The Legal Institution of Korea for Prevention of Sexual Harassment at Work as a Sex Discrimination

The term “sexual harassment” had not been found in the positive legislation, until the Framework Act on Women Development(WDFA)was enacted in 1995. The judicial court began to use the term “sexual harassment” by the Supreme Court in 1998. After the Supreme Court’s decision, the Seoul Appellate Court in 1999 held that the defendant’s conduct of sexual harassment constituted unlawful act and ordered 5mill. won(USD 4,644) payment to the plaintiff. The liability of employers was recognized by the Seoul District Court in 2002 for the first time. The concept of “sexual harassment” was included in the Gender Equal Employment Act(GEEA) in 1999. The concept of “sexual harassment” in the Act on Ban on Sex Discrimination and Its Relief(SDARA), which existed 1999-2005 was succeeded by the National Human Rights Commission Act(NHRCA). Korea is characterized for tackling the sexual harassment not only from the viewpoint of working environment of workplace, but also from the viewpoint of feminism and further from the human rights. The Government resorts for the prevention, dispute settlement and punishment of the sexual harassment are the Ministry of Gender Equality and Family(MOGEF), the Ministry of Employment and Labor(MOEL) and the National Human Rights Commission(NHRC). Among three resorts of Government institutions, the MOGEF has the responsibility to implement the WDFA. The annual inspection on measures for the prevention of sexual harassment taken by State agencies, etc. is the first mission the MOGEF. The MOGEF is asked to take necessary measures, such as special education for managers,with respect to State agencies, etc. which have taken unsatisfactory measures for the prevention of sexual harassment. The Ministry is required to make public the inspection results in the press, etc. It means that the MOGEF is policy-oriented from the viewpoint of feminism. The GEEWFRSA, which prohibited the sexual harassment at work with a sanction of fine for negligence not exceeding 10 mill. won(USD 9,289), imposed not a few obligations on the employers. They are obliged to conduct education to prevent sexual harassment at work or entrust it to the designated educational institution. It is also the obligation of the employers to take disciplinary measures against the offender. The employers are also required to prevent sexual harassment by the clients. Further the employers have to strive for autonomous dispute settlement, if the workers file report on grievances on the matters of prevention of sexual harassment. The MOEL is apparently oriented from the viewpoint of working environment. The mission of the NHRC on matters of sexual harassment is expected to be comprehensive, as the sexual harassment is regarded as a sex discrimination. With respect to any petition, the Commission may propose to both parties a remedy necessary for the fair resolution and may recommend a compromise. If both parties failed to reach compromise, the conciliation committee may make a decision in lieu of the conciliation. In addition, the Commission may request the Korea Legal Aid Corporation or any other institution to render legal aid to the victims. As the decision of the Commission is directed to fairly settle the dispute from the prospect of human rights, it might be flexible and future-oriented. Since 2005 when the business of sex discrimination was transferred from the MOGE to the NHRC, the cases have been piled up. The NHRC is expected to develop the solution models through an evolution process.