美国性骚扰法律制度及其借鉴意义

性骚扰是不受欢迎的带有性色彩的言行,是一种非法的性歧视。依美国判例,性骚扰不必源于性的目的,其内容不必是直接的表示;同时,性骚扰行为者在主观上应当是有过错的,受害者在主观上须为不欢迎骚扰行为。构成可诉的性骚扰行为其损害后果须达到严重的程度。依美国最新判例,同性之间也可以构成性骚扰;雇主对员工中的上级职员的性骚扰行为承担民事责任。美国的性骚扰法律制度对我国的立法具有一定的借鉴意义,如公法上的规定并不排除私法的适用,性骚扰的含义应当包含性别歧视,雇主责任应当在立法上得以确立,立法者应当在道德规范和法律规范中寻找平衡点。

US Sexual Harassment Law and Its Reference

Sexual harassment means unwelcome conduct or phrase of sexual nature and is a form of unlawful sex discrimination. According to US case law, harassing conduct need not be motivated by sexual desire, and harasser is usually much more subtle and tends to imply things rather than say them outright. Meantime, harasser should realize that what they are doing is offensive, and victims don't welcome the harassing conduct. Severe consequence is needed to constitute actionable sexual harassment. According to US newest case law, same-sex sexual harassment is actionable and an employer is vicariously liable for harassment by a supervisor with authority over the harassed employee. Chinese legislator can draw lessons from US sexual harassment law, which include public law does not necessarily excluding the application of private law, sexual harassment should including sex discrimination, vicarious liability being established and the balance between law and norm of morality.