Anti-discrimination Protection in Taiwan Constitution

I once received this interpretation from the Labor Ministry

It states there’s a principle that employers cannot exclude people based on"characteristics not related to performing particular work". I am sure that certain physical characteristics would be considered essential to the particular nature of modeling.

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Thank you so much! :slight_smile:

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Indeed. The standard practice in jurisdictions that care about this sort of thing is to have “common sense” exceptions, e.g. a restaurant with an ethnic theme can discriminate in order to hire staff with a look that matches the theme, regardless of anyone’s actual ethnicity, but that shouldn’t extend to staff members who are never seen by customers.

There’s a joke in one of the Ocean’s movies that a casino can fire its waitresses when they gain weight because they’re not waitresses but “models who serve”. That was probably inspired by a real life case.

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There’s a nice short paper Preventing Racial Hatred and Discrimination by Implementing ICERD that walks through some of the background and ideas for changes here.

In theory, Taiwan has ratified the International Convention on the Elimination of All Forms of Racial Discrimination. However, it was never implemented into domestic law. The author also expects judges to be generally unaware of ‘racial equality’ as a concept.

In terms of laws other than the Immigration Act, there is Article 21 in the Telecommunications Act:

A telecommunications enterprise shall provide services in a fair and non-discriminatory manner unless otherwise provided for herein.

which was referenced (informally, no case law that I’m aware of) in some complaints against Telcos who refused to provision equal service to foreign residents.

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In the case of Taiwan, I’m sure there are numerous loopholes, like language ability and cultural familiarity, that could be hijacked to circumvent compliance.
Among the small percentage of employers who are aware of the regulation.
And the even smaller percentage of them who even give a monkey’s.

ETA: this I was also thinking about:

:idunno:

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Regulation for Petitions against Discrimination against People Residing in the Taiwan Area

Enforcement Act of Convention on the Elimination of All Forms of Discrimination against Women

Cultural Fundamental Act

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW)

laws including the word of discrimination.
https://law.moj.gov.tw/ENG/Law/LawSearchResult.aspx?cur=Ld&ty=ONEBAR&kw=Discrimination&mo=1

Drafts of anti-discrimination laws in Chinese

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Nice piece!

bump to this thread and related follow up question: what are the protections for people with disabilities who work in Taiwan ? I’m thinking about the “reasonable accommodations” related to the ADA (Americans with Disabilities Act) in the US and wondering if employees here are entitled to those same protections? If an employer expresses disapproval of something an employee needs that is a “reasonable accommodation” (such as time to check their insulin or a chair to sit in due to their inability to stand for long periods of time) as a criticism of an employee’s ability to do their job, in what ways are employees here protected (or are they)? If an employer tells an employee that “there are complaints” about the employee’s use of a needed mobility device, for example, is the employer protected in this discrimination or does the employee have rights in Taiwan?

There doesn’t seem to be much, does there? But maybe Article 16 here?

https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=D0050046

Couldn’t see anything obvious in the LSA either (from a cursory look).

Thanks for looking. Article 16 is excessively vague:

Article 16

The dignity and legal rights and interests of people with disabilities shall be respected and guaranteed. People with disabilities shall not be discriminated on the rights and interests of education,(examination)participation, employment, residence/ housing, migration and medical care service.
Any person who operates public places or facilities/installations, shall not prevent people with disabilities from fairly using and enjoying the facilities/installations, equipments, and rights only because of their disability.
When attending to public exams, all public, private organizations (institutes), corporate, schools, and enterprises should provide multiple appropriate assistances, under the principle of fairness, to test-takers with disabilities to safeguard the exam opportunities for people with disabilities.

It basically says “in principle, people with disabilities should be allowed to have jobs, and how that’ll work out for them is none of our business”. Unless you’re taking a test, in which case, “enterprises should provide multiple appropriate assistances, under the principle of fairness, to test-takers with disabilities to safeguard the exam opportunities for people with disabilities”. So someone with a disability is entitled to “appropriate assistances” when taking a test, but not in the other circumstances?

I’m a bit surprised (while also not at all surprised…) there’s nothing in the LSA either. Do people who develop disabilities during their “working years” just quit their jobs, collect some pitifully small amount of disability benefits, and sit around waiting to die?

Act to Implement the Convention on the Rights of Persons with Disabilities

CRPD 已於 2014 年透過《身心障礙者權利公約施行法》獲得台灣國內法效力,2017 年 CRPD 初次國家報告結論性意見第 23 段,國際審查委員會更建議台灣政府應將合理調整原則納入各項國家法規,並確保法律規定拒絕合理調整即構成歧視。然而除《監獄行刑法》與《羈押法》於 2020 年將合理調整入法外,在絕大多數的領域中,合理調整仍缺乏法律依據。顯見政府未體認「合理調整」對障礙權利的重要性,甚至欠缺「拒絕提供合理調整即為歧視」的認知。呼籲政府與義務承擔者應積極且正確理解「合理調整」真諦,以期在相關法律之修訂與執行上,確保障礙者權利之落實。

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Yes, that was exactly my feeling too.

See also Article 54 of the LSA, which taken another way apparently permits workers to be forcibly retired if becoming disabled to the extent they can’t perform their work:

Article 54

An employer shall not force a worker to retire unless any of the following situations has occurred:

  1. Where the worker attains the age of sixty-five.
  2. Where the worker is unable to perform his/ her duties due to disability.

I’m out at the moment and can’t really check, but I remember a recent story or two clarifying that (migrant) workers can’t be fired upon becoming pregnant. I wonder what the legal basis for that was, and whether it might be partially relevant to other “health”/normal life conditions?

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https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=D0050046

Disability also comes up a few times in the ESA, particularly Art. 5 (non-discrimination).

https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=N0090001

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I would assume (thinking of Canada) that it’s because pregnancy isn’t considered a disability and it would be deemed discrimination on the basis of sex.

ETA: See Art. 11 of the AGEE.

https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=N0030014

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Just to clarify, I also wasn’t suggesting that pregnancy is a “disability”. I just didn’t know what the legal basis is for that kind of discrimination being illegal and thought the relevant law stipulating that might also be relevant in other cases. :slight_smile:

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@yyy and @Andrew, thank you both. From what you posted, it seems like there are laws in place in principle, but nothing is clearly outlined for any member of the community to fully understand what is expected of them, both for providing and for receiving accommodations. Based on how I am reading it, it seems like employers could easily (by which I mean legally) fire an employee for requiring an accommodation, even if they can’t fire them for having a disability. There is no direct “you violated xyz” that someone can point to, which means lengthy legal battles.

Also, on the pregnancy topic, until 1996, pregnancy and having been pregnant were both considered “preexisting conditions” in the US. This means anyone with the ability to or having been pregnant could be denied health insurance or forced to pay insane rates. Not the same thing as a disability, but in that same thread, obviously discrimination based on sex, in “the most developed nation on earth”, within the past 30 years.

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Better yet, up until Obamacare in 2014, most individual plans excluded maternity care.

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It seems like much of the ESA only relates to Taiwanese citizens? The use of “nationals” in there is pretty conspicuous, especially in the first few articles.

Every national is free to choose his/her occupation unless otherwise is prohibited or restricted by the law.

foreigners could be included in the subjusts of anti discrimination protection.

but, when they say disabled in the act, it means people with disability certificate issued from roc, which cannot be issued to foreigners except for few japanese, as far as i know.

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