A Study On Legal Regulation Of Sexual Harassment In The Workplace

Sexual harassment in the workplace is a serious, widespread and deep-rooted problem in countries around the world. The U.S. firstly recognized sexual harassment in the workplace as a situation of sex discrimination which is prohibited by Title VII of the Civil Rights Act of 1964. China's "Women's Rights and Interests Protection Law" also stipulates the prohibition of sexual harassment. As China consolidating its world factory status more and more, the male-dominated trend in the workplace becomes more significant. Therefore, women employees are declined to belong to the workplace vulnerable groups, who are vulnerable to sexual harassment from employers and their representatives, colleagues and the third-party. Sexual harassment in the workplace not only does physical and psychological harm for individual victims, but also undermines China's production capacity as the world factory. Therefore, in China, sexual harassment in the workplace should be concerned as a priority. Given China's current weak legislation on sexual harassment, this thesis mainly introduced insights of sexual harassment regulation by the United States Equal Employment Opportunity Commission and taking into account the sameness of the civil law legal culture root and of the workplace culture root, analyzed countermeasures in response to sexual harassment in the workplace of the Taiwan region if necessary.The thesis is divided into five parts.Part one "connotation analysis of sexual harassment in the workplace" was discussed from three aspects as sexual harassment, sexual harassment in the workplace and the mainland's definition of sexual harassment. While having no uniform standards, the definition of sexual harassment includes three characteristics as workplace related, performance of a variety and unwantedness, but directly endows to sexual harassment with qualities on sexual harassment in the workplace. The U.S. Equal Employment Opportunity Commission, in its 1980 guidelines, gave a clear definition of sexual harassment, and enlarged the application scope of the definition to the workplace. Since the definition does not limit sexual harassment to the opposite sexual harassment, there will be such special types of sexual harassment as bisexual harassment, same-sex sexual harassment. Sexual harassment in the common law was considered as sex discrimination, while in civil law as a violation of personal rights or of public order and good customs. Therefore, sexist speech in the workplace should be regulated. Definition on sexual harassment in the workplace of Taiwan Region, though following the nature of the United States definition, helps instruct China's legislation on the national level. Part two "type and criterion of sexual harassment in the workplace" discussed summations and elements of the two types as quid pro quo sexual harassment and hostile environment sexual harassment. Quid pro quo sexual harassment requires such objective elements as special identity of the infringer, existence of employment relationship, unwantedness of the charged acts and damage to work interests, and subjective element as intention. Hostile environment sexual harassment requires such objective elements as illegal acts that simultaneously meet dereliction of duty, coercive or offensive work environment, prevalence and seriousness, relationship to execution of duties and influence on work performance, and subjective element as negligence. This part is particularly deliberated by the collegial bench.Part three "employer liability of sexual harassment in the workplace" included three aspects as employers' preventive obligations and relief of liabilities, employers' liability types and employers' measures of prevention and treatment on sexual harassment. The employer's liability differs not only between quid pro quo sexual harassment and hostile environment sexual harassment, but also among liabilities on hostile environment sexual harassment. Employer's liability of this thesis possessed a special meaning when compared with vicarious liability assumed by an employer for his employee's tort.Part four "relief on victims of sexual harassment in the workplace" included three aspects as appealing system of victims, burden of proof and content of request. Among them, providing appealing procedures presided by different relief subjects, the appealing system ensures complaints from retaliation and guides victims to reasonable complaints. From a logical perspective, subjects to provide relief for victims should include employers. However, employers endeavor to avoid liabilities, whose preventive measures have an inner system. Therefore, employers' liabilities are designed to be the above independent Part three.Part five "Chinese legal countermeasures on sexual harassment in the workplace" consisted of two aspects as countermeasures under department law and countermeasures in practice. The former mainly prescribed countermeasures to improve and apply from department laws as labor law, women protection law and civil law. The latter recommended a struggling way for labor administration, women union, labor union and court. This part reviewed the equity performance of legal countermeasures, from macro society perspectives adopted by the authority, not by the parties.