I. Introduction

Recently, one of the most noticeable court rulings is one where the court ruled as discrimination by social status in a case where the employer made up a particular group of only non-fixed employees recently transferred and treated them unequally to their regular employee counterparts. This verdict has increased public interest in matters related to equal treatment. The Constitution of the Republic of Korea (Article 11-①) stipulates, “...there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status.” In aligning with this, the Labor Standards Act contains a provision on equal treatment which includes the additional item of ‘nationality’, stipulating, “No employer shall discriminate against employees on the basis of gender, or give discriminatory treatment in relation to working conditions on the basis of nationality, religion or social status.” Other provisions on equal treatment are gradually being introduced in other Acts as social need arises to do so, regarding irregular employment status, age, disability, and foreign workers, etc.
There are two principles the Court uses in identifying the criteria for determining whether discriminative treatment, which it defines as “the same thing treated in a different way, or different things treated in the same way”, is justifiable or not. First, in order for a situation/action to be considered discriminative treatment, the primary requisite is that the employees claiming discrimination should be basically in the same working group with the target comparison employees.¹⁾ Second, even though the employees claiming discrimination and the target comparison employees are working in the same workplace and at the same kind of job, if the employer discriminates in their working conditions based upon reasonable criteria in consideration of the detail and type of work and other conditions, this discrimination can be considered justifiable.²⁾ In this article, I would like to review the criteria for judgment of whether discriminative treatment is justifiable or not, and related cases.

II. Gender Discrimination

1. Criteria for judgment

Gender discrimination is prohibited under Article 11(1) of the Constitution, with a more detailed explanation given in Article 32(4): “Special protection shall be accorded to working women, and they shall not be subjected to unjust discrimination in terms of employment, wages and working conditions.” Article 6 of the Labor Standards Act prohibits gender discrimination and includes penalties for violations. In particular, the Equal Employment Act enacted in 1987 defines gender discrimination (Article 2) as follows:
First, the term “discrimination” means that an employer applies different hiring and working conditions to employees, or takes other disadvantageous measures against them without justifiable reason on account of gender, marriage, status within the family, and whether or not they are pregnant or have had a child, etc.
Second, it is discrimination even if an employer applies the same hiring or working conditions, but the number of one gender to whom the conditions apply is considerably less than that of the opposite gender, thus causing a disadvantageous result to the opposite gender. This reflects the fact that indirect discrimination due to corporate culture can be deemed as gender discrimination.
Third, provided that this shall not apply to cases involving any of the following items: ① Where a specific gender is inevitably required in view of the nature of the duties; ② Where measures are taken to protect maternity, such as during pregnancy, childbirth or breastfeeding by female employees, etc.; or ③ Other cases where affirmative action measures are taken under this Act or other Acts. These exceptions are designed to avoid any reverse discrimination.³⁾

2. Details of gender discrimination

Concrete provisions regarding gender discrimination in the Equal Employment Act can be summarized as follows: ① An employer shall not discriminate on grounds of gender in recruitment and hiring of employees. When recruiting and hiring female employees, an employer shall not present nor demand certain physical conditions, such as appearance, height, weight, etc., and marital status not required for performance of the relevant duties (Article 7). ② An employer shall provide equal pay for work of equal value in the same business. The criteria for work of equal value shall be skills, efforts, responsibility and working conditions, etc. required to perform the work (Article 8). ‘Work of equal value’ in judicial rulings means the same work when comparing men and women in the corresponding workplace and nearly the same work in practical terms, or the work of basically the same value as evaluated through objective job evaluations in spite of slightly different jobs. Whether the work is of equal value or not shall be estimated in comprehensive consideration of technology, working conditions, education, career, working period, etc.⁴⁾ ③ An employer shall not discriminate on grounds of gender in providing benefits, such as money, goods or loans, etc., in order to compensate his/her employees aside from wages (Article 9). ④ An employer shall not discriminate on grounds of gender in education, assignment and promotion of his/her workers (Article 10). ⑤ An employer shall not discriminate on grounds of gender in retirement age or whether certain workers are dismissed or designated to retire. No employer shall make a labor contract that stipulates marriage, pregnancy or childbirth of female workers as grounds for resignation (Article 11).

III. Discrimination Based on Nationality

1. Criteria for Judgment

Nationality refers to the status according to the Nationality Act, and discrimination can exist for certain employees such as foreigners without Korean nationality, overseas Koreans, and illegal migrant workers, etc. Recently, discrimination due to nationality has caused significant social issues due to the increased number of foreign workers. Article 22 of the Foreign Workers Employment Act enacted in August 2003 stipulates, “No employer shall discriminate or unfairly treat any person on the grounds that he/she is a foreign worker.” However, this article does not include any penal provisions and only applies to non-professional workers in relation to the employment permit system. Accordingly, the prohibition of discrimination based on nationality follows Article 6 of the Labor Standards Act that “No employer shall give discriminatory treatment in relation to the working conditions on the basis of nationality,” and the penal provisions therein. However, justifiable discrimination is allowed, with the related Labor Ministry Guidelines explaining, “Determining whether discrimination based on nationality exists or not shall require consideration of all related items collectively: whether the discrimination in working conditions was only based on nationality or not; other entire factors regarding the working conditions such as wages and working hours; and in addition, whether discrimination exists that exceeds reasonable criteria for the work.”⁵⁾

2. Related cases

There are many cases related to discrimination due to nationality.
① A Constitutional Court ruling in 2007, in which it stipulated, “Even though industrial trainees with a trainee’s contract provided labor service under the employer’s direction and supervision, they then received wages. In actual relations, as only foreign industrial trainees were excluded from the application of major labor laws without justifiable reason, we find this unreasonable.” The fact that industrial trainees are excluded from some parts of the Labor Standards Act, unlike ordinary employees, is arbitr