Preventing Workplace Sexual Harassment: Employer's Obligations

In Taiwan, there are three significant acts that regulate sexual harassment: (i) the Act of Gender Equality in Employment (referred to as the “AGEE”); (ii) the Gender Equity Education Act; and (iii) the Sexual Harassment Prevention Act. The Gender Equity Education Act primarily addresses incidents occurring within the campus, where students are sexually harassed by school's principal, faculty, staff member, or other students. The Sexual Harassment Prevention Act only governs situations not covered by the AGEE and the Gender Equity Education Act. This article focuses on the Articles 12 and 13 of the AGEE, which are relevant to the prevention of workplace sexual harassment.

Article 12, Paragraph 1 of the AGEE defines sexual harassment as: “1. In the course of an employee executing his or her duties, any one makes a sexual request, uses verbal or physical conduct of a sexual nature or with an intent of gender discrimination, causes him or her a hostile, intimidating and offensive working environment leading to infringe on or interfere with his or her personal dignity, physical liberty or affects his or her job performance; 2. An employer explicitly or implicitly makes a sexual request toward an employee or an applicant, uses verbal or physical conduct of a sexual nature or with an intent of gender discrimination as an exchange for the establishment, continuance, modification of a labor contract or as a condition to his or her placement, assignment, compensation, evaluation, promotion, demotion, award and discipline.” In summary, workplace sexual harassment could be categorized into: “hostile sexual harassment” and “quid pro quo sexual harassment.” When victims encounter unwelcome, sexually suggestive, or gender-discriminatory words or behavior while performing their duties or seeking jobs, their working conditions may subsequently be affected.

According to Article 12, Paragraph 2 of the AGEE, whether a conduct constitutes workplace sexual harassment shall be determined on a case-by-case basis, considering factors such as the background of the incident, work environment, relationship between the parties, the actor's remark and conduct, and the counterpart's perception.

Also, according to Article 13, Paragraphs 1 and 2 of the AGEE, employers shall prevent and correct sexual harassment, and are required to take immediate and effective correctional and remedial measures when they “know” the sexual harassment. Further, for employers with over thirty employees, measures of prevention, correction, complaint, and punishment for sexual harassment (“Prevention Measures”)shall be adopted and openly displayed at the workplace. As authorized by Article 13, Paragraph 3 of the AGEE, the competent authority has promulgated “Regulations for Establishing Measures of Prevention, Correction, Complaint and Punishment of Sexual Harassment at Workplace,” establishing a benchmark for the Prevention Measures.

Thus, regardless of the business scale, as long as the employers know the sexual harassment, they are obliged to prevent employees from being victimized by it. The employers could “know” the sexual harassment by reports from the victim (complaint), the third-party, or police investigations. Hence, the employers would be able to take immediate and effective correctional or remedial measures and being held accountable by the competent authority when they fail to do so, only if they are genuinely informed of specific and explicit facts of the sexual harassment. (see Supreme Administrative Court 110-Shang-Zi No. 393 Administrative Judgment).

The “immediate and effective correctional and remedial measures” should include the employer's active involvement in the investigation on  the whole story of the incident and the feelings of the victim (see Taiwan Taipei District Court 102-Jian-Zi No. 4 Administrative Judgment). The employers should subsequently take effective measures, including isolating the alleged harasser from the victim, providing consultation for the alleged harasser, and implementing sexual harassment awareness program/ educational training on gender equality for all employees on a regular or irregular basis, etc. Furthermore, employers' obligation to prevent sexual harassment will continue even if the victim has left the company or the case has entered the judicial procedures.

In addition, when the alleged harasser is the employer, the role conflict may arise. That is, the employer on one hand may deny having sexually harassed the employee, but must on the other hand, take immediate and effective correctional and remedial measures to comply with the law. Given such, to decide whether the employer has violated its obligation under Article 13, Paragraph 2 of the AGEE, the court should consider the case facts and the employer's unique situation and further determine  if the obligation imposed on the employer is practically or legally impossible to comply with (see Supreme Administrative Court 110-Shang-Zi No. 68 Administrative Judgment).

Since under the labor contract, the employer has the incidental obligation to protect and care for workers, the employer is obliged to provide a safe and friendly working environment. The purposes of Article 13, Paragraph 2 of the AGEE includes: (i) protecting employees from workplace sexual harassment; (ii) ensuring a work environment free from harassment concerns; (iii) safeguarding the human dignity, personal freedom, and fair job performance; and (iv) achieving gender workplace equality, eliminating gender discrimination, and promoting substantial gender equality. Therefore, considering employers are the one most capable of preventing workplace sexual harassment proactively, handling the controversy through the internal complaint system, and offering compensation after an incident occurs, the AGEE imposes obligations on employers to prevent employees from being sexually harassed. According to Article 38-1 of the AGEE, employers who fail their obligation under Article 13, Paragraph 2 of the AGEE may be fined anywhere between TWD 100,000 and 500,000, and their name or title, and the person-in-charge shall be put on public notice. Also, the employers are liable for employees'or job seekers' damages resulting from the incident. These consequences should be noted because they could significantly impact the operation and business reputation of a company.

(The article is based on AGEE regulations that are currently valid.  For your information, the AGEE has been amended on August 16, 2023 and will come into effect on March 8, 2024.)

(The article is originally in Chinese which can be found here.)

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Preventing Workplace Sexual Harassment: Employer's Obligations