因女性自身生理特点和社会角色之影响,处于孕期、产期、哺乳期(简称“三期”)女职工遭用人单位违法解雇现象非常严重。一旦女职工选择解除劳动关系,用人单位除支付法定赔偿金,亦应赔偿女职工之生育保险待遇损失和“三期”内工资待遇损失。这符合我国立法赔偿可得利益损失之精神以及我国劳动法之立法宗旨。实务中司法机关因缺乏社会性别意识,排除《劳动法》而直接适用《劳动合同法》之规定,以不符合实际履行原则为由,否定上述两项损失之赔偿,其合理性存在质疑。对工资待遇损失之赔偿,应符合可预见性规则,按照一般哺乳期工资标准认定。 Because of the physiological characteristics of women and the impact of social roles, women workers who were in the process of pregnancy, delivery and lactation (hereinafter referred to as the “Phase III”) were found to have been severely punished by employing units. Once the female workers choose to terminate the labor relationship, the employer shall, in addition to paying the statutory compensation, indemnify the loss of maternity insurance benefits of female employees and the loss of wage within the “three phases”. This is in line with the spirit of the loss of profits from the legislative compensation in our country and the legislative purpose of our labor law. In practice, the judiciary has questioned the rationality of neglecting the compensation for these two losses on the grounds that the judiciary lacked gender awareness, excluded the Labor Law and directly applied the provisions of the Labor Contract Law, and did not conform to the principle of actual performance. Compensation for the loss of wages should be consistent with the predictability of the rules, in accordance with the general lactation salary standards.