In the workplace, sexual harassment incidents occur occasionally, but victims often feel helpless and bewildered when confronted with such violations. In such predicaments, victims endure not only the oppression from the perpetrator but may also face unfair treatment at work and significant psychological impacts. However, when subjected to such injustice, protecting one's rights is not an option but a necessary action. For their own safety and dignity, victims must be courageous to stand up and speak out against the injustice. Reporting to employers and demanding they fulfill the responsibilities assigned by law is a right that every workplace individual should possess. In the face of workplace sexual harassment, we should not choose silence, as silence is often seen as consent, allowing the abusive behavior to continue.

What is workplace sexual harassment?

Workplace sexual harassment, according to Article 12 of the Gender Equality in Employment Act (referred to here as the "Act"), includes the following two types:

1. Hostile Work Environment Harassment: When any person, during the execution of their duties, uses sexually demanding, sexually suggestive, or gender-discriminatory language or behavior that creates a hostile, intimidating, or offensive work environment, thus violating or interfering with an individual's personal dignity, personal freedom, or work performance.
2. Quid Pro Quo Harassment: When an employer makes explicit or implied sexual demands, sexually suggestive, or gender-discriminatory statements or behaviors towards an employee or job applicant as a condition for the establishment, continuation, modification, or terms of employment contracts, including work allocation, compensation, evaluation, promotion, demotion, or rewards and penalties.

Employer's Responsibilities

When an employee (the harassed) encounters a situation of sexual harassment in the workplace, the first step is to notify the employer and request their assistance in addressing the situation. But what duties should an employer fulfill upon becoming aware of the sexual harassment?

According to Article 13 of the Gender Equality in Employment Act,when an employer becomes aware of instances of sexual harassment, they are required to take immediate and effective corrective and remedial measures. If the victim and the perpetrator belong to different business units but have a common working or business relationship, the employer of the perpetrator is also obligated to act similarly.

Immediate and Effective Corrective and Remedial Measures

The concept of "immediate and effective corrective and remedial measures" depends on how the employer becomes aware of the harassment. Here is an overview based on the employer's knowledge:

According to Article 13, Paragraph 2 of the Gender Equality in Employment Act，when an employer becomes aware of a situation of sexual harassment, they must take immediate and effective corrective and remedial measures. The goal is to provide employees with a work environment free from sexual harassment to protect their personal dignity, personal freedom, and work performance. Immediate and effective corrective actions are not based solely on the subjective feelings of those harassed but require that schools, groups, or business units handle sexual harassment complaints with a cautious attitude. They must empathetically and proactively care for the affected individuals, activate their established mechanisms, and take appropriate measures to prevent the victim from remaining in a hostile, intimidating, or offensive work environment, thereby complying with the regulation.

Employer’s Liability for Damages

According to Articles 28、and 29 of the Gender Equality in Employment Act，if an employee or job seeker suffers damage due to the employer's obligations mentioned above, they can claim compensation for non-pecuniary damages (i.e., emotional distress compensation) in an amount deemed appropriate. Additionally, if their reputation has been harmed, they may seek suitable remedies to restore it. However, it should be noted that the right to claim such damages expires if not exercised within two years from when the claimant becomes aware of the damage and the liable party. If over ten years have passed since the occurrence of the sexual harassment or violation of the respective regulations, the right to claim damages expires as well.

In summary, upon learning that an employee has been subjected to sexual harassment, employers must take immediate and effective corrective and remedial measures. This means that employers must handle the situation actively and fairly, empathetically care for the victim, and activate their established mechanisms to prevent the continuation of a hostile, intimidating, or offensive work environment. If the employer fails to fulfill these obligations, resulting in damage to the employee (the harassed), whether pecuniary or non-pecuniary, they may claim compensation from the employer.

Finally, in cases of workplace sexual harassment, due to the inequality in power, capability, and financial resources between the parties, employees (victims) may be reluctant to speak out for themselves, akin to a small shrimp facing a large whale. Furthermore, victims may also face additional verbal harm. At such times, it is recommended that victims should not face the situation alone due to workplace pressure, persuasive talks from employers, fear of job loss, and other reasons that might enable the perpetrator's misconduct. Instead, they should engage a professional lawyer to negotiate with the employer to secure their rightful benefits and maintain a safe working environment. In the face of workplace sexual harassment, we must not tolerate or ignore such behavior; instead, we should bravely speak out for ourselves!

Common Questions about Workplace Sexual Harassment

Q1.My boss asked me to reconcile or negotiate with the other party. Does this count as addressing the issue?

Practically, it is believed that if an employer hopes to resolve a dispute by having both parties compromise and requests the employee (the victim) to keep the peace, withdraw complaints, and attempt mediation, it does not constitute "immediate and effective corrective and remedial measures." If the employer knows that the employee (the victim) intends to report to the police and still does not actively assist in contacting the police unit, merely suggesting that they file a report themselves, this also does not qualify as "immediate and effective corrective and remedial measures."
(Reference:Supreme Administrative Court Decision No. 351 of 2016、Taipei High Administrative Court Decision No. 606 of 2016)

Q2.How much can I ask for in terms of emotional distress compensation (non-pecuniary damage)?

The amount of compensation for non-pecuniary damages is generally determined by the court based on the actual harm caused, the significant impact on the victim's personality rights, the status of the victim, and the economic situation of the perpetrator. Therefore, the amount of compensation varies depending on the circumstances of each case. The compensation for solace must be based on the infringement of personality rights that has caused emotional distress. Although the standards for granting such compensation differ from those for pecuniary damages, it is still possible to consider both parties' status, financial capacity, extent of harm, and other factors to determine an appropriate amount. It is advisable for affected parties to contact legal professionals such as lawyers to assist in evaluating the situation based on relevant information.

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