Despite Council of Labor Affairs (CLA) regulations forbidding discrimination based on age or gender when dealing with job applicants, certain gray areas in the rules continue to cause companies headaches when hiring employees.
The Employment Services Act (就業服務法) states that discrimination based on physical appearance, age, ethnicity or gender is prohibited and any violation of the law can result in fines ranging from NT$300,000 (US$9,900) to NT$1.5 million.
However, real-world employment issues have proved harder to address. For example, a male underwear company encountered problems when the law prevented it from stating it was looking exclusively for male models, as that would constitute gender discrimination. As a result, the firm had no choice but to engage in grammatical gymnastics in ads on its Web site, which read: “Hiring models wearing male underwear for photography sessions, no gender restrictions.”
Photo: Lo Pei-der, Taipei Times
In contrast, “maid” restaurants or cosplay restaurants where employees wear a maid’s outfit in an attempt to make customers feel like “masters,” are not considered to violate the act, because the restaurant is regarded as meeting creative theme requirements.
The Social Order Maintenance Act (社會秩序維護法) and the -Ordinance for Management of Information Leisure Service Providers (資訊休閒業管理條例規定) stipulate that people under the age of 18 cannot frequent Internet cafes after midnight, while Internet cafes must abide by the Protection of Children and Youth Welfare and Rights Act (兒童及少年福利與權益保障法). Internet cafes are also forbidden from hiring teenagers to work the late-night shift.
The government has also limited its own scope for movement with job application discrimination regulations as applied to slightly disadvantaged groups, such as elderly employees. The council recently cited the Employment Services Act to restrict the ads of privately owned employment service centers, saying such ads should not include the words “Welcoming [women] for re-employment” or “Welcoming applications from seniors/limited to middle-aged and senior applicants.”
New Taipei City’s (新北市) Labor Affairs department says that most of the re-employed are women, and therefore ads that mention “welcoming reemployment” imply positions restricted to women, which is in violation of the Employment Services Act.
However, Taipei City’s Bureau of Labor Affairs division chief Huang Ai-chen (黃愛真) said that Article 5, Subparagraph 1 of the Employment Services Act lists a proviso clause that says where the hiring restriction is related to actual job content, then such an ad does not violate the Employment Services Act.
In the case of the male -underwear company, Huang said that all the company has to do is provide proof that there is an actual relationship between the hiring restriction and the job on offer.
In terms of whether a “maid” restaurant “must” employ women, Huang said such an policy could be considered to “objectify women,” adding that as men can also excel at such work after dressing up, gender restrictions would not be appropriate.
Huang said that it was r-easonable for Internet cafes to be forced to employ people aged 18 or over if regulations stipulated that those under that age cannot legally frequent such establishments after midnight.
On advertisement labeling, Huang said that according to current notices received by the bureau from the government, only the words “restricted for certain people” are banned, adding that there were no regulations against “welcoming” a certain group in an ad.
Ambiguities in the interpretation of the law show that there is no “absolute standard” and a variety of explanations can be made for the divergent application of the law as the times change.
The council’s Bureau of Employment and Vocational Training director-general Lin San-quei (林三貴) said that determining whether the gray areas in the Employment Services Act actually infringe on employment discrimination is the responsibility of city and county-level -Employment -Discrimination -Evaluation Committees.
In the event that committee members have different opinions on a particular case, the central government could also hold talks with counties and cities to determine an acceptable outcome.
At present, if companies find themselves facing problems or are unclear about issues relating to employment discrimination, they should seek answers from their local labor affairs bureau.
Translated by Jake Chung, Staff Writer
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