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Legislature Passes Amendments to Three Anti-Sexual Harassment Laws
Legislature Passes Amendmentsto Three Anti-Sexual Harassment Laws
In response to the recent reignition of MeToo movement in Taiwan, the legislature passed the amendments to the Gender Equity Education Act on July 28, 2023 and the the amendments to the Act of Gender Equality in Employment and the Sexual Harassment Prevention Act, respectively, on July 31, 2023. The key points of the amendments, as presented by the relevant ministries, are summarized below but the exact language and details of the amendments are still subject to final version announced by the President.
I. Key Amendments to the Act of Gender Equality in Employment
(I) Adding Definition of “Sexual Harassment Involving Abuse of Power” and Expanding the Scope of Gender Equality Laws
1. This round of amendments defines the term, “Sexual Harassment Involving Abuse of Power”, which refers to the use of power or opportunity to sexually harass a person who is subject to the perpetrator’s direction or supervision in connection with employment, job application, or performance of job duties.
2. In addition, where an employee is subjected to sexual harassment by someone working for the same company, someone working for a different company but is working with or has business dealings with the employee, or by the head or employer of the company, even where the incident occurs during “non-working hours”, the gender equality laws shall still apply.
(II) Strengthening Employers’ Sexual Harassment Awareness and Responsibility for Implementing Prevention and Disciplinary Measures
1. Once becoming aware of a sexual harassment incident, the employer must take action to address the incident regardless of whether there is a complainant or not.
This round of amendment distinguishes between situations in which an employer learns of a sexual harassment incident “as a result of a complaint” or “not as a result of a complaint”, and provides for “effective corrective and remedial measures” respectively.
2. Provisional measures may be taken by the employer before the investigation into a sexual harassment incident is concluded.
This round of amendments also adds that in cases where the alleged perpetrator is in a position of power and the offence is of a serious nature, the employer may take provisional actions such as suspending or adjusting the alleged perpetrator’s duties during the investigation. If, upon concluding the investigation, the employer determines that the harassment is of a serious nature, the employer may terminate the perpetrator’s employment contract without notice.
3. Companies with 10 to 29 employees are obligated to set up sexual harassment complaint channels.
Before this round of amendments, only companies with 30 or more employees are required to establish sexual harassment prevention measures and complaint and penalty guidelines. After this round of amendments, employers with 10 or more employees but less than 30 employees are required to establish channels for handling sexual harassment complaints and are obligated to make public the information on such channels.
4. Employers must notify the local authority immediately upon receiving a sexual harassment complaint.
Employers must notify the local authority immediately when they receive a complaint from the victim. Where a complaint has been determined by the employer to involve a sexual harassment incident, the employer must also notify the local authority of the findings of the investigation into the sexual harassment complaint.
(III)Establishment of an external grievance channel to allow intervention by public authorities.
This round of amendments adds that in cases where the alleged perpetrator is the head or the employer of the company, or disputes the findings of the investigation or the disciplinary action taken by the employer, the alleged perpetrator may file a complaint directly with the local authority.
(IV)Adding special time limit for lodging a complaint
Where the alleged perpetrator of sexual harassment is the head of the company, the complaint may be filed within one year after the complainant’s separation from the company. Where the sexual harassment incident occurred when the victim was a minor, the complaint can be lodged within three years after the victim reaching the age of majority.
(V) Adding punitive civil damages and amendment of penalty-related provisions
1. Punitive civil damages
Where the perpetrator is a person who abuses his/her position of power when committing the sexual harassment, the court may, depending on the severity of the offense, award punitive damages ranging from one to three times the amount of the injuries consequently suffered.
Where the perpetrator is the head of the company, the court may award punitive damages ranging from three to five times the amount of the injuries consequently suffered at its discretion.
2. Penalty-related amendments are summarized as follows:
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Non-Compliance
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Among of Penalty
(New Taiwan Dollars) |
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Failure to fulfill obligations to implement preventive and corrective measures
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NT$20,000 ~NT$1,000,000
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Failure to take necessary action within the required time limit
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Failure of companies with 30 employees or more to comply with preventive and corrective requirements
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NT$20,000 ~NT$300,000
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Failure of company with 10 to 29 employees to establish complaint channels and to rectify such non-compliance by the required time limit
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NT$10,000 ~ NT$100,000
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Failure to comply with a complainant’s request to adjust his/her job duties or work arrangement when his/her complaint against the head of the company is under investigation
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NT$10,000 ~ NT$50,000
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Where the head of the company has been determined by the local authority as having committed sexual harassment
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NT$10,000 ~NT$1,000,000
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Failure of the alleged perpetrator to cooperate with the investigation
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NT$10,000 ~ NT$50,000
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II. Key Amendments to the Sexual Harassment Prevention Act
(I) Increasing Venue Owners’ Obligation to Implement Preventive and Corrective Measures
Venue owners are required to implement specific and effective corrective and remedial measures, including ensuring the safety and privacy of victims, assisting victims to file complaints and preserve relevant evidence, calling the police to deal with the sexual harassment incident where necessary, and reviewing and improving the security of the public spaces under their management. Violators may be fined up to NT$200,000.
(II) Addition a special chapter on victim protection
It is stipulated that any person who becomes aware of or possesses any information that could be used to identify the victim should keep the information confidential, and violators are subject to a fine of up to NT$600,000. In addition, during the process of investigation, the relevant authorities must take the initiative to provide or refer victims to relevant victim protection services, depending on their physical and mental state. It is also stipulated that for sexual harassment involving the abuse of power, punitive damages equal to one to three times of the fine may be imposed.
(III) Establishing a credible complaint investigation procedure
The time limit for lodging a complaint of general sexual harassment was extended from one year to two years; the time limit for sexual harassment involving the abuse of power is extended to three years. Where the victim was a minor at the time of the sexual harassment, he/she may file a complaint within three years after reaching the age of majority.
(IV) Effective curbing of sexual harassment involving abuse of power by imposing stringent penalties
In order to deter the act of sexual harassment by a person in a position of power, a fine of up to NT600,000 has been added to the administrative liability of a person who engages in sexual harassment by abusing his/her position of power; in terms of criminal liability, the penalty may be increased by up to one-half.
III. Key Amendments to the Gender Equity Education Act
(I) Expansion of Scope
This round of amendments adds military schools, preparatory schools and police academies at all levels, as well as juvenile correctional facilities to the scope of the Gender Equity Education Act.
(II) Enhancing student protection measures
This round of amendments adds that when the statutory representative/guardian of the person concerned is unable or difficult to exercise parental authority or guardianship, the “de facto caregiver” may also assist the person in advocating for his/her rights and interests.
(III) Refined investigation and handling mechanism
1. When the Gender Equity Education Committee of the school or the competent authority is investigating a gender incident on campus, some or all of the members of the investigation team may be external personnel. Where the perpetrator is a principal, teacher, or staff member of the school, all members of the investigation team shall be external personnel.
2. Where the perpetrator is the current or former principal of the school, the Gender Equity Committee established by the competent authority shall handle the investigation. Where the Gender Equity Committee determines that the offence is of a severe nature, it may adjust or suspend the duties of the principal.
(IV) Punitive damages may be claimed.
Where the perpetrator is a faculty or staff member, the court may award punitive damages ranging from double to triple the amount of the injuries consequently suffered; where the perpetrator is the school principal, the court may award punitive damages ranging from triple to quintuple the amount of the injuries consequently suffered.
Lee and Li has a Labor Practice Group that can provide consultation and services on various gender equality issues and sexual harassment prevention measures. If you have any questions about this round of amendments to the Act of Gender Equality in Employment or other labor laws and regulations, please do not hesitate to contact us at any time.