Korean labor law: A Case of Sexual Harassment in the Workplace & Lessons Learned

Korean labor law: A Case of Sexual Harassment in the Workplace & Lessons Learned

Bongsoo Jung / KangNam Labor Law Firm

I. Introduction

The most important step to handling workplace sexual harassment is to prevent it in advance. When it happens in reality, it is also important to deal with it appropriately in accordance with on-the-spot situations. There is a legal procedure for handling sexual harassment cases, but the particular case in this article was greatly influenced by the emotional state of the victim and the offending employee. Accordingly, it is necessary to seek a reasonable solution through appropriate actions, rather than only following the legal procedures by the letter.

The case discussed herein was not well handled and resulted in resignation of both the victim and the offending employee, causing direct loss to the related parties through the loss of their jobs, and to the company through the loss of the personnel in question. In the interest of preventing this kind of disruptive outcome, we will look at the problem-solving procedures in the case, review the lessons learned and consider methods of improvement. ?

?

II. Sexual Harassment Case

?

1. Summary of the case

On August 5, 2014, a woman who had been employed by the company in April 2012 and had worked at the company’s Suwon site since then submitted a written complaint of sexual harassment by her supervisor. The Personnel Manager asked for legal opinion from a labor attorney, who read the female employee’s statement and advised problem-solving procedures for the company to follow.

The labor attorney did not recognize the seriousness of the case, and focused upon prevention of recurrence through protection of both the offender and the victim. In the meantime, the female employee and her colleague submitted their resignations as they were afraid of revenge from the offending supervisor (the site manager). Then, because of their resignations, the offending supervisor was also forced to resign. As a result, the company lost significant resources: two female staff employees and one site manager.??

?

2. Details of sexual harassment

The sexual harassment consisted of physical and verbal harassment, as detailed in the female employee’s statement as follows.

?

?(1) Physical sexual harassment ??

?At the end of 2013, my hair was down and hanging to my shoulders, and the site manager, saying my hair needed trimming, touched my neck with his fingers and combed them through my hair. It felt instantly creepy and I felt sexually humiliated.??

?

(2) Verbal sexual harassment

- Not long time after being hired by the company, a male colleague and I were sweeping the building in preparations for auditing, when the site manager came over to us, looked at me and said to my colleague, “You guys are sweeping like feeling a virgin’s breast.” His remark really shocked me. ?

- The site manager often commented about my make-up “You need to put on more make-up and wear more lipstick.” Recently he said to me in front of some other colleagues, “You seem to have let everything go. I mean since you got married, you really don’t put on make-up nor dress well at all. Put on some make-up before you come to work.” He even said to other female colleagues with a laugh, “Please teach her how to put on make-up properly.” I felt very displeased and angry. ?

- Two months ago, while a female worker in the same office was listening, the site manager said smilingly to a male worker, “Women in the US air force do everything by themselves. In the hot summer some women only wear undershirts, moving oil drums and swinging their full breasts.”

- On August 5, 2014, while the female employees were talking to each other, the female victim of the harassment said to her supervisor, “I have a headache and feel sick.” The site manager responded, “You must feel sick because you’re having your period.” Both my colleague and I were shocked at his statement.?

?

III. Handling of the Case by the Company

?

1. Questions and answers regarding the issue

The company asked three questions of the advising labor attorney regarding this sexual harassment on August 6, 2014.

<Question 1> Can sexual language or unnecessary physical contact used by this site manager be considered workplace sexual harassment?

<Response> Judgment of sexual harassment (Supreme Court ruling on June 14, 2007, 2005 du 6461): ‘Sexual language and behaviors in becoming ‘workplace sexual harassment’ in accordance with Article 2(2) of the Equal Employment Act refer to physical relations between a man and a woman or physical, linguistic and visual behaviors in relation to the male or female physical appearance. These behaviors mean that a normal and average person would feel sexually humiliated or offended if that person were in the victim employee’s situation in view of the social community’s healthy common sense and socially accepted notions. The condition in which these behaviors are considered sexual harassment does not require the offender’s sexual motivation or intention, but shall consider the relation with the victim employee, place and situation where such behaviors happened, the counterpart’s explicit and presumptive reactions and details of such behaviors, characteristics and degree of the behavior, whether such behavior was one time only or repeated, and other concrete situations. So, such behaviors should be ones which a normal and average person in the same situation would also feel sexually humiliated or offended objectively. In such cases, these behaviors should be admitted as sexual harassment that resulted in the counterparty feeling sexually humiliated and offended. ?

In this sexual harassment case, the victim employee felt humiliated by her supervisor’s sexual language and behavior, which furthermore caused a feeling of inferiority and disgust by the victim. In considering a normal person’s reaction, such language and physical behavior would cause similar feelings. Therefore, the sexual language and other details mentioned by the female employee would be considered workplace sexual harassment.

?

<Question 2> How can the company deal with a reported case of workplace sexual harassment?

<Response> According to the Equal Employment Act, “1) An employer shall take without delay disciplinary measures or other equivalent actions against the sexual harasser if an occurrence of sexual harassment at work has been verified. 2) No employer shall dismiss or take any other disadvantageous measures against a worker who has been the victim of sexual harassment at work or has claimed to have been sexually harassed (Article 14). If the Company violates the aforementioned items, the employer shall be punished by a fine for negligence not exceeding 5 million won (Article 39).”?Accordingly, when receiving information on sexual harassment at work, the employer shall interview the parties concerned, investigate the case, confirm the actual facts, and then take appropriate measures such as disciplinary action and report the outcome to the employee who was sexually harassed.

<Question 3>?How can the company deal with this case in a reasonable manner?

<Response> The company shall take appropriate action for cases of sexual harassment in which the victim employee shall be protected from any further damage and the offender punished through acceptable disciplinary action. The company shall also work to prevent recurrence through employee education on sexual harassment.

I would like to suggest a level of disciplinary action for this case as salary reduction (10% of one month’s salary) and a written warning letter stipulating that any repeat will result in serious disciplinary action like dismissal. It is also advisable to have the labor attorney who is handling this case to give a presentation on prevention of sexual harassment at your Suwon site.

?

2. Email conversations between the victim employee and the Labor Attorney

From: Victim employee;?To: Labor Attorney;?Sent: August 20, 2014 (Wednesday)

On August 12 I submitted my resignation, and on Thursday, August 14, the site manager held a general meeting in an attempt to excuse his behaviors and said to all attending employees that he did not have any intention to harass the female employees. At that meeting, he outlined point by point what I explained in my statement, explaining that he did not mean to harass me.

?What angered me is that the site manager apologized to me and even sent a message that he was a stupid man and he was so sorry for his behaviors, but in front of other employees, he excused himself by skipping over the worst incidents and telling people that I was hypersensitive about nothing out of the ordinary.

From: Labor Attorney;?To: Victim employee;??Sent: August 20, 2014 (Wednesday)

I apologize that I have been unable to protect you better. I think the company made mistakes in handling this case. First of all, the most important thing is to protect the victim employee…. I wish you had contacted me before submitting your resignation.

From: Victim employee;?To: Labor Attorney;?Sent: August 20, 2014 (Wednesday)

?The Personnel Team continuously recommended that I not submit my resignation. However, frankly speaking, I was disappointed to hear that the level of punishment would only be salary reduction (10% of one month’s pay). I was not sure whether I could continue to work with the site manager, so, after discussing it with my family, I decided to resign.

From: Labor Attorney;?To: Victim employee; August 20, 2014 (Wednesday)

It is very sad. Now, the site manager has resigned and you also quit. So, everyone related to this has become a victim. My expectations were that I could protect both him and you, but I was unable to protect anyone at all. I think that I should take more preventive action to avoid a repeat of this case.

As time passes, it will be difficult for people to adjust to the changed environment. I would like to recommend that you reconsider your decision to quit.

From: Victim employee;?To: Labor Attorney;?Sent: August 26, 2014 (Tuesday)

The reason why I quit was not because the Labor Attorney could not protect me. When I officially submitted my statement to the Personnel Team, the other female employee was also planning to submit her statement, but the Head Office persuaded me not to make this case public until obtaining more tangible evidence, because the company needed the site manager during contract-renewal with the client company. As I understood the company’s situation, I felt it would be hard to continue to work for this company. ?

From: Labor Attorney;?To: Victim employee; Sent: August 26, 2014 (Tuesday)

I feel very unhappy to see the tragic results of this sexual harassment case. I have always thought that the offender should be given a chance and punished lightly, but now I think this is not always best. Because of this case, I realize I need to consider the victim employee’s situation and try to help the victim employee more.

?

IV. Lessons Learned & Opportunities for Improvement ??

Sexual harassment cases cause considerable damage not only to the individual employees concerned, but also the company. This company has also turned to annual education to prevent sexual harassment, but this has not prevented it effectively. Rather, this company spent energy on covering up the case more than on dealing with it appropriately.

The labor attorney in charge could not give sufficient advice as he did not fully understand the situation. His advice was designed to protect both the victim and the offender together, but could not protect anyone as three persons related to this case resigned. As the company failed to adequately consider the victim’s position and requests, two victim employees resigned. The offender too was forced to resign due to his moral responsibility. As can be seen by reviewing the email conversations between the victim employee and the labor attorney handling the case, it is regrettable that the company failed to handle things effectively, and that the labor attorney did not fully appreciate the victim employee’s situation. ?

On August 27, 2014, the labor attorney in the case above gave a presentation on prevention of workplace sexual harassment at the Suwon site where the sexual harassment occurred. He explained the definition, the types, the judgment criteria for determining sexual harassment, and the employer’s legal obligations, all of which was taken very seriously in light of the case the participants all knew about. As the outcome of this case reveals, preventive action through education on sexual harassment is the best policy, while knowing how to appropriately handle any cases that do occur will do much to realize as little disruption as possible to both the company and the victim employees.?