At the end of May 2023, Taiwan’s #MeToo movement erupted because of several incidents of workplace sexual harassment. This revealed that the supervision and complaint mechanism for such incidents under the Gender Equality in Employment Act were inadequate. To improve the system and ensure comprehensive protection for victims of workplace sexual harassment, the Legislative Yuan passed amendments to certain provisions of the Gender Equality in Employment Act (hereinafter the “Gender Equality Act”) in the end of July 2023, which took effect on 8 March 2024. The amendment focuses on three main areas to address the Gender Equality Act’s systematic deficiencies.

Establishes an external complaint channel for government intervention and increases employer obligations

The old law provided companies with the autonomy to decide how to handle and make a judgment on any incidents of workplace sexual harassment. The accusing party of an incident of sexual harassment had no direct channel to file a complaint with the regulatory authority. The regulatory authority only had the power to impose fines on employers for mishandling cases, it had no ability to conduct a substantive investigation or order employers to take action against the party accused of sexual harassment. This led to situations where if employers were unwilling or unable to substantively handle cases, the regulatory authority had no room to intervene. To address this problem, the amendment introduces a mechanism to directly complain to the local regulatory authority when (1) the party accused of sexual harassment is the highest-ranking official or employer, (2) when the employer fails to fulfill its obligations or when the accusing party disagrees with the investigation or disciplinary action taken against the accused employer, then the accusing party may appeal to the local authority. The local regulatory authority will conduct a substantive investigation and may impose fines on the highest-ranking official or instruct an employer to take necessary actions.[1]

In addition to establishing an external complaint channel to limit the degree of autonomy employers have in handling incidents of workplace sexual harassment, the amendment explicitly defines the obligations that employers must fulfill both during normal business operations and when dealing with incidents of sexual harassment. This substantively limits the autonomy employers have in handling incidents of sexual harassment. Regarding the measures that employers implement during normal business operations to prevent incidents of sexual harassment, the Ministry of Labor introduced relevant guidelines on January 17, 2024.[2] As for how to handle incidents of sexual harassment, after the amendment, even if the victim does not file a complaint, when an employer becomes aware of a suspected incident of sexual harassment, they must proactively clarify the relevant facts, adjust the work or location of the employee as necessary, and assist in filing a complaint. Also, they must provide counseling or medical resources to the victim according to their wishes. After the accusing party files a complaint, in addition to the measures required by the old law to immediately take measures to prevent the accusing party from being harassed again, the employer must investigate the sexual harassment incident and appropriately discipline or handle the perpetrator, and also provide or refer the accusing party to counseling or medical resources, all of which are explicitly stated in the amendment to the Gender Equality Act.

Increased liability for incidents of sexual harassment committed by the highest-ranking official or employer

As mentioned above, the old law gave companies the autonomy to decide how to handle an incident of workplace sexual harassment. But the drafters of the old law did not consider the nature of unequal workplace power hierarchies. The result was that the old law provided inadequate protection when there was a power imbalance between those involved in an incident of workplace sexual harassment. Therefore, the amendment specifically distinguishes between “abuse of power sexual harassment,” where the harassment is committed by someone who has authority over the victim, and “harassment by the highest-ranking official or employer,” where the harassment is committed by the representative of a group or organization, or their status is equal to that of a representative. The difference is, in a serious incident of abuse of power sexual harassment, the accusing party may request to adjust or terminate the accused party’s position during the period of investigation (while suspended, salary may be withheld pending the outcome of the investigation) [3]. Where the harassment is committed by the highest-ranking official or employer, in addition to the accusing party being able to request an adjustment to their own work duties during the regulatory authority’s investigation as a temporary protection measure, the amendment also increases the civil liability of a party accused of committing an abuse of power sexual harassment, permitting the accusing party to request the court to award punitive damages that are one to three times the statutory amount of damages. For a highest-ranking official or employer that is accused of committing an incident of sexual harassment, the amendment also increases civil liability, providing for punitive damages to be increased by three to five times. Furthermore, provisions have been added for administrative fines ranging from TWD 10,000 to TWD 1,000,000 to be issued for individuals recognized by the local regulatory authority as engaging in harassment as the highest-ranking person or employer.

Clearer time limits and procedures for making complaints

Under the old law, there was no time limit in theory for when a victim could file a complaint with an employer about an incident of workplace sexual harassment. Employers were required to accept complaints submitted within any time period. However, in practice, if a victim filed a complaint more than three years after the incident occurred, even if the employer did not handle the complaint, the regulatory authority could not penalize the employer for failing to fulfill their obligation due to the three-year statute of limitations under Article 27 of the Administrative Penalty Act. Therefore, the amendment explicitly states the time limit for filing complaints with the regulatory authority and distinguishes between whether the accused party holds a position of power. For those without a position of power, complaints filed more than two years after the harassment has been noticed or more than five years after the incident has finished will not be accepted. For those with a position of power, complaints filed more than three years after becoming aware of the harassment or more than seven years after the incident finished will not be accepted. In addition, for complaints filed by minors, there is a special statute of limitations providing that minors can make a complaint up to three years after the day they reach adulthood. When the accused party is the highest-ranking official or the employer, the complainant may file a complaint within one year of leaving employment, but complaints filed more than ten years after the incident occurred will not be accepted.

This is a translation of the original article in Chinese, which can be found here.

For more information on employment and human resource matters in Taiwan, please contact Christine Chen at cchen@winklerpartners.com

Written on 5 March 2024 by Christine Chen and Tzu-Hsuan Chuang.

Translated on 8 March 2024 by George Bobyk