Taiwan’s Experience in The Enforcement of Pregnanacy Discrimination Laws: 1984 – 2004
Taiwan’s Experience in The Enforcement of Pregnanacy Discrimination Laws: 1984 – 2004
Chey-Nan Hsieh
Associate Professor
Institute of Business Administration
Yu-DaCollege of Business
E-mail:
Abstract
In Taiwan, major employment disputes involving employment discriminationare mainly pregnancy-relateddisputes. Pregnancy-workplace relationship is still problematic if we look at the unfair dismissal on pregnancy.Since 1984 maternity leave has been provided for female workers givingchildbirth under Labor Standards Law and in 1992, the Employment Service Law shall be applied to make it illegal ifa female workeris discriminated atwork for a reason relating to pregnancy.Gender Equality in Employment Law of 2001 further seals the loopholes in order to provide better protection against pregnancy discrimination.The Employment Discrimination Review Committees are competent agency available to theill-treated employees for making their complaint and have the power to place administrative sanction against the employers.Civil and Criminal litigations against pregnancy discrimination increase since the passage of Gender Equality in Employment Law of 2001.The employer should be liable for damage arising from his/heract of pregnancy discrimination. Employee might claim reasonable amounts of compensation even for such a damage that was not purely pecuniary losses. Reviewing the decisions of the committeesand the courts currently available suggests that pregnancy discrimination is not confined to particularindustries or occupations and that unfair dismissalsrelating to pregnancy donot only occur tofemale workers with shorter service and that most unfair dismissals take place prior to the maternityleave.
Keywords: Unfair dismissal, Maternity Leave, Gender Equity, Employment
Discrimination Review Committee, Covenant-not-to-be-Pregnant
I. Introduction
Female workers in Taiwanare participating in the workplace in greater numbers today than the year of 1984. In 1984, female workers comprised only 36.2% of all those in terms of paidemployment and in 2004 the percentage increased to 41.7%.[1] As for the participation rate, the rate of 1984 was 43.72% and the latest rate is 47.71% in 2004.The increasing trendis predicted to continue and has important implications for female workers and employers.A good portion ofthe increase shall be fromthe working mothersof childbearing age.[2]
However, pregnancy-workplace relationship in Taiwanis still problematic because daily employment practices may be inflexible to the needs of pregnantworkers.Pregnancy discrimination occurs and the discriminationis only against female worker.[3]In a female worker’s working life, the discrimination may arise from diverse factors of the working practice.[4]Unfortunately, the definition of pregnancy discrimination has not been explicitly stipulated in all the Taiwanese laws concerning the sexual discrimination section. Each pregnant worker may not experience pregnancy discrimination inthe same way. Pregnancy discriminationmay appear in various forms and happen in many instances. Different worker experiences different types of pregnancydiscrimination. In the United States of America, the Pregnancy Discrimination Act definespregnancy discrimination as the discrimination based on pregnancy, childbirth, and related medical conditions.[5]Under the Act, the discrimination "because of sex" or "on the basis of sex" shall include the discrimination occurred because of or on the basis of pregnancy, childbirth, or related medical conditions.[6] Women affected by pregnancy, childbirth, or related medical conditions should be treated equally as other non-pregnant workers.[7]By this definition, any employment discrimination based on pregnancy, childbirth, or related medical conditions is illegal.[8] We found that major employment disputes involving employment discrimination in TaipeiMunicipalCityare mainly pregnancy-relateddisputes and they are pregnancy discrimination under the definition.[9] As shown in Exhibit A, from October 1995 to October 2002, there were 103 pregnancy discrimination complaints out of a total of only 147 complaints registered in the Employment Discrimination Review Committee of Taipei Municipal Government. This paper applies this definition to examine the legal framework and the enforcement of the laws regarding the discrimination relating to female worker’s pregnancy, childbirth or related medical conditions in Taiwan.
In 1999, the Awakening Foundation, one of the most influential pressure groups on gender issue, set up a line to provide consultation service on employment discrimination. Many workers contacted the Foundation for adivice and most of the questions were on pregnancy discrimination.[10] They claimed to be discriminated due to their pregnancy, including unfair dismissal, unfair selection for intermission or denial of other statutory rights. According to the result of a survey on “The Situation of Working Women” jointly conducted by Taipei County Government and 1111 Manpower Banking Company in 2004, thirty percent of the interviewees claimed that they had ever experienced an unfair treatment in relevance with pregnancy. Eighty percent of the interviewees confirmed that their pregnancy had ensued in the discriminatory acts in their working places. However, fifty percent of the interviewees who claimed to have been unfairly treated answered that they would do nothing. Only fifteen percent of the interviewees answered that they would further take legal action against their employers.[11]
Legal approach is adopted to analyzethe existing literatures and several interviewswith staffs ofcompetent authorities are also conducted. Unfortunately, information is inadequate for assessing the enforcement relating to pregnancy discrimination in hiring process.[12]This paper is unable to tackle on pregnancy discrimination happening in many stances. There hardly is a case available if we use the term “pregnancy discrimination” as the keyword to search the pregnancy-relateddiscrimination cases. The available statistical information does not specificallyhighlight or analyze pregnancy-related complaints and litigations. The author uses the term “unfair dismissal” and “maternity leave” as the keywords to search all the unfair dismissal litigations and locate the unfair dismissal disputes relating to pregnancy discrimination by reviewing all unfair dismissal cases of all jurisdictions retrieved. For the enforcement of litigation, this papertherefore focusesonly on the unfair dismissal disputes relating to pregnancy and maternity leave to understand the practice of pregnancy discrimination. The publications of the complaints at the committees across Taiwan do not exist. For this paper, the decisions rendered to the complaints relating to unfair dismissalduring pregnancy and maternity leave are obtained through personal connections. Majorrulings on complaintsand litigations regarding the unfair dismissal during pregnancy and maternity leave are highlighted.
II. The Development of Legal Frameworkin AccordancewithPregnancy
Discrimination andEnforcement Agencies
1. Development of Legal Framework
The Constitution guarantees that men and female are equal before the law and Article 7 of the Constitution specifically establishes the principle of equal treatment for both sexes.In addition to Article 7, Article 15 is regarding rights to work, Article 22 is regarding rights to liberty, and Article 152 is regarding the government’s role in enforcing adequate policies for the protection of women. All those principles established under the Constitution have been the constitutional basis against pregnancy discrimination.
In Taiwan, limited statutes can be applied to administersex-related employment discrimination before the passage of its Labor Standards Law of 1984(“LSL”).[13]Since 1984 maternity leave has been provided for female workers givingchildbirth under LSL and in 1992, the Employment Service Law (“ESL”) shall be applied to make it illegal ifa female workeris discriminated atwork for a reason relating to pregnancy.
In December 2001, Gender Equality in Employment Law of 2001(“GEEL”) was passed and put into force on March 8, 2002.. The legislation for the protection against sexualdiscriminationwas continuously influenced by the social policy agenda advocated by gender equity advocates.[14]Since 1989, the bill of GEEL employment was promoted by Awakening Foundation but was unable to complete its legislative process for more than a decade because of strong opposition from the enterprises.This law further seals the loopholes of the then existing statutes in order to provide better protection against sexual discrimination.[15]With clear statuary languages, the legislations explicitly provide employment security andrelated benefits for pregnant employees.
2. Enforcement Agencies
As to the administration of the laws, since 1985, the Commission of Labor Affairs (“CLA”), an agency equivalent to the Ministry of Labor of foreign Countries, was established as the competent agency of labor administration of central government. Part of its responsibilities is to formulate strategies and policies against employment discrimination. The Employment Discrimination Review Committees (“the Committee”) of local governments that are established under ESL and GEEL serve to offer protection to female workers from employment discrimination. The Committees are established to offer better support for the victims of employment discrimination and for the employeesto chargetheir complaints. Administrative courts, Civil courts and Criminal courts of the judicial system also serve important roles in the enforcement of pregnancy discrimination. Thepassage of GEEL draws the attention of the courts to the pregnancy discrimination disputes.[16]
III. The Enforcement Acts againstPregnancyDiscrimination Between
1984 and 1992
During this period, several articles of LSL wereenacted in a part to provide some accommodations to female workersduring the period of pregnancy, childbirth and recovery.Manyprotective stipulations were available to offer protection but in daily practice, the principle expressed in LSLmight not have playeda guiding role for employers and workers. Many workers were not covered under LSL. For those covered under LSL, pre-executed restrictive covenant may have restricted the female workers from enjoying their rights because the covenant was enforceable. The competent agencies were not empowered to investigate actively.
1. The List of The Available Protective Stipulations
(1) Fixed term employment and at-will Termination under Civil Code
For those workers whose employments were not covered under LSL, Civil Code is applicable to decide the questions arising from their employment contract.[17] Paragraph 1 of Article 488 of the Code stated that for the employment contract specified with fixed term, the contract should be expire on the end of the term. The female workers might be hired on a fixed-term basis so that no termination should be needed if the employer did not renew their expire contract. Paragraph 2 of the same Article stated that for the non-fixed-term employment contract, either party shall terminate the contract at any time. According to these stipulations, since at-will termination was legal, no unfair dismissal could be charged.
Even though several researches from Academia found several articles of Civil Code governing general principles, for instance, the supremacy of mandatory clauses,[18] public policy clause,[19] and good faith clause[20]should be applicable to employment contract to battle against unfair termination. There wasn’t any way to find any termination on discriminatory basis because the employers were permitted to do it without giving any cause.
(2) LSL
This law granted better protection to workers but should be applicable only to the employers and employees covered under specific lines of business under Article 3 of LSL. For those employers and employees not within the lines of business, they were exempt from the obligations and responsibilities under LSL. Therefore, during this period the female workers covered under the law constituted only a small portion of the total workers. For instances, all service industries except the mass media industry were not covered.[21] The employers were imposed the following obligations for the protection of pregnant workers and their right on maternity leave.
A. Female worker protected under Fair Dismissal Stipulations
Under LSL, it was still possible to enter into fixed-term employment contract but under very strict regulations. Basically, employees were covered under non-fixed-term employment relationship. LSL strictly outlined that any employer’s action of termination should only be conducted with reasonable causes listed in Article 11 and Article 12 of LSL. Worker in maternity enjoyed better from being terminated.
B. Fair Dismissal under Article 11
Under Article 11 of LSL, an employer could fairly terminate an employee on five types of causes. The causes included: the cessation or transfer / handover of the employer’sbusiness, an operating loss or contraction, suspension for more than one month, redundancy and the incompetence of the employee. According to Article 16 of LSL, if an employer would like to terminate an employee fairly under this Article 11, the employer was required to serve notice to the employee prior to the date of termination.In addition to prior notice, for a fair dismissal with one of the causes under this Article 11, the employer should recompense a severance pay to the dismissed employee according to Article 17 of LSL.[22] Pursuant to Article 13,an employer should not terminate aworker who was on maternity leave.
Because of the stipulations, since 1984 any termination or summary dismissal under LSL could be declared invalid.If the employers refused toaccept the invalidation, they would be liable to pay damages.Presumably, the employment contract continuedto be effective during the period in dispute and employee could not bedischargedby the unfair dismissal. Back pay might be claimed for the period in dispute. Employee should have aclaim under the LSL for the loss of unfair dismissal. If an employee’s maternity leave was ended bydismissal and the reason for the dismissal was merely that she had given birthor any otherreason connected with her maternity, then she was unfairly dismissed. However, the employee was required to provide a relevant circumstantial evidence. The burden of proof was on the employees.
C. Fair Dismissal under Article 12
Under Article 12 of LSL, any employee’s default or her other misconduct within the six causes listed in the Article 12 might cause an employer to terminate her. If an employee was terminated under this Article, the employer was not required to give prior notice and no compensatory pay is needed.
D. Criminal Sanction against Violations of Unfair Dismissal
Article78 of LSL stated that an employer who violated the stipulations of Articles 13 and 50that protect employees’ maternity rightshould be sentenced to a fine no more than NT$30,000. Furthermore, if the employer was composed of a legal entity, the punishment should be extended to the managing directors and staff member. Article 81 further stated that if the representative of a legal entity, the agent of a legal entity or a person, an employee or any other staff member violated the Act in the rendering of his respective actions, the violator should be penalized.Therefore, the legal entity itself or the person should also be subject to sentence by such fine or administrative fine as prescribed in the respective articles of the law. The criminal sanction should be applied if an employer deliberately disregardedhis employee’s rights of maternity leave.
E. The Maternity Leave andBenefit
Article 50 of the law guaranteed pregnant workers eight weeks maternity leave forchildbirth. In the case of a miscarriage after the first three months of pregnancy, the female employee should be granted maternity leave for a period of four weeks.[23]While on maternity leave, female workers had the right to keep their jobs and the rights they acquired under their employment contract should not be affected.This entitlement was not restricted upon length of service and type of contract.
During maternity leave, an employee’sworking obligation was suspended but her employment rights continued.The LSL stated that the employer must continue payment of regular wageand benefits during the period of leave. If the female employee had been in service for more than six months, she should be paid full regular wages during her maternity leave and if her service was less than six months, she should be paid half of her regular wage.[24]
As for other benefits granted during the maternity leave, they included annual vacation, pension, and health insurance entitlements.A female workerwas still able to accrue seniority and remained eligible for pay increases and other benefits, such as annual bonus. Taking maternity leave should not be considered as an absence from work so that the bonus benefit specifically designed for full-attendance employee should not be withheld if the employee taking maternity leave were qualified to enjoy the benefit.
The statuary maternity leave and its benefit entitlement were generous, but the compliance during the period between 1984 and 1992 had been highly in doubt.
2. The Practice under Covenant-Not-To-Marry and Covenant-Not-To-Be-
Pregnant
Though LSL provided particularly solid protection against unfair dismissal during maternity leave, the function of this absolute protection needed to be viewed in the context that mostdismissals seemed to be controlled under the covenant-not-to-marry and covenant-not-to-be-pregnant. The application of covenant-not-to-marry and covenant-not-to-be-pregnant was widely practiced in the industries hiring many female workers. Employers might fear for the long-term impact of pregnancy and the costs arising from maternity leave. By written restrictive contract of adhesion, restrictive passage or pre-executed resignation letter, as a condition for their employment, female workers were forced to impose on themselves a covenant to terminate themselvesfrom jobs as soon as they got married or they were pregnant. Employees were usuallyrequested to sign the conditional terms when theywere first hired.[25] The restrictive covenants were mainly enforceable during the period even as early as the year 1986 though CLA openly regulated that covenant-not-to-be-pregnant was void and unenforceable for its violation against public policy.[26] The voice from academia also denied the enforceability on its being against public policy, mandatory clause or good faith clause.[27] However, the covenant was not unenforceable and in litigation, the covenant might not be declared void in light of employment as a whole and circumstantial facts were concerned.