면접 시 장애 관련 질문의 ‘장애인차별금지법’상 차별행위성* ― 대법원 2023. 12. 28. 선고 2023두50127 판결에 대한 평석 ―

The Supreme Court Decision 2023Du50127 decided December 28, 2023, which is the subject of this paper’s review ruled that if an employer seeking to hire a disabled person treats disabled applicants unfavorably by asking questions about their disabilities unrelated to the job during the interview for the hiring process, this constitutes discriminatory acts under Article 4(1)1 of the Act on the Prohibition of Discrimination against Persons with Disabilities and Remedy against Infringement of their Rights (hereinafter referred to as the “Act”). In the case of the above Supreme Court Decision, it was relatively clear from the facts that the disability-related questions asked to the disabled applicant during the job interview were not related to the job. However, in actual specific cases, it may not be easy to determine whether the disability-related questions asked in the hiring process for persons with disabilities are related to the job. The ruling of the above Supreme Court Decision is not to declare that disabled applicants should not be asked any questions related to their disability during job interviews. This is because, from the perspective of disabled applicants, an interview that does not ask any questions related to their disability may deprive them of the opportunity to explain and demonstrate that they are fully capable of performing their duties, regardless of their disability. It is also undesirable to hinder the employment of persons with disabilities by using so-called hidden negative and passive hiring standards that operate to discourage the hiring of persons with disabilities by excluding them from employment based solely on their appearance, disability level, or disability-related medical records without any opportunity for explanation. In that sense, it is no small significant that the second trial court judgment of the above Supreme Court Decision ruled on the guideline on how to ask disability-related questions of disabled applicants by citing the manual for interviewers of civil service applicants with disabilities. However, in order to alleviate difficulties in interpreting the provisions of the Act and to enable effective enforcement in accordance with the legislative intent and purpose, certain principles regarding the method and content of disability-related questions in job interviews for the disabled need to be set forth, at least in the form of administrative rules such as directives, established rules, and public notices, to ensure that disability-related questions related to whether or not a disabled applicant is capable of performing the job are asked in a reasonable manner and within reasonable standards. The first and second trial court judgments of the above Supreme Court Decision were mixed as to whether the defect of deviation from discretion and abuse of discretion caused by non-job related disability questions in the initial interview was healed by the additional interview. It is difficult to evaluate that the additional interview was a supplementary act conducted for the purpose of healing the defects of the initial interview, so the second trial court judgment and the above Supreme Court Decision not recognizing the healing of the defects are valid. In addition, although it was not an explicit issue in the above Supreme Court Decision, this paper reviewed the issue of eligibility for the lawsuit to revoke the rejection of the disabled person's employment application related to this case, the issue of failure to provide pre-interview training for interviewing applicants with disabilities, and the related system improvement plan.