Comparative E.E.O. Law: Pregnancy Legislation in the United States and Taiwan

Abstract

The Equal Pay Act of 1963 marked the beginning of modern civil rights legislation in the United States. In the past thirty years, Congress has enacted a wide-range of legislation geared to providing equal job opportunity in America: the Civil Rights Act of 1964 (CRA), the Age Discrimination in Employment Act of 1967 (ADEA), and most recently the Americans with Disabilities Act of 1990 (ADA), and the Civil Rights Act of 1991.(1) Each new law expanded Congressional intent to develop an American workplace freed of all forms of employment discrimination. But what about civil rights and human rights in foreign countries? In recent years, more and more United States firms have initiated or expanded international operations. In view of such growth, multinational corporations face a host of interrelated and often times confusing questions: When do U.S. laws apply to the overseas workplace? When don't they? Do overseas laws apply to all employees, both U.S. and foreign nationals? Do they apply sometimes and not at other times? In operating abroad, American managers must be aware of and understand both United States E.E.O. law and other nations' laws as well. The problem is further exacerbated by the dramatic growth in recent equal employment opportunity (E.E.O.) endeavors by foreign nations. For example, Tunisia has put into effect an equivalent of the Equal Rights Amendment for women in the workplace;(2) Korea, in 1987 passed an Equal Employment Opportunity Act (which included pregnancy);(3) and in Taiwan's Labor Standards Law of 1984, three Articles were devoted exclusively to pregnancy. Finally, this issue has become further clouded with the extraterritoriality provisions of civil rights laws under the Civil Rights Act of 1991. This Act extended Title VII of the Civil Rights Act to Americans employed abroad. But, it said shall not be unlawful...for an employer...to take any action otherwise prohibited by...(Title VII)...if compliance...would cause such employer...to violate the law of the foreign country in which such workplace is located.(4) Comparative E.E.O. studies must be made available to practicing managers. The purpose of this article is to present one such study - a comparison of the American Pregnancy Discrimination Act (P.D.A.) and the pregnancy articles of Taiwan's Labor Standards Act. We have chosen pregnancy legislation because it is short enough to be amenable to detailed analysis in a single article. Most other legislation (e.g., Occupational Safety and Health Act, Employee Retirement Income Security Act) are so detailed and cumbersome that it would be imprudent to attempt a comparison between such legislation and that of other countries. For example, if you were to compare ERISA with the retirement provisions of the Taiwan law, one would need to consider a wide range of issues such as qualified plan, defined benefit and defined contribution plans, vesting provisions, and so forth, compared with the Taiwan law's simple five article statement concerning the general nature of retirement provisions. Most importantly, ERISA does not provide for extraterritoriality, and as such is not as appropriate as using a law such as the PDA. We have also chosen Taiwan for a number of practical considerations. It is a democracy which has been supported by and been on a friendly status with the United States for many years; a number of large American business firms such as IBM, Corning and Motorola, are operating in Taiwan; and it was possible to obtain a copy of the Labor Standards Act both in Chinese and English, along with a translator for those passages which were not completely clear in the English version. This article will first examine the extraterritoriality issue. Then we will briefly cover the unique history of the P.D.A. Next, we will describe, analyze, and compare the provisions of the American and Taiwanese legislation. Finally, we will analyze the question: Does the Taiwanese pregnancy legislation come into conflict with the Pregnancy Discrimination Act. …