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When I Experience Sexual Harassment in the Workplace. Who can help me?

To know what is defined as sexual harassment in the workplace
 
       In Taiwan handling sexual harassment cases involves three laws and decrees: “Act of Gender Equality in Employment”(AGEE), “Gender Equity Education and Act”(GEEA) and “Sexual Harassment Prevention Act”(SHPA). The AGEE is applied to the incident involving sexual harassment occurring in the workplace.

       Under the AGEE, there are two types of sexual harassment defined: Hostile sexual harassment and Quid pro quo sexual harassment.

       “Hostile sexual harassment in the workplace” refers to situations where the employee’s work environment is made hostile, threatening or offensive due to unwanted sexual requests, speech or conduct that discriminates against a gender or with sexual implications, resulting in offending and impeding the employee’s dignity, personal freedom or impacting the employee in his or her job performance. This type of harassment can be perpetrated by anyone in the work environment, including employers, co-workers, clients, etc.

       Quid pro quo sexual harassment refers to situations where an employer uses the power over his or her subordinates to ask explicitly or hint at sexual favors, or through speech and conduct with sexual meaning or gender discrimination in exchange for employment benefits. The exchange terms may include offering an employment contract, its renewal, its altering, job assignment, job allocation, salary, work evaluation, promotion, demotion, rewards and punishments.

       The determination of sexual harassment is based on a case-by-case basis. It involves the incident background, work environment, relationships between the parties, alleged perpetrator’s speech and conduct, and the corresponding party’s acknowledgement. If you experience sexual harassment in the workplace, who can you ask for help?

       According to article 13 of the AGEE, the employer shall be held liable for preventing sexual harassment from occurring. As long as the employer receives knowledge or awareness of the sexual harassment incident, he or she shall take prompt and effective corrective measures and remedies after incidents. When the employee is sexually harassed at work, he or she is therefore supposed to file an internal complaint with the business entity where he or she is working. The business entity will investigate and clarify the allegation.

       Provided that the business entity does not deal with the incident properly, the victim may file a complaint, based on the AGEE, with the competent authority that governs labor affairs, closest to the workplace. After receiving the complaint, the competent authority will investigate whether or not the employer’s handling is in accordance with the law.

       The complaint of sexual harassment stipulated by the AGEE only refers to a review of the preventive measures that the employer has undertaken. It does not mention either the right to investigate sexual harassment or how to directly punish an alleged perpetrator.

       Under article 27 of the AGEE, if the employee or job seeker suffers from sexual harassment in the workplace resulting in damage to his or her person, the employer and alleged perpetrator shall bear joint liability for the obligations of damage compensation. If the employer can testify or submit proof that he or she had followed up on all the preventive measures for sexual harassment and the incident still couldn’t be avoided, the employer will not be held responsible for paying out compensation. Referring to the preceding exceptions regulation, if the victim fails to be compensated for damages, the court could consider the employer’s and victim’s economic situation after receiving the claim, and could order the employer to pay the whole or partial compensation for damages. However, after that, the employer can make a claim against the perpetrator for the amount that the employer has paid out on the employee’s behalf.

       Taking the following case as an example, Manager Lang took advantage of Xiaohua by asking her to discuss business in a conference room with the door closed. In there, Xiaohua was unexpectedly harassed by her supervisor, who touched her breast and gave her a bear hug. His behavior scared Xiaohua, and Xiaohua hastened out of the room in a great rush. This is a typical sexual harassment scenario at work. At that moment, what can Xiaohua do?

       Xiaohua can immediately file a complaint with the unit that deals with sexual harassment complaints in the company. Reporting to the employer or the chief supervisor of the Human Resources Department or Management Department is the quickest way, either with an oral or written statement. Filing either an oral or a written complaint through email or LINE is acceptable. Asking for help through a correspondence method that is assured to arrive to the company is accepted as well.

       Giving a bear hug and touching breast, Manager Lang violated article 25 of the SHPA. Xiaohua can report to the police station near to where the incident occurred and file a criminal litigation about Manager Lang. If the company ignores or doesn’t legally deal with her complaint, she can submit a claim with the competent authority near to where she is working.
Let’s take the preceding case as an example. After having received Xiaohua’s complaint, we separately interviewed Xiaohua and her employer to clarify Xiaohua’s dissatisfaction and the employer’s handling procedures. The above allegation will be submitted to the committee of Gender Equality in Employment for their reviewing. Provided that the committee finds that the employer is in a violation of the law, we will impose upon the employer a fine of one hundred to five hundred thousand Taiwan dollars.

       The victim, who had filed a complaint with us, hoped that we could have investigated the authenticity of the sexual harassment incident and punished the perpetrator. However, by the SHPA regulation, the competent authority can not impose a punishment on the perpetrator. They can only inspect and impose upon the behavior of the employer, instead.

       In Xiaohua’s case, if it was found true that Manager Lang had sexually harassed Xiaohua in the conference room, the company is supposed to punish Manager Lang in accordance with the management or working regulations of the company. If Xiaohua tries to claim compensation for Manager Lang´s behavior, she can go through the internal management of the company or she can file a criminal case and bring a collateral supplementary civil suit to the criminal process.
We, Department of Labor of Taipei City Government, are offering free counseling with our lawyers, who offer legal advice to the public.
 
Key points for claiming and allegation:

  1. To the perpetrator:
a.After a complaint is filed with the employer, if the investigation reveals allegations to be true, the employer shall administer a proper punishment to the perpetrator, based on the severity level of the incident.

b.Anyone can report to the police station or directly to the Taipei District Prosecutors or submit or file a complaint about the sexual harassing behavior that is in violation of the sexual harassment crime as stipulated in article 25 of the SHPA, invasion of privacy crime as stipulated in article 315-1, public insult crime as stipulated in article 309, slander crime as stipulated in article 310 and public indecency crime as stipulated in article 234 of the Criminal Code.
  1. To the employer
  1. a laborer: to file a claim with the competent authority governing labor affairs, close to the workplace, such as the Department of Labor of Taipei City Government
  2. a public servant, education faculty and military personnel: to file a claim on an individual personnel law basis
  •  We, Department of Labor of Taipei City Government, offer the related information as follows:
  1. Administrative claim: to file a complaint under the AGEE
  2. Mediation: to file for a mediation for labor-management disputes
  3. Legal counseling: to telephone and counsel with a lawyer on site
  4. Law and decrees counseling: to listen to the explanations of the person who is in charge of the matter