LABOR CASES

Women and The Aged

Sexual Harassment at Work and its Related Cases

I. Questions and Answers concerning Sexual Harassment at Work
 reference: Publication of the Ministry of Labor 『Sexual Harassment at Work, from its preventions to countermeasures』(March 2001)

1. Q&A designed to understand the concept of sexual harassment at work

Q) Does sexual behaviors of the customer’s agents or employees from the affiliate company constitute sexual harassment at work?
A) It is difficult to define sexual harassment by people, that is, by those related to customer‘s companies or by those within the company in which one works in. However, if an employer, a senior, or an employee makes the environment conducive for sexual harassment or demands the victimized employee to tolerate sexual harassment, it can constitute sexual harassment at work and the employer may be held liable.

Q) Is it possible for sexual harassment to occur in the process of job interview before an employee is formally hired?
A) Yes, it is possible. An interviewee in the process of job interview for employment is a potential employee. It can thus constitute sexual harassment when the interviewer causes the interviewee to feel sexually humiliated, when the interviewer make any verbal or physical conduct of a sexual nature to the interviewee or makes sexual approaches/requests to interviewee.

Q) Is it possible for a female to be a sexual harasser?
A) Generally sexual harassment at work is committed by male rather than female but it may also be possible at times for such offences to be committed by a female to a male, a female to a female and a male to a male. For example, it can constitute sexual harassment when a female superior sexually harasses a male subordinator against his wishes.

Q) Can an hourly or daily rated employee be protected against sexual harassment at work?
A) The Equal Employment Act is applicable to all employees, including hourly and daily rated employees, working at a business or workplace with five or more employees. As such, hourly or daily rated employees working in a workplace with five or more employees can be protected against sexual harassment at work. For hourly or daily rated employees working in a workplace with four or less employees, the ‘Gender Discrimination Prohibition and Remedy Act’ which applies to workplace with four or less employees provides them with such protection.

Q) If the victimized employee reacts to verbal or physical conducts of sexual nature passively / silently, can it still be regarded as sexual harassment?
A) Yes, it can. For an example, due to lack of social experience, a victimized employee may be under the impression that sexual harassment is generally acceptable and thus tolerated passively without apparent sign of rejection. But as he/she gradually felt sexually humiliated and raised contention against such acts, it can still be regarded as sexual harassment. However it may not be regarded as sexual harassment if the victimized employee explicitly permits the continuance of such verbal or physical conducts of a sexual nature.

Q) If a senior employee displays pictures of overly exposed women on his desktop computer screen, is it regarded as sexual harassment?
A) Except for special circumstances, visual conduct of sexual nature is also regarded as sexual harassment so long as there is a victim resulting from such conducts. Having obscene pictures on one’s own desktop computer screen placed on one’s own table is a personal inclination. Although such a personal lifestyle shows inconsideration to others and hence immaturity, it does not suffice for relation to sexual harassment. However, when such behaviors cause others to feel uneasy and when the harasser pays no heed to victim’s explicit expression of such uneasiness but continues with such behavior, it can be regarded as sexual harassment at work. In that respect, hanging of obscene calendar at a location meant to be seen by women is definitely regarded as sexual harassment.

Q) Does sexual harassment exists only when the harasser carries intention of causing sexual harassment?
A) No, even though the sexual harasser may not be conscious of his sexual harassment act, the victim may feel sexually harassed. Hence, whether sexual harassment exists or not should not be judged based on the harasser’s intention but from the point of view of the victim. However, since victim’s response differs from person to person, the standard of judgment should therefore be based on socially accepted norm of how a reasonable person would react towards such verbal and physical conduct of sexual nature if he/she is in the victim’s situation.

Q) If there is no specifically targeted person for sexual jokes, does it still constitute sexual harassment?
A) Yes, it does. Even though verbal and physical conduct of sexual nature may not be targeted at specific person, it still constitutes sexual harassment if it invokes sexual humiliation or contributes to hostile environment.

Q) Does demand for errands such as delivery of beverages and photocopying of document targeted restrictively at female employees constitute sexual harassment?
A) Sexual discrimination acts, as below, may be regarded as sexual harassment ① Degrading female employees by addressing them as ‘Halmony(grand mother)’, ‘Ajumma’, ‘Yah’, etc. ② Discrimination of roles between the genders such as degrading females’ roles to homemaking, husband-supporting or child-raising whilst glorifying males’ roles as master and authority of home ③ Restricting certain task to be performed by a certain sex, for instance, only female employees are demanded to perform errands such as delivery of tea and photocopying of document.
Notwithstanding the type of job the victimized employee is engaged in, ‘sexual discrimination type of sexual harassment’ basically affects the victim’s will to work and her work efficiency by degrading female employees to roles of home-making and child-raising whilst glorifying male employees to more superior status as home master.
Whether such acts constitute sexual harassment or not very much depends subjectively on the victim’s individual feeling in addition to a standard of judgment based on socially accepted norm of how a reasonable person would react towards such sexual discrimination if he/she is in the victim’s situation. With such a perspective, it remains difficult for Koreans to perceive sex discrimination as a form of sex harassment because until now sex discrimination has been our nation’s socially accepted norm.

Q) Does a one-time verbal abuse of sexual nature constitute sexual harassment?
A) Yes, it does. Under conditional sexual harassment, when such one-time verbal abuse of sexual nature resulted in the victimized employee showing rejection or expressing feeling of displeasure or suffering disadvantages in personnel-related matters, it undoubtedly constitutes sexual harassment. Also, even if the verbal abuse is trivial but if such unwanted behavior is repeated to the extent of causing sexual humiliation or affecting work efficiency, it can constitute sexual harassment.

2. Q&A concerning employer’s duties in relation to sexual harassment at work

Q) Does distribution of company’s papers or brochures suffice as training on preventing sexual harassment?
A) In implementing training on preventing sexual harassment, it is a good method to create awareness about sexual harassment to company’s managers or employees by distributing company’s papers or brochures. However, such method should be used as a supplementary measure. At the very least, there should be various forms of trainings such as employee seminars, regular meetings, department-level trainings and audiovisual educational t

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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