discrimination.”63
Nonetheless, the competent authorities accepted EVA Air’s defense
that there was no intent to discriminate based on gender. They did not make
an objective judgment based on the adverse impact on women, and failed
to consider how to change gender stereotypes as stipulated in Article 5,
Subparagraph (a) of CEDAW.
Furthermore, in their review, the competent authorities required cabin
crew to present specific instances and details of adverse treatment but did
not require the Taiwanese airlines to explain whether the differential
treatment met the differential treatment exception criterion (bona fide
occupational qualification); e.g., to prove the necessity, legitimacy, and
reasonableness of wearing dresses to perform cabin crew duties (in
accordance with the Gender Equality in Employment Act). Also, the
competent authorities did not clarify the relationship between the ruling of
non-discrimination and positive affirmative action measures (in
accordance with CEDAW) (see Table 4 for details).
[Table 4] CEDAW’s definition of discrimination and exceptions
Actions constituting discrimination (Article 1)
Exceptions (actions not
constituting
Action
Result
discrimination) (Article
4)
Any
“distinction, The impact or purpose of the • Temporary special
exclusion or restriction” action is significant enough to
measures aimed at
made on the basis of sex. impede or deny (women) the
accelerating de facto
equal enjoyment of their human
equality
between
→ Helpful reminders:
rights
and
fundamental
men and women
freedoms.
• Regardless of intent
• (Permanent) special
• Direct discrimination:
measures protecting
→ Helpful reminders:
Distinction,
maternity
adverse
exclusion,
or • Direct
consequences
restriction
clearly
based on gender or • Indirect adverse impacts
gender differences
• Ignoring
discriminatory
63
Frances Raday, Shai Oksenberg (2022). Article 11, in Patricia Schulz, Ruth
Halperin-Kaddari, Beate Rudolf, Marsha A. Freeman (eds.). The UN Convention on
the Elimination of All Forms of Discrimination Against Women and its Optional
Protocol: A Commentary(2nd.). (Oxford University Press), p. 422.
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