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Employer’s Responsibility to Prevent Sexual Harassment in the Workplace

Employer’s responsibility for sexual harassment occurring in the workplace
 
     Based on the Act of Gender Equality in Employment (AGEE), an employer is imposed to prevent sexual harassment from occurring in the workplace. Two key points involved in preventing sexual harassment are prevention and remedy. For the so-called “prevention”, in accordance with paragraph 1 of article 13 of the AGEE, an enterprise with thirty or more employees must provide and post in the workplace the preventative measures relative to sexual harassment, the procedures of filing complaints and its penalties.

     The law “Regulations for Establishing Measures of Prevention, Correction, Complaint and Punishment of Sexual Harassment at Workplace” clearly stipulates that the sexual harassment prevention measure includes implementing the educational training for preventing sexual harassment and promulgating a written statement of banning sexual harassment in the workplace. The educational training and posted statement are the significant approaches in prevention of sexual harassment in the workplace.

     Should the employer have done its best to prevent an incident of sexual harassment and it still does happen, what is to be done? It is therefore imperative to follow up the procedure for correction and remedy after an incident, for which paragraph 2 of article 13 of the AGEE stipulates that a corrective and remedial measure should be taken immediately.

     Upon receiving knowledge  of any sexual harassment occurring, the employer must immediately take the effective corrections and remedies, including organizing an investigation committee to investigate the incident of sexual harassment and to make resolutions. The employer has the responsibility to handle each complaint of sexual harassment confidentially to ensure the victim is neither treated unfairly nor is sought out for retaliation.

     One more point often neglected during the investigation by the employer for sexual harassment is the protection of the victim from the work environment in which the sexual harassment occurs. It is necessary to avoid, for example, the victim having any direct contact at work with the alleged perpetrator or being managed by the alleged perpetrator. The alleged perpetrator will be shifted to another department or suspended until the termination of the investigation, if necessary. If the investigation reveals allegations to be true, the harasser should be punished.

     To re-examine the work environment for its safety and to regularly conduct interviews about workplace safety with employees are of a significant concern for the employer in maintaining a friendly work environment.

     The terminology “employer” herein refers to the employer himself or herself, someone who represents the employer to implement the management rights or to deal with the business affairs, meaning, the supervisor of the complainant, the personnel department or the department accepting and handling the allegation of sexual harassment.

     What happens if I am the only staff member or if the employer is the alleged perpetrator of the sexual harassment? What immediate corrective and remedial measures should be taken by the employer?

     In accordance with paragraph 2 of article 13 of the AGEE, when  of the sexual harassment incident in the workplace, the employer should take prompt and effective corrective measures and remedial measures to remedy the situation as obligated by policy after incident. This regulation adapts to all types of companies, regardless of the scale of the company. Even the company with only one staff member, the Act adapts to it.

     Under law, as long as an employee experiences sexual harassment in the workplace, he or she is expected to file a complaint with the employer. However, the toughest part of situation is that the employer himself or herself is the alleged perpetrator of sexual harassment. What happens if the allegation is investigated unjustly?

     Under the Sexual Harassment Prevention Act (SHPA), the sexual harassment case, in which the alleged perpetrator is the person in a leadership position of the corporation, shall be handled by the Department of Social Welfare. Under the Gender Equity Education Act (GEEA), the sexual harassment case, in which the alleged perpetrator is the school principal, shall be handled by the Department of Education; while the AGEE does not mention it.

     According to paragraph 2 of article 13 of the AGEE, the motive behind the legislation does not emphasize that sexual harassment in the workplace shall be investigated by the competent authority, but it focuses on employer’s liability of the implementation of prompt effective corrective measures and remedies in preventing sexual harassment in the workplace.

     The employee’s responsibility is not to infer whether or not harassment actually occurs, but the key point is on the responsibility for prevention as stipulated in paragraph 2 of article 13 of the AGEE. As long as an employee expresses himself or herself of being harassed, even if the accused is the employer, the preceding Act will be applied.

     Since hiring family foreign workers is a prevailing trend, the protection for migrant workers’ rights and their safety has become significant. Upon filing a complaint about suffering from sexual harassment in the workplace or at the cared person’s family and demanding of the competent authority for a temporary shelter, the migrant worker can be expected to be promptly taken to the shelter.

     Some employers said that they had had no chance to communicate with the foreign worker that had been put in a shelter. It would be troublesome to impose the responsibility for investigating the allegations of sexual harassment if there is a problem in investigating, caused by not being able meet with the foreign worker sheltered. They have had concerns that investigating the allegation with the accused or other surrounding people or evidence is not practical and realistic.

    Department of Labor, Taipei City Government called for a meeting for laws and decrees on July 13, 2018. In the meeting, the preceding concerns of the employers were discussed, and their suggestions and expectations will be listed in the agenda and used as a reference in our future amendments. Nevertheless, before the amendment is completed or a guidance is made, no matter what the company scale is or whoever the alleged perpetrator is, as long as the employee experiences sexual harassment during the job, the employer is responsible for the prevention of sexual harassment.

     Generally, the employer hires a person with related educational background and experiences to investigate the allegation, in which the procedures are based on keeping of confidence and withdrawal principles. An impartial third party involved results in a more convincing conclusion. Ministry of Health and Welfare offers a talent pool for investigating sexual harassment to be used as a source for the business identities.

     The allegation case for the small scale business identity or the company with only one staff member accepted by us has been usually passed to a lawyer or the expert with the related experience to investigate the allegation and to complete the investigation report and written documents.

     In our experiences of handling complaints of sexual harassment, we have found that the accuser highly regards the procedures that the employer maintains. Finally, we would like to urge the employer that the respects and concerns of the victim during the handling of the complaints as well as the justice and attention to the allegations are one of the obligations that the employer should be devoted to.