受僱者於「下班後」遭受性騷擾事件與適用性別工作平等法之關係──以性別工作平等法「執行職務時」之認定為核心

Sexual Harassment of Employees After Work Hours and the Applicable Articles of the Act of Gender Equality in Employment: Interpretation of the Term ''In the Course of Executing Duties'' as Prescribed in the Act

性別工作平等法對於消弭職場性別歧視與保障性別工作平權，功不可沒。惟「敵意性工作環境之性騷擾」類型，以受僱者於「執行職務時」遭受之性騷擾始為雇主防治之範疇，受僱者是否處於「執行職務時」，常見爭議。本文以工作時間為基礎，參酌執行職務之環境及其他事項，試圖區分為受僱者於雇主支配管理之工作環境下執行職務遭受性騷擾、於雇主無法支配管理之工作環境下執行職務遭受性騷擾、以及參加雇主期待其員工應為之活動遭受性騷擾三種類型，再依執行職務之時間及地域上之內在關聯性進行分析，最後提出執行職務不可囿於勞基法工作時間之認定、重視下班後應同事邀請聚餐發生性騷擾事件之本質與判斷，並提出性騷擾三法之體系應予整合之建言。

The Act of Gender Equality in Employment has been indispensable in preventing workplace gender inequality and guaranteeing equal rights in the workplace for all genders. However, in regard to the common hostile working environments and related sexual harassments, employers’ scope for prevention and control only extends to sexual harassment that employees receive ’’in the course of…executing his or her duties.’’ Therefore, disputes arise over whether the employee was ’’in the course of executing his or her duties.’’ In this paper, work hours are used as the basis to deliberate the environment and other conditions under which duties are executed; an attempt is made to differentiate between three types of sexual harassment—those encountered by employees while executing duties in work environments that the employer controls and manages, those encountered in environments that the employer cannot control or manage, and those encountered while participating in activities expected by the employer. The intrinsic relevance of the time and venue while executing duties is then further analyzed. Finally, this paper proposes that the execution of duties should not be limited to the determination of working hours by the Labor Standards Act; rather, emphasis should be placed on the nature and determination of sexual harassment occurring after the acceptance of coworker invitations to have dinner after work. Such factors should be considered before systems are proposed for determining how the three sexual harassment laws shall be integrated.