the diagnostic criteria for the disease may already be suffering from obvious pain, and they also need support and appropriate intervention.
Make "soft injuries" evidenceable and remediable
Wang Tianyu believes that excessive burden of proof should not be imposed on workers. "One possible direction is that after workers have initially proved that they have encountered "soft violence" in the workplace, the employer should explain the legitimacy of its management behavior," he said.
At the same time, Wang Tianyu suggested that relevant departments could enumerate typical behaviors and set up safety clauses, and the employer should bear the obligations of prevention and supervision.
In a reputation dispute, a company executive named Huang was diagnosed with severe depression after being verbally abused by the company's legal representative Wang for a long time.
Regarding this case, the Dongcheng District People's Court of Beijing held that based on the WeChat group chat records and other evidence in the case, Wang's behavior had constituted an infringement on Huang's reputation. According to the law, Wang was ordered to publicly apologize to Huang and compensate him for medical expenses and mental damage solatium.
Deng Yong said that the current law does not treat "soft violence" in the workplace as an independent legal concept. In practice, judicial organs often can only "handle fragmentary" relevant situations based on some legal provisions in my country's Civil Code, Labor Law, Labor Contract Law, Public Security Management Punishment Law, and Criminal Law.
In this regard, Deng Yong further proposed that the improvement of relevant systems should be promoted from three levels: judgment standards, burden of proof and prevention obligations, rather than just adding a definition of "soft violence" in the workplace.
"To be specific, operable judgment standards are the starting point of regulation, and adjustment of the burden of proof is the key to solving the difficulty of obtaining evidence. The employer's prevention and control obligations should be legalized and run through the entire management process." Deng Yong said.
"Reasonable performance management can be strict, but it should set clear standards and improvement paths based on the facts of employees' work, and provide opportunities for defence." Shi Kuo suggested that for the phenomenon of "soft violence" in the workplace, employees should be allowed to bypass the direct leaders who are complained about to effectively defend their rights and prevent retaliation. At the same time, employees should not be given negative labels based on this.
(Some of the interviewees in this article are pseudonyms)
Reporter Chen Dandan
