for improvements are mainly directed at female cabin crew. I have
never heard of a male cabin crew being reported. This is because
female cabin crew have more items to consider, such as skirt
length, nails, hair, and makeup.” All these represent relatively
adverse treatment towards female cabin crew. Thus, the dress
codes clearly result in both direct and indirect adverse treatment
towards female cabin crew.
g) Does the differential treatment fall under the exceptions category?
Is it related to the performance of duties? Considering the variety
of job types that exist, there may be special circumstances in
which employers have legitimate reasons for differential
employee or applicant treatment that is not based on
discrimination. This is known formally as “bona fide occupational
qualifications.” That is, when the employment conditions are such
that the gender of the job applicant or employee is essential for the
job they are applying for or employed in, and it is a reasonable
necessity for normal business operations (e.g., employing only
women as female lingerie models), it does not constitute
discrimination. This also corresponds to the provision in Article 7
of the Gender Equality in Employment Act: “However, if the
nature of work only suitable to a specific gender, the abovementioned restriction shall not apply.” 45
However, as this constitutes an exception to the prohibition of
discrimination, and given the practical difficulties for employees
or applicants when it comes to presenting relevant evidence,
Article 31 of the Gender Equality in Employment Act stipulates
that “after employees or applicants make prima facie statements
of the discriminatory treatment, the employers shall shoulder the
burden to prove the non-sexual or non-sexual-orientation factor of
45
Article 3 of the Enforcement Rules for Act of Gender Equality in Employment states
that “The nature of work only suitable to a specific gender referred to in Article 7
of the Act shall mean work that cannot be accomplished or cannot be possibly
accomplished by applicants or employees of a specific gender.”
56