Alex Liao
The Supreme Administrative Court rendered the 109-Pan-114 Decision of March 5, 2020 (hereinafter, the “Decision”), holding that if an employer makes the leave application formalities for menstrual leave extremely difficulty by probing into privacy to an extent that is obviously difficult for the female employees to take such leave, this is still deemed an unfavorable measure under Article 21, Paragraph 2 of the Law of Gender Equality in Employment, even if this has nothing to do with the bonus or the performance evaluation.
According to the facts underlying this Decision, A, who was employed by the Appellee as an operator, indicated that when she had applied to the Appellee for a menstrual leave, she was asked to come to the office to be tested with a test paper. After she filed a complaint, the New Taipei City Employment Discrimination Committee rendered a decision finding the Appellee in violation of Article 21, Paragraph 2 of the Act of Gender Equality in Employment, and the Appellant imposed a fine on the Appellee, announced the Appellee’s name and the name of its legal representative, and request immediate rectification (hereinafter, the “Original Disposition”). Dissatisfied, the Appellee brought an administrative action to set aside the decision on administrative appeal and the Original Disposition. Later, since the Appellant announced the Appellee’s name and the name of its legal representative pursuant to the Original Disposition, the Appellee changed its litigation claim and sought to get a declaratory judgment on illegality. The original trial court subsequently rendered a decision which stated: “The decision on administrative appeal and the Original Disposition shall be reversed with the exception of the portion that announced the Appellee’s name and the name of its legal representative; and it is determined that the portion in the Original Disposition that announced the appellee’s name and the name of its legal representative is illegal” (hereinafter, the “Original Decision”). Dissatisfied, the Appellant appealed.
According to the Decision, Article 21 of the Act of Gender Equality in Employment provides that an employer shall not reject a menstrual leave application from an employee. According to the legislative reasons, an employer should not treat an employee unfavorably on the ground that she has applied for menstrual leave, and this is one of the measures to promote equality of employment. Therefore, when a female employee applies for menstrual leave, although the employer’s treatment of menstrual leave as a leave of absence, which affects the full attendance bonus and performance evaluation of the leave taker, is an unfavorable treatment, if the employer takes an approach that probes into privacy to the extent that menstrual leave application formalities become extremely difficult, this obviously hampers a female employee from applying for menstrual leave and is also an unfavorable treatment in essence. Even if no bonus and performance evaluation are involved, this is still construed as part of other unfavorable measures under Article 21, Paragraph 2 of the same law in order to fulfill the regulatory objective to promote equality of employment.
The Appellant held that the Appellee’s request that A should be tested with a test paper in the office when A applied for menstrual leave violated Article 21, Paragraph 2 of the Act of Gender Equality in Employment. According to this Decision, after the statements of the Appellee, A and witnesses were considered, it was also necessary to consider that the Appellee’s requirement that all female employees of the company who apply for menstrual leave should be tested with a test paper in the office would have a significant impact on workers’ rights and interests and would also seriously trigger issues concerning the degree of culpability of the employees and their financial strength. Therefore, it is not legally inappropriate under Article 38 of the same law to impose a fine on the Appellee, announce the Appellee’s name and the name of its legal representative and request immediate rectification, and there is no adjudication defect such as adjudication beyond the scope of authority, abusive adjudication or indolence or improper connections such as erroneous weighing, either. The gist of the appeal, which criticized the original decision for its mistakes and requested its reversal, was well-grounded. Therefore, the original decision was reversed, and the Appellee’s first instance complaint was dismissed.