The #Metoo movement has increased people’s awareness of sexual harassment in the workplace. By law, companies have an obligation to create safe work environments and prevent sexual harassment from happening.
When employees report claims of sexual harassment, the objectives for the company are to a) determine whether sexual harassment occurred, b) protect the individual(s), and c) prevent it from happening again, all while maintaining a positive working environment. This sounds daunting, but can easily be accomplished by following some simple rules.
We list the following frequent asked questions and answers addressing issues which concern all employers.
What is sexual harassment in the workplace?
Taiwan’s laws define sexual harassment in the workplace into two categories:
1. Unequal targeting of an employee of one gender including pranks, jokes, yelling or other offensive conduct
This includes making sexual requests, using verbal or physical conduct of a sexual nature or with the intent to discriminate based on gender, creating a hostile, intimidating, and offensive working environment that leads to a negative impact on the victim’s personal dignity or physical liberty; or affects job performance, education, training, services, plans, activities, or other normal habits.
2. Unequal treatment of an employee because of the employee’s gender, including unequal discipline
This includes instances where an employer explicitly or implicitly makes a sexual request toward an employee or a job applicant, uses verbal or physical conduct of a sexual nature or with the intent to discriminate based on gender as an exchange for the establishment, continuance, modification of a labor contract or as a condition to their placement, assignment, compensation, evaluation, promotion, demotion, award and discipline.
Companies, local labor regulators and the courts will determine whether the behavior at issue constitutes sexual harassment based on the totality of the circumstances, including the facts of the incident, the work environment, the relationship between the parties, the accused’s testimony and conduct, and the victim’s perception of the incident.
How to prevent sexual harassment?
By law, companies have an obligation to prevent sexual harassment. Posting a sexual harassment policy in the workplace is one option. Companies with more than 30 employees are statutorily required to announce and post a sexual harassment prevention, correction, complaint, and punishment policy.
In addition, employees should be given sufficient training on sexual harassment prevention and policies. If an employee has suffered or witnessed sexual harassment they should feel encouraged to document it and report it to the company. Fostering an open and transparent work environment can help ensure that employees feel safe and that their concerns are being listened to. Similarly, employees should be informed that the company will take necessary measures to combat harassment and that they risk punitive measures including the possibility that they will lose their job. Employees should also know that employers have an obligation to assist victims file complaints with the police. Sexual assault and other serious offenses carry criminal liability.
What should companies do when they receive a complaint?
Once the company becomes aware of a sexual harassment complaint, it is required to conduct an investigation and implement immediate and effective corrective and remedial measures. The measures include:
(i) trying by all available means to protect the victim’s rights and privacy;
(ii) strengthening maintenance and improvement of the safety and security of the workplace;
(iii) setting up a Sexual Harassment Grievance Committee (“Committee”) to investigate the complaint and make a decision within two months after the complaint is lodged (this can be extended for one more month if necessary); and
(iv) adopting other preventive and improvement measures.
Taiwan’s laws on sexual harassment at work do not have a statute of limitations for complaints. Any complaint should be addressed even though it might refer to conduct from several years ago.
How should the companies conduct an investigation and make a decision?
The key principle is to keep the matter highly confidential. Except for the victim(s) and the accused, the company should carefully select other employees as witnesses to sit in on any interviews held. In addition, all Committee members, the victim(s), the accused, and the interviewees should be informed that they have an obligation to keep all information and discussions confidential and private. Signing a non-disclosure statement would therefore be good practice. Interview records and/or meeting minutes are important documentation to serve as evidence if needed. After the investigation, the Committee should make a written decision including its grounds based on the findings of the investigation.
For confidentiality purposes, different versions of the decision can be prepared for the victim(s) and the accused. The company should give the victim(s) and the accused written notice of the conclusions of the investigation. Both the victims and the accused can file written appeals within a specific period (e.g. twenty days) from the date of receiving the decision if they are not satisfied with it. The Committee should then make a decision on whether to conclude the case or not. After this, no more complaints can be lodged with respect to the same incident.
Can companies terminate employees found to have conducted sexual harassment?
If through the investigation process it is found that the accused’s behavior constitutes sexual harassment, the company can terminate them as this constitutes a serious violation of the work rules. A termination on these grounds must be carried out within 30 days of the completion of an investigation. Advance notice and severance pay are not required in cases of sexual harassment.
Due to their unpleasant nature, sexual harassment complaints are not something many companies will want to deal with. Ignoring the problem however will not make it go away, and will likely make it worse. It is better for companies to be prepared before a claim is brought to their attention. We suggest companies review and check whether their current sexual harassment prevention policy is compliant with relevant laws, that all employees are aware of it, have access to it, and that related training is provided to all staff.
When sexual harassment complaints are raised, it is better for companies to consult with their legal team who will be able to advise on the process and the next steps, prepare necessary documents, review evidence, and even take part in the investigation. Doing so can help the company avoid violating the law and prevent potential legal disputes in the event that a sexual harassment complaint was handled incorrectly.
For more information on employment matters in Taiwan, contact Christine Chen at firstname.lastname@example.org.Written May 7, 2020 By Christine Chen, Hsin-Hsin Cheng.