Reasonable person standard
Korean society is increasingly aware and intolerant of sexual harassment in the workplace. As standards change, companies operating in Korea should understand their duties both to protect and to educate their employees. They should also be aware of the consequences if they fail to do so.
The Equal Employment Act prohibits sexual harassment in the workplace. Under the act, a person commits sexual harassment in the workplace when he or she uses sexually charged behaviour or language to humiliate or offend a fellow employee. Non-explicit conduct, such as placing an employee in a disadvantageous employment position because the employee did not respond to sexual advances, is also a form of sexual harassment.
In Korea, it is very common for employees to socialise outside the workplace after work hours. In some respects, these gatherings are considered an extension of the workplace, especially for the purpose of evaluating workplace sexual harassment. Most incidents of workplace sexual harassment actually occur at after-work gatherings.
Reasonable person standard
The Supreme Court has established a reasonable person standard to examine 'sexually charged behaviour' under the Equal Employment Act. According to this standard, physical contact, sexual comments or conduct that sexualises the female body, for example, constitutes sexually charged behaviour if it would cause offence or humiliate an ordinary, reasonable person. Court precedents and the National Human Rights Committee have established that sexual harassment can be easily recognised (ie, if the reasonable person standard is easily met).
The subjective intent of the accused is irrelevant in principle. However, the court may examine the context in which the behaviour occurred, such as the relationship between the parties, the ages of the parties, the place and circumstances in which the alleged harassment occurred and the victim's apparent reaction.
Korean law prescribes serious remedies to deter sexual harassment in the workplace. The Equal Employment Act does not impose criminal penalties on a person who commits workplace sexual harassment. But if workplace sexual harassment is conducted through violence or intimidation, the wrongdoer may receive imprisonment for up to 10 years under the Criminal Act or be fined up to KRW15 million (approximately $15,000). Additional criminal penalties may also apply.
Employers also face serious penalties if they fail to implement proper preventive measures or if they do not respond appropriately to an employee's workplace sexual harassment claims. Besides this legal aspect, employers should note that incidents of sexual harassment in the workplace can also seriously damage their reputation, especially for foreign invested enterprises. Victims may resort to contacting media outlets to bring attention to their situation, especially if they feel there has not been an appropriate response from the employer. The National Human Rights Committee, which is a national governmental body, also has the authority to impose a corrective order on an employer after receiving a complaint of workplace sexual harassment from a victim.
Under the Equal Employment Act, an employer must provide education programmes on sexual harassment prevention to its employees. The programme must be held at least once a year. Among other things, the programme should seek to educate employees on the following subjects:
- relevant laws concerning workplace sexual harassment;
- company standards and procedures for investigating sexual harassment claims;
- relief programmes for sexual harassment victims; and
- punitive measures and legal actions that the employer may take against wrongdoers.
Many employers conduct annual workplace sexual harassment training by holding group meetings with live instruction. To accommodate the different sizes and characteristics of businesses, employers may conduct training through electronic means, such as internet training sessions. An email jammed with information is usually insufficient, as is a mere announcement on a bulletin board.
For businesses with fewer than 10 full-time employees or businesses that have employees of only one sex, less onerous requirements apply to workplace sexual harassment prevention training: emails or bulletin board announcements may suffice. But in all cases, if an employer fails to provide adequate sexual harassment prevention training to its employees, it may be subject to a fine of up to KRW3 million (approximately $3,000).
When an employee makes a claim, the employer has a duty to respond without delay and, when appropriate, take the necessary disciplinary action against the wrongdoer. Thus, human resource managers and other personnel must, among other steps, be trained to take claims seriously by confronting alleged wrongdoers and bringing the alleged incidents to senior level management. This is often difficult in Korea, where there is sometimes a tendency for mid-level management to avoid confronting the behaviour of high-ranking or older employees due to cultural norms.
Employers can also face damaging criminal penalties. If an employer fails to respond appropriately, it may face a KRW5 million (approximately $5,000) criminal fine. If an employer takes punitive action against a victim, the employer will face an even higher criminal fine of up to KRW20 million (approximately $20,000).
Unwanted sexual advances and inappropriate verbal and physical conduct of a sexual nature can create a toxic work environment that is inefficient and harmful. More importantly, employees have the right to feel safe and secure in their workplace, and failing to help secure this right can incur serious administrative and criminal penalties that can permanently damage an employer's image. Employers are recommended to re-examine sexual harassment prevention policies to ensure that appropriate education and preventive measures have been implemented.
For further information on this topic please contact Hee-Chul Kang or Sang Wook Cho at Yulchon by telephone (+82 2 528 5200), fax (+82 2 528 5228) or email ([email protected] or [email protected]).