– Heightened Duty of Employers to Prevent and Address Sexual Harassment in the Workplace

The rapidly spreading #MeToo movement has highlighted the issue of sexual harassment in the workplace, calling for meaningful action to strengthen laws against sexual harassment and implement further measures to prevent sexual harassment in the workplace. The Korean government has demonstrated its active support of the movement by joining in on the social dialogue and updating the Equal Employment Opportunity and Work-Family Balance Assistance Act (the “Equal Employment Opportunity Act”) in November 28, 2017 to include, amongst other things, tougher penalties for employers who fail to investigate sexual harassment allegations. Effective as of May 29, 2018, employers must ensure compliance with the amendments to the Equal Employment Opportunity Act. In addition, the Ministry of Employment and Labor announced its plan to require mandatory review of sexual harassment issues in the workplace in all forms of labor inspections.

We provide below an overview of the key amendments to the Equal Employment Opportunity Act and a list of the expanded scope of employer obligations regarding sexual harassment (and sexual violence) in the workplace.

1.Sexual harassment laws and the definition of sexual harassment in the workplace

 

Equal Employment Opportunity Act

Other laws

 

o  Equal Employment Opportunity Act (Article 2, Subparagraph 2) defines sexual harassment in the workplace as:

 

A situation where:

 

-   An employer, a superior or a worker, through his/her position at work or who, in a work-related situation; 

 

-   Makes another worker experience feelings of sexual humiliation or aversion by using sexually charged language or behavior; or 

 

-   Causes disadvantages in employment (i.e., working conditions and employment under the amended law) for having refused the sexual approach or request.”

 

o  Sets forth employers’ obligations, administrative fines, and penalties for violations of such obligations.

 

o  Seoul High Court recently held that discriminatory remarks pertaining to gender roles (e.g. “Go home and be a full-time homemaker”) may constitute sexual harassment in the workplace.[1]

 

 

o  National Human Rights Commission of Korea Act (Article 2, Subparagraph 3-d) defines sexual harassment in the workplace as:

 

A situation where:

 

-   An employer, employee or a worker in the public sector abuses their power or in connection with business affairs;

 

-   Causes the victim to feel a sense of sexual humiliation or disgust by using sexually suggestive language or actions; or

 

-   Causes disadvantages in employment due to refusal to respond to such sexually suggestive language or other demands, etc.”

 

o  Does not set forth employers’ obligations and penalties, but provides measures to be taken for emergency relief in certain cases.

 

 

 

 

 

 

2. Key amendments to the Equal Employment Opportunity Act

Amendments

Penalty

Remarks

The employer is required to provide preventive education regarding sexual harassment in the workplace at least once per year (Article 13(1)).

Administrative fine: KRW 5 million

Administrative fine raised (from KRW 3 million → KRW 5 million)

The employer is required to post or make the content of preventive education on sexual harassment available at all times in a location accessible to all employees so that employees are fully informed (Article 13(3)).

Administrative fine: KRW 5 million

New

Any individual who witnesses or otherwise becomes aware of sexual harassment in the workplace is allowed to report it to the employer (Article 14(1)).

 

-

 

New

Upon receiving a sexual harassment complaint, the employer is required to carry out, without delay, an investigation into the allegations while taking measures to ensure the alleged victim does not experience further humiliation (Article 14(2)).

Administrative fine: KRW 5 million

New

When sexual harassment in the workplace is confirmed, upon the victim’s request, the employer is required to take appropriate measures to protect the victim by offering a change of worksites or paid leave, etc. (Article 14(4)).

Administrative fine: KRW 5 million

New

When sexual harassment in the workplace is confirmed, the employer is required to, without delay, take appropriate disciplinary actions or other similar measures against the perpetrator. In which case, the employer is required to give the victim an opportunity to be heard prior to taking such actions or measures against the perpetrator (Article 14(5)).

Administrative fine: KRW 5 million

 

Partially amended last sentence

 

Disadvantageous measures against the victim or complainant of sexual harassment include:

(1) dismissal or other measures resulting in loss of job or demotion;

(2) disciplinary actions or other similar measures;

(3) not assigning work or other duties against the victim’s will;

(4) discriminating against the victim in performance assessments, reviews or excluding victim from incentives, raises, other privileges, etc.;

(5) restricting opportunities for education or training;

(6) bullying or ostracism; or

(7) other such disadvantageous treatment (Article 14(6)).

Imprisonment for up to 3 years or a fine of up to KRW 30 million

 

Fine raised (from KRW 20 million → KRW 30 million);

 

Added specific examples of disadvantageous measures

 

Strict confidentiality obligations are imposed on any person who investigated the complaint, received a report or participated in the investigation of the sexual harassment complaint (Article 14(7)).

Administrative fine: KRW 5 million

 

New

 

Upon learning of sexual harassment perpetrated by its clients or customers, etc., the employer is required to take appropriate measures to protect the victim by offering relocation or paid leave (Article 14-2(1)).

Administrative fine: KRW 3 million

Administrative fine added

(from recommendation → legal requirement)

3. Summary of expanded scope of employer obligations under amendments to the Equal Employment Opportunity Act

-Obligation to investigate sexual harassment complaints:

The amendments to the Equal Employment Opportunity Act will require employers to promptly investigate, upon receipt, any complaints related to sexual harassment in the workplace (Article 14(2)). Violation thereof will result in an administrative fine of up to KRW 5 million.

Also, the amendments will now require employers to take appropriate measures during the investigation process to ensure the victim is protected from additional humiliation including worksite relocation or paid leave (Article 14(3)).

-Obligation to take disciplinary action or other measures against the perpetrator:

Upon confirmation of sexual harassment in the workplace, employers are required to promptly take disciplinary action or other necessary measures against the perpetrator (Article 14(1)). Violation thereof will result in an administrative fine of up to KRW 5 million.

Also, the amendment will now require employers to first hear the opinion of the victim before implementing any such action (Article 14(5)).

-Obligation to avoid any disadvantageous measures against victims:

Employers must not take any disadvantageous measures against the victim or the complainant of sexual harassment in the workplace (Article 14(2)). Disadvantageous measures include dismissal, demotion, disciplinary action, restrictions on work or duties, discrimination against the victim in performance reviews/promotions, restrictions on education or training opportunities, bullying, ostracism, etc. (Article 14(6)). Employers who engage in such disadvantageous measures will be subject to imprisonment for up to 3 years or a fine of up to KRW 30 million (Article 37(2)-2). Further, if the victim so requests, employers must take appropriate measures to protect the victim by offering relocation or paid leave, etc. (Article 14(4)). Employers who fail to protect the victim will be subject to an administrative fine of up to KRW 5 million.

-Obligation to protect a victim from a client or other third party offender and not to take disadvantageous measures against the victim

When employers learn of or receive a complaint that an employee has been sexually harassed by a client, customer, etc., employers must take specific measures to protect the victimized employee (e.g., changing worksites, reassignment of duties, paid leave, etc.) (Article 14-2(1)), and employers are not allowed to take any disadvantageous measures against the employee on account of his/her complaint (Article 14-2(2)). Any violation of the foregoing will result in an administrative fine of up to KRW 5 million.

-Joint Penalty

Pursuant to Article 38 of the Equal Employment Opportunity Act, the employer will jointly be held liable for offences, including taking disadvantageous measures against victims of sexual harassment, of a representative, agent, or other such employed individual when such offences are done in the course of employment or as part of the job. Accordingly, in the case where disadvantageous measures are taken against a victim of sexual harassment, the Ministry of Employment and Labor will not only investigate the perpetrator, but the representative director of the company. If a violation is confirmed, the perpetrator, representative director, and the employer may be punished in accordance with this joint penalty provision.

4. Recommendations

To navigate the expanded scope of obligations, employers should assess their existing sexual harassment policies and update procedures and internal controls to ensure that they are in compliance with the amended law. As part of this process, BKL can provide the following services:

(1)Investigation and fact-finding:Upon receipt of a sexual harassment complaint, employers must promptly commence an investigation. BKL, with its experience and expertise, is well-positioned to help the employer through this fact-finding process. Through worksite visits, interviews and digital forensics, we will ensure that a thorough and objective investigation is conducted with proper sensitivity to minimize business disruption.

(2)Results of investigation and follow-up measures:If sexual harassment is not established, the parties will be informed of the results and the investigation will be closed. However, if sexual harassment is confirmed, appropriate measures must be taken. Based on our findings, BKL will submit a report on the results of the investigation, including forensic results and our legal analysis. We will provide guidance on the appropriate disciplinary actions to be taken based on company policy, market practice and the current Korean regulatory landscape.

(3)Implementing preventive measures, sexual harassment prevention training and education, and updating company policy:Employers must ensure that proper measures are taken to prevent the future occurrence of sexual harassment in the workplace. BKL can advise the employer on effectively implementing preventive measures, such as training and education and conducting a preventive audit. We can also advise on rehabilitative programs, therapy programs, etc. to provide support to individuals involved in any sexual harassment incident. We will ensure that any and all training and education will be compliant with the requirements of the law and that the employer’s current policies will be up-to-date so that the employer may concentrate on pursuing its business objectives with confidence.