“성별 등을 사유로 한 차별” 개념의 의미와 입증

The Korean Equal Employment Act §2(1) prohibits discrimination because of sex, marital status, status in family status, pregnancy or childbirth etc. without any reasonable reasons. This paper aims to redefine the meaning of “discrimination because of sex” and the scope of “the reasonable reason to discriminate”. If “the reasonable reason” is interpreted to allow a general justification in direct discrimination case, it will lead to too great a risk that stereotyping and societal expectations will be reinforced through judgments. Therefore “reasonable reason” should be read only to mean three exemptions provided in §2(1). The law allows differential treatment because of sex etc. in case workers of specific gender are inevitably needed due to the nature of the jou, in case measures are taken to protect the maternity of working women, and in case special measures are taken to provide affirmative action. Particularly the first exemption should be interpreted to be strictly limited defences linked to the nature of the job concerned. I suggest to refer to the concept of Bona Fide Occupational Qualification in U.K. and U.S.. The second issue is the meaning of “because of”. In direct discrimination cases, it doesn't matter whether the challenged employment reason is fair or not. Simply it does matter whether there is any discrimination “because of” or “on the ground of” prohibited personal characteristic. So it is not surprising that there has been long history of controversy on the meaning of “because of”. This paper searches for the appropriate interpretation of “because of” through examining the case law of U.S., U.K., and Korea. I argue that the 'intent approach' should be eliminated entirely and replaced by 'causation approach'. 'Causation approach' focuses on whether prohibited factor such as sex, race played a certain role in the challenged employment decision. 'But for' causation is one of the way to decide the causation in discrimination case.