Diversity and equality: recent developments in Korean law
Kim & Chang, Seoul
Sexual harassment, harassment and discrimination in the workplace are among the key issues that are being discussed in relation to diversity and equality laws in South Korea. With the rising prevalence of environmental, social and governance (ESG) investing, there is increased recognition for HR practices, ethical management and compliance with diversity and equality laws as key features that affect a company’s level of social responsibility. For instance, the ESG rating of a company that was known as a model of ESG management in Korea plummeted recently after a workplace harassment incident in the company was widely publicised in the media.
Workplace sexual harassment
The issue of workplace sexual harassment in the workplace first came to the public’s attention in South Korea when a female teaching assistant who was harassed by a male professor in 1993 filed a damages lawsuit, and the case ended up at the Supreme Court, which rendered a decision in February 1998. The case led to an amendment to the Equal Employment Opportunity Act in February 1999 that legally prohibited sexual harassment in the workplace. Since then, practices and perceptions in Korea regarding sexual harassment have changed and evolved significantly.
Notably, in thecase 2017Du74702 rendered 12 April 2018, the Supreme Court set forth the principle of ‘gender sensitivity’ in reviewing the probative force of the testimony of sexual harassment victims. This principle is understood to mean that the court must understand gender discrimination in the context of an individual sexual harassment incident, and the court must not dismiss the testimony of victims without due consideration of the specific circumstances of the case, since victims’ responses to harassment are affected by factors such as the victim’s disposition or their relationship with the harasser.
Subsequent to this decision, other courts and the National Labour Relations Commission have rendered decisions that are protective of the victim based on the principle of gender sensitivity. For instance, in a case concerning a former governor’s prolonged harassment of his secretary over seven months, the appellate court (February 2019) and Supreme Court (September 2019) applied the principle of gender sensitivity and recognised the credibility of the victim’s testimony, overturning the trial court’s acquittal (August 2018) of the defendant on the grounds that the victim’s testimony was unreliable.
The first legal provision on workplace harassment in Korean law was added to the Labour Standards Act (LSA) on 16 July 2019. In the two years since it became effective, the provision has had a significant influence on Korean companies and society at large. According to the Ministry of Labour and Employment, 2,130 reports of workplace harassment were filed to the National Labour Relations Commission in 2019, and 5,823 reports in 2020. Of those cases, verbal abuse constituted 45.2 per cent, unfair labor practice 21.2 per cent, bullying or slander 15 per cent and unfair exclusion from work, 3.6 per cent. Psychological harm from workplace harassment is also being recognised more frequently as an ‘industrial accident’.
Although the current LSA prohibits workplace harassment and requires employers to investigate workplace harassment incidents, take appropriate measures and protect victims, it does not have provisions penalising non-compliance with such obligations. As such, the law has been constantly criticised for being ineffective. To address this concern, an amendment to the LSA was passed on 13 April 2021, with an effective date of 14 October 2021. The amendment imposes administrative fines on employers that fail to fulfil the obligations regarding workplace harassment and establishes a confidentiality requirement for facts discovered during investigations of workplace harassment.
Despite these changes, there has been criticism that the protection provided by the LSA is still limited, such as the provisions not applying to non-standard employment relations or employers with five or fewer employees. About fifteen bills to amend the LSA, including proposals to: (1) extend the law to workplaces that employ four or fewer employees; (2) extend the law to workers with special employment statuses such as contractors and apartment complex security guards and third-party harassment; (3) require workplace harassment prevention training; (4) allow employees to request review of the employer’s investigation and handling of workplace harassment complaints by the National Labour Relations Commission; and (5) require employers to report occurrences and complaints of workplace harassment and their handling of such cases to the Minister of Labour and Employment have been submitted to the National Assembly.
Article 11 of the Korean Constitution states that ‘all citizens shall be equal before the law, and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status’, and the National Human Rights Commission of Korea Act explicitly prohibits 20 forms of discrimination. Laws such as the LSA, Fixed-Term and Part-Time Employee Protection Act, Temporary Agency Worker Protection Act, Equal Employment Opportunity Act, Act on the Prohibition of Age Discrimination in Employment, Act on the Prohibition of Discrimination against People with Disabilities and the Foreign Worker Employment Act prohibit discrimination based on gender, age and nationality. However, there is no one law that prohibits discrimination in general.
Incidents of discrimination are less frequently reported in the media than cases of workplace sexual harassment and workplace harassment. However, after a recent story about an interviewer at a pharmaceutical company asking a female applicant whether she had completed military service (women are exempted from Korea’s military service requirement) was widely covered by the media, issues of discrimination have started to become more salient topics in public discourse.
Various bills to establish a broad anti-discrimination law such as the ‘Equality Act’ and the ‘Anti-Discrimination Act’ have been proposed over the past decade. However, because there is still debate on whether a comprehensive anti-discrimination law is necessary given that there are laws prohibiting specific forms of discrimination, it is unclear whether such a law will be enacted.
Diversity and equality laws are becoming issues of greater interest and importance in Korea, and legislative and judicial bodies are addressing them more actively. However, these laws still need improvement, especially compared with similar laws of other jurisdictions that have adopted them much earlier. Moreover, the inadequacy of social awareness and material conditions necessary for the laws to be truly effective result in frequent controversies that can be costly to resolve. However, increasing awareness of issues of diversity and equality among millennials and Generation Z, growing emphasis on ESG, and legislation that seeks to redress shortcomings of existing laws point to a future where well-functioning diversity and equality laws will be an integral part of Korean society.
 ‘Third-party harassment’ here refers to harassment of employees by other parties such as customers or sub-contractors. Of course, the LSA is premised on an employment relationship, so any new LSA provision to address such third-party harassment may be ineffective, and would be more properly addressed through separate legislation (such as the Equal Employment Opportunity and Work-Family Balance Assistance Act, which includes third-party harassment within its scope).