March 2024
Elizabeth Pai and Lilian Hsu
In order to establish a gender-friendly work environment and effectively prevent and handle incidents of workplace sexual harassment, the Ministry of Labor has been continuously reviewing the deficiencies of existing regulations and promoting relevant law amendments. Among them, amendments to certain provisions of the Gender Equality in Employment Act (“the GEEA”) were promulgated by the President in August 2023. Subsequently, the Ministry of Labor revised and announced the “Regulations for Preventing and Handling Workplace Sexual Harassment” (“the Regulations”) on January 17, 2024. The aforementioned amendments has been implemented in stages, with full implementation on March 8, 2024[1].
This Amendment covers a wide range, including expanding the scope of the GEEA, defining “abuse of power sexual harassment,” and providing specific rules regarding the types of sexual harassment behavior, employer’s corresponding response to sexual harassment incidents, and regulatory density differentiated by business scale. The key points of the Regulations are summarized as follows:
1. What is sexual harassment? What behaviors are regulated by the GEEA?
According to the GEEA, any “sexual requests, verbal or physical behaviors with sexual connotations or gender discrimination,” occur during the course of an employee executing duties, resulting in a hostile, intimidating, or offensive work environment, as well as those initiated by employers constituting conditions for changing labor relations or rewarding, may be considered sexual harassment. Based on the particulars above, further adjustments have been made in the Amendment as follows:
(1) Expanding the application scenarios of the GEEA to include the following non-working hours:
- An employee experiences persistent sexual harassment by colleagues or other business-related individuals during non-working hours.
- An employee experiences sexual harassment by the highest-ranking official within the legal entity or employer during non-working hours.
(2) Besides defining “abuse of power sexual harassment,” authorizing the court in such cases to impose punitive damages ranging from one to three times the amount at the request of the victim.
(3) Specifying the behaviors constituting sexual harassment. For example, inappropriate staring, repeated or persistent following or pursuing behavior against the victim’s will, etc., may be considered as constituting sexual harassment.
2. How should employers respond when sexual harassment occurs?
Employers should take immediate and effective rectification and remedial measures when they become aware of sexual harassment; violations may result in administrative fines. The Amendment specifies the employer’s above-mentioned obligations as follows:
(1) The term “awareness” includes noticing a suspected sexual harassment incident through complaints from victims and other channels. In other words, even if no specific victim files a complaint, employers must take immediate and effective rectification and remedial measures when they become aware of the suspected incidents through anonymous complaint letters or the media.
(2) When receiving a complaint from a victim, the employer should take certain measures as required by law, such as providing or referring necessary services such as medical or psychological consultation to the complainant; if a sexual harassment incident is verified, appropriate disciplinary or corrective actions should be taken against the perpetrator, depending on the severity of the circumstances; if the complaint is found to be maliciously fabricated, appropriate disciplinary or corrective actions should also be taken against the complainant.
(3) When becoming aware of a suspected sexual harassment incident other than the receipt of a complaint from the victim, employers should take certain measures according to victims’ wishes, such as assisting victims in filing complaints, and providing or referring necessary services such as medical or psychological consultation.
3. Adopt differential regulatory density based on business scale
Considering that the ability of enterprises to allocate resources in preventing and handling workplace sexual harassment varies depending on their size (i.e., employers with ten or more employees, employers with thirty or more employees, employers with a hundred or more employees, and employers with five hundred or more employees), the Amendment imposes different levels of obligations on employers based on the number of employees. For example, Employers with ten or more but fewer than thirty employees should establish a complaint channel and publicly disclose it in the workplace. Employers with thirty or more employees, in addition to establishing channels for complaints, should also formulate internal rules for preventing and handling sexual harassment in accordance with the Regulation and publicly disclose them in the workplace.
Due to the significant changes in the GEEA and related regulations, employers are advised to re-examine the internal rules and related operating procedures regarding sexual harassment to reduce the risk of legal liabilities and maintain a gender-friendly working environment.
[1] The amendment of the GEEA and the Regulation, referred to in this article as “the Amendment.”
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