Economic Daily News / Howard Shiu
The recent high-profile sexual harassment cases in Taiwan have raised concerns and triggered discussions about the issue of sexual harassment in the workplace. In fact, among the various types of employee misconduct, sexual harassment has been mostly addressed in Taiwanese law. Taiwan’s Occupational Safety and Health Act and the Act of Gender Equality in Employment both require employers to provide a friendly and safe working environment, and provide detailed regulations for the process of investigations of sexual harassment complaints. Employers are expected to treat all sexual harassment complaints with great seriousness and handle the cases in a fair manner.
In terms of the pursuit of gender equality, an emphasis on the prevention of sexual harassment and an awareness of the inherent rights of all genders, Taiwan is proud be in the top tier among Asian countries. The core issue of sexual harassment is not sex. It’s about power. In practice, almost all sexual harassment cases being investigated involve power hierarchies, i.e., superior v. subordinate. However, in response to an increase in the number of stalker-type harassment between peer coworkers, the Stalking and Harassment Prevention Act has come into play.
Most sexual harassment cases involve a superior’s misconduct towards a subordinate. In these cases, the harasser is confident that their victim will shut their mouth and tell no one. So when an internal investigation starts, the responsible manager will be under lots of pressure, especially when the alleged victimizer holds a high-ranking position in the company, such as someone at the level of general manager. This situation makes the whole investigation process complicated and sensitive.
One of the characteristics of a sexual complaint case is that it always involves the most private part of a person’s life and it is almost impossible to have a win-win outcome. Regardless of the results of the sexual harassment investigations, the party receiving an adverse decision will usually continue their dispute, and may allege that management has failed to act as an impartial party in the process.
Investigators appointed by the company may start as a third party and end up becoming “the accused” in these cases. If there is any favoritism or negligence during the investigation process, the investigators may get themselves involved in never-ending legal disputes. With this in mind, the persons responsible for handling and investigating a sexual harassment case must take the case with great seriousness and handle the issues in an impartial manner. While protecting the victim and the alleged victimizer (in a small number of cases, the allegation is false and malicious) is important, they should not forget to protect themselves, which is never less important. Never sacrifice yourself by taking sides with one of the parties in a case. The best policy is not to make any assumption from the start. Instead, investigate the event and try to verify the claim and determine the fact before making a decision on the alleged misconduct.
Should sexual harassment investigations be conducted by internal staff or an external party? It depends. In cases where the persons being investigated are those in the senior management or even top executives, having an external party to conduct investigations to ensure impartiality is advised. The point is that favoritism should always be avoided when a team of investigators is formed.
There are countless types of employee misconduct at work. The kind of misconduct with a potentially worse consequence is sexual harassment. It is true that all proven misconduct should be condemned. However, in most sexual harassment cases, while the violation may result in punishment ranging between a minor and major demerit, not dismissal, the consequence for the victimizers could easily be worse than for those who have misappropriated tens of millions of dollars of corporate funds.
A person guilty of corruption may be able to start a new life after apologizing, acknowledging their mistake and making a compensation, but a sexual harassment offender, once their violation is determined, almost has no chance of redeeming themselves. Their victim would never want to stay in the same workplace with them. Leaving their jobs could be the only option. When the news of their violation spreads to other companies, the stigma of “sexual harassment offender” will travel with them wherever they go, meaning no other employer would want to offer a job to them. This is their “death penalty at work” — the worst kind of consequence.
In practice, the final determination made during the sexual harassment investigations would often make it impossible for the victim and the victimizer to continue to work under one roof. It is not rare that when one of the parties ends up leaving the company, they may decide to sue the employer. The responsible managers must act in a fair and impartial manner as much as possible during investigations to prevent or reduce the possibility of any potential disputes.
(This article is written by journalist Rui-zhi Jiang, based on the interview with Howard Shiu, partner of Baker McKenzie, attorneys-at-law).