By Hung Ou Yang
Taiwan's legislature passed multiple amendments to protect sexual harassment victims on 16 August 2023, taking effect on 8 March 2024, because incessant sexual harassment and assault allegations spread rapidly across Taiwan. When there might be more and more sexual harassment accusations filed, we understand that there might be some cases involving false accusations mixed with inappropriate motives either in your work environment or in other settings. This article aims to introduce the new Taiwan legal structure, focusing on the due process of law the alleged perpetrator should understand when facing the sexual harassment accusation in work environment.
Legal Structure for Preventing Sexual Harassment
Generally speaking, the Gender Equality in Employment Act ("GEEA") is the main regulation regarding sexual harassment in work environment. When the sexual harassment occurs outside work environment, the Sexual Harassment Prevention Act controls. When the sexual harassment happens in schools, Gender Equity Education Act will govern. However, the basic definitions of "sexual harassment" under the three acts are quite similar.
The Definition of Sexual Harassment under the GEEA
Section 1 of Article of the GEEA provides for two main types of sexual harassment.
(1) Hostile environment: The elements of hostile environment type sexual harassment in Taiwan are as follows.
a. In the course of an employee executing his or her duties,
b. Any one makes a sexual request, uses verbal or physical conduct of a sexual nature, or with an intent of gender discrimination,
c. Causes the victim a hostile, intimidating and offensive working environment, AND
d. Leading to infringe on or interfere with the victim's personal dignity, physical liberty or affects the victim's performance.
(2) Quid pro quo: The elements of quid pro quo type sexual harassment in Taiwan are as follows.
a. An employer explicitly or implicitly makes a sexual request toward an employee or an applicant,
b. Uses verbal or physical conduct of a sexual nature or with an intent of gender discrimination, AND
c. In exchange for the establishment, continuance, modification of a labor contract or as a condition to the victim's placement, assignment, compensation, evaluation, promotion, demotion, award and discipline.
Corporate Internal Investigation Will Be Initiated
Under Section 2 (1) of Article 13 of the GEEA, the employer will be required to take measures to prevent the recurrence of harassment against the victim who files the complaint, and initiate an investigation on the sexual harassment incident, among others. That being said, the employer will have to conduct corporate internal investigation to determine whether the sexual harassment complaint can be sustained. The GEEA's amendment even provides that the employer will be required to probe the facts regarding the sexual harassment when the employer is aware of the incident not via the victim's complaint. Therefore, a corporate internal investigation will be initiated whenever the employer is aware of the sexual harassment incident, regardless of whether there is a victim's complaint.
The Best Defense Strategy When Facing A Sexual Harassment Complaint
Generally speaking, truth is the best defense strategy when facing a sexual harassment complaint. If you can prove that the victim's complaint is false, surely the complaint will be dismissed. However, truth is a matter of circumstances under the GEEA. Section 4 of Article 12 of the GEEA provides that the determination of sexual harassment shall assess "the background of the incident, work environment, relationship between the parties, the actor's wording and conduct, and the victim's perception, taking into account specific facts in each case". That is to say, the investigation team will make a decision based on the totality of circumstances.
So, what can you do when you truly do not think you commit sexual harassment in work environment under this legal structure? First, try to recall all the details about the alleged incident. It is highly likely that you do not know the exact content of the sexual harassment complaint. However, the chances are that you know to a certain extent what words you said or what acts you took might be interpreted to constitute sexual harassment. Thus, you have to recall all the details surrounded the alleged sexual harassment, using your own words to describe "the background of the incident, work environment, relationship between the parties" based on your understanding, explaining "your wording and conduct" from your perspective, and clarifying why the victim should not perceive it in a negative way against you, by "taking into account specific facts" you remember in your case. Here, of course, you would be better served if you can find at least one witness who is willing to testify honestly in your favor.
Can you bring a lawyer with you when you are interrogated by the company's investigation team? Probably yes. The GEEA does not state that you cannot bring a lawyer with you for the company's internal investigation. The problem is that the GEEA does not provide for your right to an attorney's assistance. Therefore, it appears that the GEEA leaves this issue open to each company's internal policy. Generally speaking, the company will not refuse your lawyer to be present and raise legal arguments on behalf of you during the investigation. It will be a wise decision if you consult a lawyer prior to the investigation, and directly bring a lawyer with you for the investigation when you have not received a clear answer.
AUTHOR: Hung Ou Yang
Managing Partner
Taipei
+886-2-2707-9976
[email protected]
Copyright: Brain Trust International Law Firm
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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