[Legal Life] Ch24 I'm Interviewing You, You Can't Discriminate

Three years later, Tu P'ing completed his protective custody, determined to leave his past behind and start a new life. By a twist of fate, Tu P'ing applied for a sales position at that chicken essence shop. The boss took a liking to him upon seeing his sincere demeanor. Just then, the shop television happened to broadcast news about Tu P'ing's former associates brawling. Watching the screen, Tu P'ing could not help but mutter under his breath, "A-lung, cut through the middle."

The boss's suspicions were aroused, and he demanded that Tu P'ing provide detailed personal information, including whether he had any criminal record. Although Tu P'ing was extremely reluctant and expressed his refusal to the boss, under the boss's insistence, the sincere Tu P'ing honestly recorded his past record. Unexpectedly, the chicken essence shop owner was a true elite class snob who considered Tu P'ing's past to be utterly disgraceful and unworthy of being a salesperson at this chicken essence shop......

What is Employment Discrimination?

In general job postings, employers frequently impose conditions or requirements on job applicants—such as demanding fluent English, restricting applicants to those under 30 years old, requiring work experience, limiting applications to females, or expecting a pleasant appearance, among countless others (which is why Ang Lee and Wu Pao-chun would be...).

Among these, some restrictions stem from the specific characteristics or demands of a job, while others originate from an employer's aversion or preference for certain traits. When an employer decides whether to hire, promote, reward, discipline, or terminate an employee by considering specific factors unrelated to job performance or ability—such as sex, religion, or marital status—it constitutes employment discrimination.

Types of Employment Discrimination

It should first be noted that discrimination may manifest not only as direct discrimination but may also be concealed beneath seemingly neutral phrasing, known as indirect discrimination. Both direct and indirect discrimination are prohibited under the Employment Service Act.

Direct discrimination occurs, for example, when an employer explicitly restricts job applications in a recruitment advertisement to young women. When unreasonable differential treatment can be identified through superficial observation, it is called direct discrimination (or perhaps appointing a US president); whereas indirect discrimination occurs when restrictions or measures implemented by the employer appear neutral and universally applicable on the surface, but in practice almost exclusively restrict a specific group. This is also a form of discrimination—for example, a rule prohibiting all employees from wearing stockings, with violators facing penalties affecting their annual bonuses. On the surface, this rule appears universally applicable to all employees without discrimination; however, in reality, those who wear stockings are predominantly women, thereby constituting indirect discrimination based on sex.

Article 5, Paragraph 1 of the Employment Service Act sets forth the categories of employment discrimination, prohibiting discrimination based on: race, social class, language, ideology, religion, political party, ancestral origin, place of birth, sex, sexual orientation, age, marital status, appearance, facial features, physical or mental disability, or past union membership.

Are All Restrictions Prohibited? What Defenses Do Employers Have?

However, not all restrictions imposed by employers are illegal. Under certain circumstances, employer-imposed restrictions may still be lawful, meaning employers may assert a bona fide occupational qualification defense, an operational necessity defense, or an affirmative action defense.

A bona fide occupational qualification defense applies when the differential treatment implemented by the employer is necessary for that profession. For example, recruiting exclusively male applicants for male underwear models does not violate employment discrimination regulations. An operational necessity defense applies when an employer argues that its restrictions are reasonably necessary for its business operations, thus complying with employment discrimination rules; for instance, while vision requirements might constitute indirect discrimination based on age, if an employer can prove that the vision requirement is related to ensuring the smooth execution of work and is reasonably necessary for operations, it can be established (though I can't think of an example at the moment...). Furthermore, since the purpose of prohibiting employment discrimination is to protect specific groups that have historically suffered discrimination within social and historical contexts and find themselves in structurally disadvantaged positions, if an employer instead actively favors such disadvantaged groups, it naturally does not violate employment discrimination protections. For example, guaranteeing a certain employment quota for persons with disabilities involves differential treatment, but the employer may invoke the affirmative action defense to be exempt from liability.

What Are the Legal Consequences of Violating Employment Discrimination Laws?

According to Article 6, Paragraph 4, Subparagraph 1 of the Employment Service Act and Article 2 of the Enforcement Rules of the Employment Service Act, municipal and county (city) competent authorities shall establish employment discrimination review committees. Workers who experience employment discrimination may file a complaint with them.

If the committee determines that employment discrimination has occurred, the employer shall be fined between NT$300,000 and NT$1,500,000 pursuant to Article 65 of the Employment Service Act.

However, regarding the private law relationship between the worker and the employer, the worker must separately file a lawsuit under the Code of Civil Procedure for relief and cannot obtain such relief through the aforementioned complaint procedure.
 

Can Employers Require Workers to Provide a Criminal Record?

A criminal record falls under private personal life information and privacy data; employers may not compel its provision against the worker's will.

Article 1-1 of the Enforcement Rules of the Employment Service Act contains provisions regarding personal privacy information, explicitly stating that credit records, criminal records, and pregnancy plans constitute privacy data concerning personal life. Pursuant to Article 5, Paragraph 2 of the Employment Service Act, employers recruiting or hiring employees shall not violate the wishes of job applicants or employees by demanding the provision of privacy data not required for employment.

Moreover, pursuant to Articles 6 and 19 of the Personal Data Protection Act, employers are prohibited from collecting personal data concerning a worker's medical records, healthcare, genetics, sex life, health examinations, and criminal history, except under exceptions such as the data subject's consent.

Therefore, regarding personal privacy information such as criminal records, if it is not required for employment, employers may not demand that workers provide it against their will.

Employers Who Violate This Will Be Penalized Pursuant to Article 67 of the Employment Service Act

If an employer violates Article 5, Paragraph 2 of the Employment Service Act by demanding individuals to provide privacy data that exceeds employment requirements, they may be fined between NT$60,000 and NT$300,000 pursuant to Article 67 of the same Act.

Relevant Legal Provisions

Article 5 of the Employment Service Act
"To guarantee equal national employment opportunities, employers shall not discriminate against job applicants or employed workers on the basis of race, social class, language, ideology, religion, political party, ancestral origin, place of birth, sex, sexual orientation, age, marital status, appearance, facial features, physical or mental disability, or past union membership; where other laws provide otherwise, those provisions shall govern.
Employers recruiting or hiring employees shall not engage in any of the following conduct: 
1. Making false advertisements or displays. 
2. Violating the will of job applicants or employees by withholding their national identity cards, work credentials, or other evidentiary documents, or demanding the provision of privacy data not required for employment. 
3. Detaining the property of job applicants or employees or collecting security deposits. 
4. Assigning job applicants or employees to engage in work that violates public order or good morals. 
5. Providing false data or health examination specimens in handling applications for permits, recruitment, introduction, or management regarding the employment of foreign nationals."

Article 65, Paragraph 1 of the Employment Service Act
"A person who violates Article 5, Paragraph 1, Paragraph 2, Subparagraph 1, Subparagraph 4, or Subparagraph 5, Article 34, Paragraph 2, Article 40, Subparagraph 2, or Subparagraph 7 to Subparagraph 9 shall be fined not less than NT$300,000 and not more than NT$1,500,000."

Article 67, Paragraph 1 of the Employment Service Act
"A person who violates Article 5, Paragraph 2, Subparagraph 2 or Subparagraph 3, Article 10, Article 36, Paragraph 1, Article 37, Article 39, Article 40, Paragraph 1, Subparagraph 1, Subparagraph 3, Subparagraph 4, Subparagraph 6, or Subparagraph 10 to Subparagraph 17, Article 57, Subparagraph 5, Subparagraph 8, or Subparagraph 9, or Article 62, Paragraph 2 shall be fined not less than NT$60,000 and not more than NT$300,000."

Article 1-1 of the Enforcement Rules of the Employment Service Act
"Privacy data prescribed in Article 5, Paragraph 2, Subparagraph 2 of this Act includes the following categories: 1. Physiological information: genetic testing, drug testing, medical testing, HIV testing, intelligence testing, or fingerprints, etc. 2. Psychological information: psychological testing, honesty testing, or lie detector tests, etc.
3. Personal life information: credit records, criminal records, pregnancy plans, or background checks, etc. When an employer requests a job applicant or employee to provide privacy data, they shall respect the rights and interests of the data subject, shall not exceed the necessary scope for specific purposes such as economic demands or the maintenance of public interest, and shall maintain a justifiable and reasonable connection with the purpose."
Article 6 of the Personal Data Protection Act
"Personal data concerning medical records, healthcare, genetics, sex life, health examinations, and criminal history shall not be collected, processed, or utilized. However, this restriction shall not apply under any of the following circumstances: 
1. Where explicitly provided by law. 
2. Within the necessary scope for government agencies to execute statutory duties or non-government agencies to fulfill statutory obligations, provided that appropriate security maintenance measures are taken prior to or after the event. 
3. Personal data that has been made public by the data subject themselves or otherwise lawfully made public. 
4. Where necessary for government agencies or academic research institutions to conduct statistics or academic research for the purpose of medical care, public health, or crime prevention, provided that the data is processed by the provider or disclosed by the collector in a manner that makes it impossible to identify a specific data subject. 
5. Within the necessary scope to assist government agencies in executing statutory duties or non-government agencies in fulfilling statutory obligations, provided that appropriate security maintenance measures are taken prior to or after the event. 
6. With the written consent of the data subject. However, this shall not apply if it exceeds the necessary scope of the specific purpose, if other laws restrict collection, processing, or utilization based solely on the data subject's written consent, or if such consent violates the data subject's will. The collection, processing, or utilization of personal data pursuant to the preceding paragraph shall mutatis mutandis apply to Articles 8 and 9; furthermore, the written consent referred to in Subparagraph 6 of the preceding paragraph shall mutatis mutandis apply to Article 7, Paragraphs 1, 2, and 4, and shall be made in writing."

Article 19 of the Personal Data Protection Act
"The collection or processing of personal data by non-government agencies, excluding data prescribed in Article 6, Paragraph 1, shall have a specific purpose and meet one of the following conditions: 
1. Explicitly provided by law. 
2. Having a contractual or quasi-contractual relationship with the data subject, and appropriate security measures have been taken. 
3. Personal data that has been made public by the data subject themselves or otherwise lawfully made public. 
4. Where necessary for academic research institutions to conduct statistics or academic research for the public interest, provided that the data is processed by the provider or disclosed by the collector in a manner that makes it impossible to identify a specific data subject. 
5. Consent has been given by the data subject. 
6. Necessary for promoting public interest. 
7. Personal data obtained from generally accessible sources. However, this shall not apply where the data subject's prohibition of the processing or utilization of such data clearly outweighs a more significant interest worthy of protection. 
8. No infringement upon the rights and interests of the data subject. 
Where a collector or processor knows or is notified by the data subject that the processing or utilization of such data is prohibited pursuant to the proviso of Subparagraph 7 of the preceding paragraph, it shall proactively or upon the data subject's request delete, cease processing, or cease utilizing such personal data."