By Hung Ou Yang
The newly amended Gender Equality in Employment Act ("GEEA") will take effect on 8 March 2024, giving more protection to sexual harassment victims in Taiwan. Under the new legal structure, Taiwanese companies and foreign investors' Taiwanese branch offices or subsidiaries will bear more responsibilities for preventing sexual harassment recurrence in work environment. This article will not only introduce the new legal structure to the Taiwanese employers, but also give the employers clearer guidelines and tips which cannot be easily identified in the statutes for addressing sexual harassment issues.
What should an employer do for preventing sexual harassment?
The key provision for preventing sexual harassment in work environment is Article 13 of the GEEA ("Article 13"). Article 13 provides that the employers shall "take appropriate measures to prevent sexual harassment". By "appropriate measures", it means employers with ten or more but fewer than thirty employees shall establish a sexual harassment complaint channel, and publicly display it in the workplace. Such employers will be imposed a fine no less than NTD 10,000 but no more than NTD 100,000 when being ordered to improve but still fail to establish the sexual harassment complaint channel within the specified period of time. See Section 4 of Article 38-1 of the GEEA.
When an employer hires over thirty employees, such an employer shall enact internal regulations for preventing sexual harassment with related complaint procedures and disciplinary policy, and publicly display it in the workplace. Absent the internal regulations, or failing to display it publicly, such employers will be directly imposed a fine no less than NTD 20,000 but no more than NTD 300,000. That being said, the authorities will not give the employers with more than thirty employees a chance to improve. A fine may be directly imposed. So, employers beware! See Section 3 of Article 38-1 of the GEEA. As to the internal regulations, the tip I can give you is that you do not have to devise all the rules from scratch. You may use a public template, which generally will be more complete than you can imagine, on the Taiwanese government's website.
What should an employer do when a sexual harassment case occurs?
The GEEA sets out a clear line and need-to-be taken measures for employers to follow. When an employer becomes aware of a sexual harassment case, such an employer shall "take immediate and effective corrective and remedial measures". The measures need to be taken are as follows.
1. When an employer becomes aware of sexual harassment due to a complaint from the victim:
(1) Take measures to prevent the recurrence of harassment against the complainant,
(2) Provide or refer the complainant to counseling, medical or psychological counseling, social welfare resources, and other necessary services,
(3) Investigate the sexual harassment incident, AND
(4) Administer appropriate disciplinary action or disposition.
2. When an employer becomes aware of a sexual harassment incident not because of the victim's complaint:
(1) Clarify the relevant facts as necessary,
(2) Assist the victim in filing a complaint according to the victim's wishes,
(3) Make reasonable adjustments to work content or the workplace, AND
(4) Provide or refer the victim, as desired, to counseling, medical or psychological counseling, social welfare resources, and other necessary services.
Based on the foregoing, can an employer say that he is not supposed to take any action merely because the victim has not filed a sexual harassment complaint yet? The answer is absolutely NO! Here, the clear line set out by the GEEA is whether the employer is aware of a sexual harassment incident, not whether the victim has filed a complaint or not. The newly amended GEEA makes a pivotal change of concept as to when the employers shall take actions. That is, as long as the employers becomes aware of a sexual harassment incident because of a third party's formal written report, a slip-out during some colleagues' conversation, or even some hearsay, the employers will be required to take some actions, starting from "clarifying the relevant facts as necessary". Failing to do so will lead to a fine no less than NTD 20,000 but no more than NTD 1,000,000. See Section 2 of Article 38-1 of the GEEA.
Moreover, if the victim and the alleged perpetrator belong to different entities but have collaborative work or business relations, the employer of the alleged perpetrator shall take the foregoing measures as well. See Section 2 of Article 13.
Will an employer only need to address sexual harassment which occurs during work hours?
The newly amended GEEA expands the scope that an employer shall be responsible to address for sexual harassment issues. In short, even though sexual harassment occurs to your employee (the victim) outside work hours, the responsibility will still fall on your shoulder when sexual harassment is made continuously by the same colleague employed by you, or by the same person not employed by you but work together with the victim.
On top of that, the employers will bear the responsibilities under the GEEA when their employees are sexually harassed outside work hours by the highest ranking official, such as a company's legal representative or a company's chairman of its board. Here, there is no "made continuously" requirement, meaning that the employer may have to take necessary measures when the employee is sexually harassed outside work hours by the highest ranking official on a one time basis. See Section 3 of Article 12 of the GEEA.
What should an employer do for the sexual harassment investigation?
For the investigation verifying sexual harassment incidents, the employers shall conduct it based on the principles of objectivity, fairness, and professionalism. The employers shall provide the involved parties, including but not limited to the victims and the alleged perpetrators, with an opportunity for a full statement, and a chance to defend themselves. When it is necessary to interview the involved parties, the employers shall avoid repetitive questions.
Moreover, where a complaint-handling team has been established in accordance with the employers' internal regulations, Section 3 of Article 13 further provides that the team members shall include professionals with "gender awareness". Very abstract and hard to find such a professional, right? No worries, the Taiwanese Ministry of Labor is establishing a database for such professionals for your references.
Is taking immediate and effective corrective and remedial measures sufficient for a sexual harassment incident?
Not anymore. The newly amended Section 4 of Article 13 provides that "[w]hen an employer receives a complaint from the victim, the employer shall notify the local competent authority. When the employer confirms that it is a sexual harassment case after investigation, the results of the handling shall also be submitted to the local competent authority". That being said, after 8 March 2024, the local authorities will start to oversee the measures taken by the employers for a sexual harassment incident. However, Section 4 of Article 13 only requires the employers to notify the local competent authority when there is a victim's complaint. That is to say, the employers have not been required to notify the local competent authority when the victim fails to file a sexual harassment complaint. It seems that there is a loophole here. More ironically, when the employers fail to notify the local competent authority per Section 4 of Article 13, the GEEA does not provide that a fine shall be imposed to the employers.
Will an employer face any other consequences for a violation except for a fine under the GEEA?
Unfortunately, yes. The consequences could be very severe. According to Section 6 of Article 38-1 of the GEEA, when there is a violation mentioned above, the employers' names, the names of their representatives, the date of the fine imposed, the violated Articles, and the amount of the fine will be publicly disclosed, and the employers will be given a deadline to make improvements; if improvements are not made by the specified deadline, the employers will be further imposed a fine on each occasion.
Put it simply, when employers violate certain provision under the GEEA, they will be put on a blacklist regarding sexual harassment.
Can an employer fire the perpetrator because of sexual harassment?
According to the newly enacted Article 13-1 of the GEEA, the answer is YES. Based on the employers' investigation, when the sexual harassment can be confirmed and the circumstances are severe, the employers may terminate the employment contract without prior notice within thirty days from the date they become aware of the investigation results.
More than that, when the accused perpetrator holds a position of authority, the circumstances are severe, and it is necessary to temporarily suspend or adjust the duties of the perpetrator during the investigation, the employer may temporarily suspend or adjust the duties of the perpetrator. After the investigation, where the sexual harassment cannot be confirmed, the salary for the suspension period shall be retroactively paid.
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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