【Legal Life】Ch16 “Come on miss, a little flirting won’t hurt!” — When facing sexual harassment, do I just have to put up with it?

Chieh-yun was complaining to her good friend Yu-ling about how her order of chicken essence had inexplicably turned into clam essence. The two chatted happily, and in the course of their conversation Yu-ling mentioned her recent job hunt, complaining about being verbally sexually harassed by the boss during an interview for a part-time position.

Because Yu-ling has a good figure, throughout the interview the boss kept leering at her, and even asked whether she’d like to become his secretary instead—he likes someone with curves as his secretary, because it is more pleasing to the eye and makes work more spirited and motivating.

After the interview Yu-ling felt very uncomfortable. She had clearly gone to apply for a job, yet felt she had been sized up from head to toe, so she complained to Chieh-yun for a long while. Feeling quite indignant, she wanted to complain about this company’s boss, but did not know where to begin…

What is sexual harassment?

Under the Sexual Harassment Prevention Act, “sexual harassment” refers to conduct—other than a sexual assault crime—carried out against another person’s will and related to sex or gender, which, if it falls into one of the following situations, constitutes sexual harassment. The first is so-called “quid pro quo sexual harassment,” meaning that another person’s submission to or rejection of such conduct is made a condition for gaining or losing related rights or interests—in short, using an exchange of interests as a condition, making the person feel uncomfortable or violated. For example, a counter salesperson sees that a female customer is stunningly beautiful and uses the opportunity to hit on her, offering to give her products for free if she will date him—this may constitute quid pro quo sexual harassment.

The second is displaying words, pictures, sounds or images, or using discriminatory or insulting speech and conduct, that damages another person’s dignity; or conduct that causes a person to feel fear, hostility or offense, or that affects another person’s normal life—such conduct also constitutes sexual harassment. For example, threatening a victim to provide sexual services or else suffer harm; calling someone “flat-chested,” “flat as a board,” “sissy,” “tomboy,” and so on; telling dirty jokes that mock a particular sex; using words to tease another person’s sexual characteristics; taking verbal advantage of someone’s body; or deliberately touching specific parts of another person’s body—these can all constitute sexual harassment.

A sexual harassment incident is judged on the concrete facts as a whole—the background and environment in which it occurred, the relationship between the parties, the perpetrator’s words and conduct, and the other party’s perception—rather than being judged on a single itemized word or act. Therefore, if a dirty joke makes someone uncomfortable and is enough to affect their dignity or to create a hostile or offensive environment, it may constitute sexual harassment. However, in practice the courts are still very cautious in finding sexual harassment; whether a case is established still depends on a combined consideration of the victim’s subjective perception and an objective reasonableness standard, assessed case by case. Thus the victim must subjectively feel uncomfortable for it to possibly be established.

If you encounter sexual harassment in the workplace, the applicable law changes to the “Gender Equality in Employment Act”; if you encounter sexual harassment on campus, then the “Gender Equity Education Act” applies. In fact, these laws’ provisions on sexual harassment are much the same as the Sexual Harassment Prevention Act; they are merely slightly adjusted for different legal relationships or particular settings. For instance, under the Gender Equality in Employment Act, sexual harassment means that, while an employee is performing duties, any person subjects them to sexual requests, sexually suggestive or gender-discriminatory speech or conduct, thereby creating a hostile, intimidating or offensive working environment that infringes or interferes with their dignity, personal freedom or work performance; or an employer makes explicit or implicit sexual requests, or sexually suggestive or gender-discriminatory speech or conduct, toward an employee or job applicant as a condition for the formation, continuation or modification of the labor contract. This act merely adds terms such as “employee” and “workplace” to make its application more precise. Different acts also have different provisions, penalties or procedures. The application of the different laws to different situations can be summarized in the table below:

Situation	Applicable law
Workplace sexual harassment	Gender Equality in Employment Act
Campus sexual harassment	Gender Equity Education Act
Other sexual harassment	Sexual Harassment Prevention Act

What should you do if you encounter sexual harassment

1. Stay calm and gather evidence first
   First of all, be sure to stay calm, then gather the relevant evidence—for example, documentary evidence, audio or video recordings sufficient to prove that the other party once engaged in sexual harassment toward you, or what the other party said or wrote. Preserve whatever evidence can be kept, and photograph whatever can be photographed. If there are witnesses, you can also ask them to recall whether they saw you being sexually harassed at the time; you may record your conversation with them, and if necessary ask the witness to come forward and help you testify. Only with ample evidence can you stand on firm ground.
   
   
2. Actively seek help: demand handling or an apology from the agency or unit to which the perpetrator belongs
   If an ordinary person encounters sexual harassment, they may demand that the agency or unit to which the perpetrator belongs launch an investigation and handle the matter. If that agency or unit fails to take responsibility, the victim may file a complaint with the municipal or county/city government where the perpetrator’s unit is located, and the government agency will then urge that unit to launch an investigation; if it fails to investigate, it may be fined between NT$10,000 and NT$100,000. Moreover, if the competent authority ultimately confirms that sexual harassment occurred, it may also fine the perpetrator between NT$10,000 and NT$100,000.
   
   If the sexual harassment occurs in the workplace, it is recommended that the employee first report to the employer, i.e., your supervisor, and request assistance; if that is ineffective, or if the perpetrator is the supervisor, then you may file a complaint with the local competent authority, which will begin an investigation and make a decision. Depending on the circumstances, the employer may be fined anywhere from NT$20,000 to NT$500,000. Note, however, that to apply to the competent authority, the complaint and related materials must be forwarded to the competent authority of the municipality or county/city where it is located in order to comply with the legal procedure. The competent authority must transfer the case to the local competent authority within seven days, and the local authority must launch an investigation within seven days.
   
   If you encounter sexual harassment between classmates at school, still first report it to a teacher and ask the teacher to handle it. The school will have a corresponding process for dealing with it. Never feel wronged and swallow it yourself—be sure to speak up.
   
   In addition to the administrative liability mentioned above, a person who sexually harasses another may also bear extra civil liability and be liable for damages. The victim may seek restoration of reputation or a corresponding sum of compensation for the mental harm suffered.
   
   Workplace sexual harassment
   Gender Equality in Employment Act
   File a complaint with the company’s supervisor or the local competent authority; the employer must launch an investigation, and if it fails to do so it may be fined by the competent authority; the competent authority may launch an investigation and fine the company or the employer for its conduct.
   
   Campus sexual harassment
   Gender Equity Education Act
   Within three days of receiving the complaint the school must set up a Gender Equality Education Committee to launch an investigation, and must produce a report within two months.
   
   Other sexual harassment
   Sexual Harassment Prevention Act
   Within one year after the incident, the victim of a sexual harassment incident may file a complaint with the agency, military unit, school, institution or employer to which the perpetrator belongs, or with the municipal or county/city competent authority. The municipal or county/city competent authority shall fine a person who sexually harasses another between NT$10,000 and NT$100,000. If an agency fails to prevent the continued occurrence of sexual harassment, the municipal or county/city competent authority shall fine it between NT$10,000 and NT$100,000.
   
   

References

• Gender Equity Education Act
• Gender Equality in Employment Act
• Sexual Harassment Prevention Act
  
  

Other channels where you can seek help

• Women and Children Protection Hotline: 113
• Modern Women’s Foundation: (02) 2391-7133
• Workplace and campus sexual harassment can be reported to each city/county Labor Bureau or the school counseling office
• Sexual Harassment Guide / Awakening Foundation