外籍家庭看護工遭受職場性騷擾之雇主事後補救義務

Employer Obligation to Remedy Following Sexual Harassment of Foreign Home Caregivers in the Workplace

為妥善處理高齡社會之老年人照護問題，聘請外籍家庭看護工成為許多有長照需求家庭之選擇。惟長期以來，外籍家庭看護工受到性騷擾之案例時有所聞，使得吾人無法漠視。外籍家庭看護工雖因屬個人服務業而無勞動基準法之適用，但仍屬性別工作平等法之適用對象。是以，當外籍家庭看護工之雇主知悉性騷擾情事時，即應履行性別工作平等法第13條第2項所定之雇主事後補救義務。然則，與發生於事業單位內部之職場性騷擾案件相較，外籍家庭看護工之職場性騷擾案件於勞務提供場所、勞務提供者暨勞務受領者方面，可謂皆有其特殊性。因此，本文以性騷擾之雇主事後補救義務為切入點，就性別工作平等法之適用範圍、雇主之認定、知悉之時點、立即有效之糾正及補救措施之界定等問題，探討外籍家庭看護工職場性騷擾案件之特殊性，並探討可能之解釋途徑。

In an aging society, many families with long-term care needs have chosen to hire foreign home caregivers in order to tackle the elderly care problem. However, cases of sexual harassment of foreign home caregivers have been reported for quite some time, which the public cannot ignore. Foreign homecaregivers are not covered by the Labor Standards Act because they work in the personal service industry, but they are covered by the Act of Gender Equality in Employment. In accordance with Article 13, Paragraph 2 of the Act on Gender Equality in Employment, when the employer of a foreign home caregiver becomes aware of sexual harassment, he or she is obligated to remedy the situation after the fact. However, compared to cases of workplace sexual harassment that occur within businesses, cases involving foreign home caregivers have particularities regarding the location of the labor supply, the labor provider, and the labor recipient. Departing from the employer's obligation to remedy sexual harassment, this study has examined workplace sexual harassment offoreign home caregivers in terms of the Act of Gender Equality in Employment's scope of application, the employer's determination, the time of acknowledgment, the definition of immediate and effective corrections, and the definition of corrective measures. This study investigated possible explanations for each definition by examining the particularities of workplace sexual harassment cases involving foreign home caregivers.