The Kaohsiung High Administrative Court rendered the 108-Su-56 Decision of June 13, 2019 (hereinafter, the “Decision”), holding that the nature of work for which recruitment is conducted has no connection with gender and age. However, if the job opening information obviously requires job applicants to be young women, this is tantamount to direct or indirect unfavorable treatment to job seekers in terms of factors such as gender and age in violation of Article 5, Paragraph 1 of the Employment Service Law and Article 7 of the Law of Gender Equality in Employment.
According to the facts underlying this Decision, the Department of Labor of Kaohsiung City Government received a complaint from a citizen against the job opening information posted by the Plaintiff on April 27, 2017 (hereinafter, the “Information at Issue”). The information includes: “We do not engage in sexual discrimination. As long as you can wear a short skirt to meet the company’s requirements, it’s fine with us… For the sake of safety, senior job seekers are advised not to apply, and priority will be given to job seekers aged around 20 with better physical fitness…” The Defendant issued a letter to cite the violation and provided an opportunity to make a statement. Although the Plaintiff issued a written opinion, still after the Defendant considered the investigated facts and the opinion as stated and referred this matter to the Employment Discrimination Evaluation Committee of Kaohisung City Government, which adopted a resolution that upheld the finding of gender and age discrimination in this case, the Defendant imposed a fine and announced the name of the Plaintiff in accordance with Article 24, Paragraph 1 of the Administrative Penalty Law and Article 38-1, Paragraphs 1 and 3 of the Law of Gender Equality in Employment for his violation of Article 5, Paragraph 1 of the Employment Service Law and Article 7 of the Law of Gender Equality in Employment effective at the time of the act. Dissatisfied, the Plaintiff filed an administrative appeal, which was rejected. Therefore, the Plaintiff brought the dispute to the administrative court.
It was first pointed out in this Decision that the legislative objective of Article 1 of the Employment Service Law is to promote the employment of the people and further social and economic development. Article 5, Paragraph 1 of the same law provides: “To guarantee the equal opportunity of employment for the citizens, an employer shall not discriminate against job seekers or employees based on the ….., gender, sexual orientation and age ….” In addition, the legislative objective of Article 1 of the Law of Gender Equality in Employment seeks to safeguard the equal employment rights of different genders, eliminate gender discrimination and promote the substantive equality in the status of different genders under the Constitution. Article 7 of the same law provides that an employer shall not provide differential treatments to job applicants or job seekers based on gender or sexual orientation.
Moreover, according to the Decision, the Information at Issue specified items such as the job openings, job descriptions, locations, compensation, benefits of the company and qualifications of the applicants. In addition, benefits such as three holiday bonuses were mentioned. The Information at Issue is obviously job opening information posted by the Plaintiff to recruit employees. Although the Plaintiff stated that the Information at Issue did not intend to discriminate against the employment of job seekers in terms of gender and age, still the job descriptions indicated in the Information at Issue shows that the positions opened did not pertain to work that can be handled only by female employees of 20. Namely, the gender and age of the employees have nothing to do with the above work. The Information at Issue obviously target 20-year-old women, making interested male job seekers or female job seekers older than 20 believe that they are not eligible or discouraging them from applying. This deprives them of the interview opportunities they are initially entitled to in the job application process. Therefore, this constitutes direct or indirect treatments unfavorable to job applicants based on factors such as gender or age in violation of Article 5, Paragraph 1 of the Employment Service Law and Article 7 of the Law of Gender Equality in Employment effective at the time of the act. Therefore, since the Plaintiff’s complaint is baseless, it should be dismissed.