I. Introduction

One of the most noticeable recent court rulings is one where the court ruled something 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.
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 details and type of work and other conditions, this discrimination can be considered justifiable.
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, marital status, 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 lower than that of the opposite gender, thus causing a disadvantageous result to one gender over another. 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.


2. Details of Gender Discrimination
Concrete provisions regarding gender discrimination in the Equal Employment Act can be summarized as follows: ① Employers shall not discriminate on grounds of gender in recruitment and hiring. When recruiting and hiring women, an employer shall not present nor demand certain physical conditions, such as appearance, height, weight, etc., or marital status not required for performance of the relevant duties (Article 7).
② Employers shall provide equal pay for work of equal value in the same business. The criteria for work of equal value shall be skills, effort, 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.
③ Employers shall not discriminate on grounds of gender in providing benefits, such as money, goods or loans, etc., in order to compensate their employees aside from wages (Article 9).
④ Employers shall not discriminate on grounds of gender in education, assignment and promotion of their workers (Article 10). ⑤ Employers 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 termination (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 against 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 Ministry of Employment and Labor (MOEL) 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 is 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.”


2. Related Cases
There are many cases related to discrimination due to nationality.
① A Constitutional Court ruling in 2007 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 arbitrary discrimination.

② Supreme Court ruling in 1995: Foreign worker “A” from Thailand, who came to Korea under a trainee working visa, was seriously injured while working beyond the permitted sojourn period. Foreign worker A applied for compensation from the Employee Welfare Corporation for medical treatment, but was rejected by the Corporation as foreign worker A was an illegal migrant worker working illegally. However, the Supreme Court ruled that even though illegal employment is clearly an act warranting punishment, the work already provided is actual performance that makes the worker subject to the protection of labor law. Accordingly, illegal foreign workers may apply for and receive Industrial Accident Compensation Insurance.

③ Supreme Court ruling in 2015: Some illegal foreign workers living in Seoul and Gyeonggi Province submitted a report of their establishment of a labor union to the Seoul Regional Labor Office on May 3, 2005, but their application was rejected due to their illegal status. Even in the courts there have been disputes on whether a labor union of illegal foreign workers is permissible or not, but the Supreme Court ruled on June 25, 2015 that it was.

IV. Religious Discrimination
1. Criteria for Judgment
The Labor Standards Act regulates that no employer shall give discriminatory treatment in relation to working conditions on the basis of religion, which includes specific religions, religious beliefs, world view, socialist creed, or political line of a particular political party, etc.

However, with the exception of purpose-based companies organized to carry out business directly connected to specific ideas, it is not deemed a violation if there is discrimination regarding an employee whose behavior is in conflict with the purpose of the company he or she works for.

2. Related Cases
① In 2005, the Constitutional Court ruled as justifiable dismissal in cases where the employee behaved in violation of the purpose of his/her employing company. “Whether there is justifiable reason or not when an employer intends to dismiss an employee shall be considered concretely for each individual case. Such general reasons are that the employee’s violations should be serious enough to make it very difficult to maintain continuous employment relations with the employer, which means that the employer cannot expect any further work from the employee concerned due to the serious violation. Justifiable reasons for dismissal include: the employee’s work performance was seriously inferior to his/her occupational abilities; the employee cannot work due to some illness; and, exclusively for purpose-based companies organized to carry out business directly connected to specific ideas, the employee disagrees with the purpose of his/her employing company; and others.

② In 1994, the Supreme Court ruled that an employee’s behavior that violates the purpose of his/her employing company is deemed a justifiable reason for dismissal. “Even though the employee’s real estate speculation, which was the reason for disciplinary dismissal, seemed like some minor misconduct in his personal life, in comprehensive consideration of the purpose of his employer, the Urban Development Corporation, which was established to create for citizens housing security and improve welfare through residential land development and supply, housing construction, etc., and the work scope of the employee engaged in real estate-related compensation, this real estate speculation by the employee could cause very negative effects of the social evaluation for the Urban Development Corporation.”

V. Social Status

1. Criteria for Judgment
Social status, which is a position formed over a considerable time and part of social evaluation, refers to a social position that one cannot adjust easily through one’s intention or performance.

A judicial ruling on June 19, 2016 explained, “Social status is a position formed over a long time in society and part of social evaluation, and refers to the social classification that a specific group of employees cannot adjust through their intention or performance.”

2. Related Cases
Recently, there has been some headline news on a judicial ruling regarding a case of discrimination owing to social status. The employees concerned were transferred to non-fixed term employment and then placed in their own group after being hired for temporary positions. Unlike regular employees, the workers in this group were not eligible for title promotions. Different salary regulations were applied, and they were also ineligible for housing or family allowances, or meal expenses. The employees concerned took legal action for the unpaid allowances, stating that this discrimination was null and void due to it being a violation of equal treatment according to Article 6 of the Labor Standards Act. The court ruled, “Besides job, the type of work and position can be part of social status if they require social evaluation or are social classifications that an employee cannot change through intention or performance.” The court judged that being part of a group of workers with non-fixed employment status was part of social status, adding, “With the exception of salary regulations, the same rules of employment and personnel regulations apply to non-fixed term employees. The quantity, quality and difficulty of their work and their contribution to the company were not less than their regular employee counterparts, so this discrimination amounts to a violation of Article 6 of the Labor Standards Act.”

VI. Conclusion

The Labor Standards Act contains a penal provision for discrimination on the basis of gender, nationality, religion or social status, and an employee can seek an order for correction of such discrimination through a petition or making a claim with the MOEL. Hereby, the employee can also retroactively claim that lower wages were paid in a discriminatory manner. On the other hand, a particularly notable point in the prohibition against discrimination on the basis of gender is that an employer shall not discriminate on such grounds in recruitment and hiring of employees. Also, it can be deemed as indirect discrimination when an equal number of men and women are employed at entry level, but this is not the case at the managerial level. The provision against discrimination on the basis of nationality has become a social issue due to the increased number of foreign employees, while regarding discrimination on the basis of religion, more cases have been related to purposed-based companies rather than against particular religions. Finally, in discrimination on the basis of social status, the courts recently ruled discrimination exists against social status when an employer sets up a certain working group only for those with non-fixed employment status.