Ⅳ. Problems and Harms Caused by Sexual Harassment Kim El-lim, "Sexual Harassment: Law and Dispute Resolution Cases," Episteme, 2023, pp. 47-106.

1. Problems related to sexual harassment

Sexual harassment is a complex issue that arises from structural problems such as the abuse of dominant power and authority within hierarchical structures, patriarchal social structures, and organizational cultures. It poses negative effects on labor, including infringements on workers' rights, decreased motivation and performance, deteriorating work environments, and increased labor-management conflicts. It also intersects with industrial accidents, human rights concerns, and educational issues. Furthermore, disputes related to sexual harassment exhibit trends and challenges in terms of escalation, prolonged duration, collective impact, hardening of positions, societal problematization, and legal disputes.

(1) Structural factors in the occurrence of sexual harassment
1) Abuse of authority and misuse of power in hierarchical structures
When analyzing data from surveys and legal cases related to sexual harassment, it can be observed that sexual harassment often occurs in environments with strong hierarchical structures, such as workplaces, schools, public institutions, the military, healthcare, the arts, and sports, where individuals in positions of authority misuse or abuse their power against those in vulnerable positions. For example, in workplaces, sexual harassment is frequently reported against irregular workers who are particularly vulnerable.
The problem with hierarchical and authoritarian structures is that it is difficult to prevent the abuse of power by those in superior positions, and victims often find themselves in situations where they cannot resist due to fear of reprisal, despite suffering unjust harm. The use of the term "sexual humiliation" in Korean laws, precedents, and decisions related to sexual harassment indicates the consideration for such situations.
From this perspective, sexual harassment can be considered a form of "power-based sexual assault" or "sexual crimes using a superior position" where socially and economically privileged individuals exploit and harass socially disadvantaged individuals, akin to “harassment by those in power.”

2) Patriarchal social structures and organizational culture
Sexual harassment occurs predominantly against women in patriarchal social structures and organizational cultures where men hold superior positions. In incidents recognized by the National Human Rights Commission, 95.4% of perpetrators were men and only 4.5% were women. National Human Rights Commission, "Compilation of Cases for Corrective Recommendations on Sexual Harassment" (Appendix: Statistics on Sexual Harassment Incidents), Vol. 9, July 2020, p. 382.
Of the 131 court cases that acknowledged sexual harassment by professors, the gender of all perpetrators were men. Only six court rulings—related to three incidents—showed that the victims were male students, and in the remaining 125 cases (95.4%), all victims were women. Kim, Elim, "Legal Disputes on Professor's Sexual Harassment," Journal of Law, Vol. 20, No. 3, Ewha Law Research Institute, March 2016, p. 292.
Also, court rulings related to sexual harassment and violence against university students showed that all perpetrators were men, except for three cases involving male students. All other victims were women. Kim, Elim, "Legal Disputes on Sexual Harassment and Violence against University Students," Gender Law Journal, Vol. 3, No. 1 (Total No. 24), Korean Association of Gender Law, July 2021, p. 9.


(2) Sexual harassment and human rights, labor and education
1) Violation of human rights
Sexual harassment violates human rights, such as the right to dignity, sexual self-determination, and equality. The right to dignity and value as a human being is the right to pursue happiness, as stipulated in Article 10 of the Constitution of the Republic of Korea, which states, "All citizens shall enjoy the basic rights inherent in human beings, and it shall be the duty of the State to confirm and guarantee the inviolable basic rights of individuals." Sexual self-determination refers to the right and freedom to make decisions and the right to act on matters related to sexuality without being objectified against one's own will. Although not explicitly stated as a fundamental right in the Constitution, the Constitutional Court and the Supreme Court recognize it as a basic right of citizens according to Article 10 and Article 17 of the Constitution. Sexual harassment violates the right to sexual self-determination, which is the right to decide on sexual matters without being subject to unwanted sexual behaviors. Furthermore, sexual harassment is a discriminatory action that violates the right to equality, particularly targeting one gender, especially women.

2) Workplace sexual harassment, labor and industrial accidents
Workplace sexual harassment leads to infringing on labor rights, deteriorating the working environment, and increasing the number of labor disputes, as well as issues related to industrial accidents.
Sexual harassment infringes rights that are related to work, by directing unwanted sexual behaviors at the victim in relation to work or using one's position to do so. The Constitution states, "All citizens have the right to work" (Article 32, paragraph 1). This right to work (labor right) includes not only the right to have employment opportunities, but also the right to be treated fairly and with dignity at work, and the right to work in a safe and pleasant environment. Sexual harassment unjustly and unreasonably affects the opportunities, treatment, and evaluation of victims in their work, thereby infringing on their right to be treated fairly and with dignity at work.
Sexual harassment causes physical, psychological, and mental suffering. It also infringes on a victim’s human rights and gives them work-related stress. Unless the perpetrator of sexual harassment is fired, resigns, or is transferred, the victim has to face the perpetrator and work in the same workplace, which aggravates the harm. As a result, the victim's motivation to work is reduced, and productivity and performance are compromised. In addition, sexual harassment creates a hostile and uncomfortable working environment and an increase in conflict between the victim, the perpetrator, and other parties involved in work. Furthermore, victims of sexual harassment often suffer mental and physical damage at the workplace, and as a result, their health deteriorates. This often leads to leaves of absence or resignation on the part of the victim. Therefore, sexual harassment can be viewed as equivalent to an industrial accident as it undermines the victims’ labor rights and health rights.
Employers who hire workers for their business have a duty to create a safe, pleasant and human rights-friendly working environment in order to guarantee the labor rights and health rights of workers. If sexual harassment occurs in the workplace due to the employer's failure to take appropriate preventive measures, it becomes a violation of the employer’s duty. On January 15, 2019, the Industrial Accident Compensation Insurance Act was amended to include mental stress over workplace harassment as a cause of "work-related illness" as defined in Article 76-2 of the Labor Standards Act. This recognizes that sexual harassment can cause work-related illnesses and should be addressed as an industrial issue.
In an actual case handled by the Seoul Regional Office of the Korea Workers' Welfare & Safety Agency, on July 7, 2019, a female employee who had previously served as a professor at SK University reported ongoing sexual harassment and violence from the university's graduate school dean. She raised awareness about the incidents both within the institution and externally, demanding action from the university. However, as a result, she faced secondary harm by being denied reappointment, which further deteriorated her mental and physical health. Consequently, she applied for industrial accident compensation insurance, citing work-related illness, and her claim was recognized.
Furthermore, when workplace sexual harassment occurs, the victim's affiliated autonomous organizations (labor unions, women's committees, etc.) collectively raise objections to the perpetrators and management. If the management fails to promptly and appropriately address the situation, labor-management disputes can arise. Moreover, disputes among workers (labor-labor conflicts) frequently arise due to differences in positions based on gender, job roles, or departments, as well as differing positions between individuals or organizations supporting the perpetrators or advocating for petitions and those supporting the victims.

(3) Disputes related to sexual harassment
1) Increase and prolongation of sexual harassment-related disputes
Despite the obligation imposed on all general businesses and public institutions in South Korea to annually conduct education to prevent sexual harassment since July 1999, disputes related to sexual harassment have increased, not decreased. This increase in reported incidents can be attributed to a higher awareness of issues related to sexual harassment, as well as improved conditions for reporting it. In recent years, the Ministry of Gender Equality and Family, the Ministry of Employment and Labor, the Ministry of Culture, Sports and Tourism, and others, have operated sexual harassment and violence reporting and counseling centers to allow victims to anonymously report incidents online. Anonymous reporting systems have also been introduced in universities as well, with the number of reports also increasing. Laws, regulations, and public institution guidelines are protecting victims and prohibiting retaliation against victims of sexual harassment and those who report it.
Sexual harassment disputes are often prolonged and recurring. For example, the first sexual harassment lawsuit in South Korea lasted for about 6 years, while the R Automobile sexual harassment lawsuit lasted for approximately 8 years. Sexual harassment disputes can recur when individuals who have been disciplined for sexual harassment fail to fully recognize the seriousness of their actions and their consequences. After they return to work or school, they eventually engage in sexual harassment again.

2) Collectivization and socialization of sexual harassment disputes
Sexual harassment disputes tend to be intensified through collective responses from organizations supporting victims. This trend has been further amplified by the #MeToo movement that started in 2018. The #MeToo movement refers to a victim bravely revealing that they have been a victim of sexual harassment, which in turn inspires others to disclose their experiences as victims. In addition, the "With You" movement, which seeks to support victims and stand in solidarity with them to resolve the issues related to sexual harassment and sexual assault, has led to the collectivization and intensification of disputes related to sexual harassment and sexual assault.
Sexual harassment disputes often become social issues when victims disclose the incidents to the public through the media or other means, with civic organizations intervening. Particularly, sexual harassment and sexual assault at universities are often sensationalized as social issues through mass media, parliamentary inspection of the institution, and public discussions initiated by civic organizations. For example, in the first sexual harassment lawsuit which involved students from S University, civil rights lawyers, women's organizations, and others actively participated in public discussions and demanded action to address the issue.

3) Legal disputes related to sexual harassment
There has been an increasing trend of legal disputes arising from sexual harassment cases, where the parties affected by sexual harassment don’t go through internal dispute settlement processes at the workplace or school. Instead, they choose administrative or judicial agencies for resolution. Administrative dispute settlements can be initiated by appealing to the National Human Rights Commission, requesting a trial for an administrative ruling, appealing to local employment and labor administrations (labor inspectors), applying to the Labor Relations Commission for relief regarding unfair dismissal (disciplinary action) and correction of discriminatory treatment, appealing to the Appeals Committee to review the appeals of civil servants and public education officials. Judicial dispute settlements can be initiated by filing complaints with the police and prosecutors’ office, filing lawsuits (civil, criminal, administrative) with the courts, or filing constitutional petitions or constitutional complaints with the Constitutional Court.
However, disputes tend to be prolonged until the Supreme Court makes a final ruling, once the victim of sexual harassment utilizes multiple legal dispute settlement systems. For example, the first sexual harassment lawsuit in South Korea, which was filed on October 18, 1993, took six years to conclude after going through five civil trials (first, second and third instance, retrial, and appellate review). The R Automotive sexual harassment lawsuit, which was filed on June 11, 2013, went through the same number of civil trials and lasted for approximately five years until July 23, 2018. Meanwhile, the victim reported that the company took unfair personnel management actions against her and her co-worker after she reported the sexual harassment, which is prohibited by the Equal Employment Act. She filed a complaint with the Ministry of Employment and Labor in February 2014, and filed a criminal complaint with the prosecutor's office in April 2014. The criminal trial in relation to this matter began approximately six years after the complaint was filed, and went through three trials (first, second and third instance) until the Supreme Court rendered a guilty verdict on July 21, 2021, after an 18-month trial. As a result, the R Automotive sexual harassment case lasted for approximately 8 years. In the case of the female professor who experienced sexual harassment and sexual assault by the dean of the graduate school at S University in 2014, the victim pursued various legal actions for about 8 years: two civil and criminal lawsuits, filing a lawsuit for invalidation of dismissal due to failure to reappoint by the university and first and second instance of civil trials, filing a civil lawsuit for damages for defamation and first instance civil trial, applying for industrial accident compensation insurance benefits for illnesses caused by sexual harassment with the Korea Workers' Compensation and Welfare Service, and filing a reinstatement lawsuit against the school.
Long legal disputes often result in prolonged difficulties not only for the parties involved but also for those associated with the parties, such as business owners, because of the process of many investigations, prosecutions, and trials. In legal disputes, it is often the case that even if one party wins, it is still difficult to obtain real benefit because the emotions and conflicts escalate within the involved parties and organizations. For example, a female former adjunct professor at S University contributed to activation of the #MeToo movement in Korean universities by forming a National Association of Me-Too Survivors and winning all four lawsuits against the perpetrators. However, she was not reinstated by the university but instead simply received six years' salary after mediation by the court.
Sometimes, individuals or organizations who are accused of sexual harassment or misconduct sue for defamation, or file civil lawsuits against the victims and individuals or organizations that support the victims. Furthermore, when the accused individual or organization receives disciplinary action in the form of suspension or termination from the affiliated organization such as a university or workplace, there are often cases where they file an appeal for review of the disciplinary action or file civil or administrative lawsuits to nullify or invalidate the disciplinary action. This phenomenon, known as "counter-suing" or "counter-lawsuits," is on the rise. For example, Professor A was accused of sexual harassment against a female staff member at the university, and after he was dismissed from his position, he counter-sued the staff member for obstruction of business, only to be counter-sued for sexual harassment and non-criminal charges. The Supreme Court confirmed A's guilt by rejecting his appeal on November 25, 2018.

2. Harm to victims of sexual harassment

Sexual harassment affects not only the victims but also the accused individuals, perpetrators, the workplace where the harassment occurs, the employees within that workplace, and even society and the nation as a whole, causing harm and negative consequences.
(1) Harm to the victim
1) Primary harm
“Primary harm” refers to the mental and emotional harm, infringement of human rights (such as to personal dignity, sexual self-determination, and equality), and harm in the workplace (such as infringement of labor rights, deterioration of working conditions, loss of motivation and performance, and industrial accidents) caused by sexual harassment by a perpetrator.

2) Secondary Victimization of Victims
"Secondary victimization of victims" refers to the harm that victims suffer from perpetrators, employers, and members of the workplace after reporting and demanding corrective actions for sexual harassment, as well as the harm they experience during counseling, investigation, legal proceedings, medical treatment, media coverage, and other processes. The "Act on the Prevention of Violence Against Women and the Protection of Victims" defines "secondary victimization" as one of the following harms that female victims of violence can experience (Article 3, Clause 3):
① Psychological, physical, and economic harm during the entire process of handling and recovering from violence against women, including investigation, trial, protection, medical treatment, and media coverage.
② Harassment, assault, verbal abuse, or other acts causing psychological or physical harm, including acts conducted through information and communication networks.
③ Adverse measures taken by users (employer or person in charge of business management, and others performing duties related to employees on behalf of the employer) due to reporting violence-related incidents, including:
1. Dismissal, termination, or any other measures leading to loss of status.
2. Disciplinary actions, demotion, salary reduction, promotion restriction, or any other unjust personnel measures.
3. Transfer, reassignment, denial of job duties, or any other personnel measures contrary to the employee's intention.
4. Discrimination in performance evaluation or peer evaluation, leading to unequal payment of wages or bonuses.
5. Cancellation of self-development opportunities such as education or training, restriction or removal of available resources such as budget or personnel, suspension of security or confidential information usage, cancellation of handling qualifications, or any other discrimination or measures negatively affecting working conditions.
6. Creation or public disclosure of a list of targeted individuals, harassment, assault, verbal abuse, or other acts causing psychological or physical harm.
7. Unjust auditing or investigation of job duties, or public disclosure of audit or investigation results.
8. Cancellation of licenses or permits, or any other administrative measures causing disadvantages.
9. Termination of contracts for goods or services, or any other measures causing economic disadvantages.

(2) Harm to suspects and perpetrators
1) Harm to the suspect
Even if the claims and reports of sexual harassment made by an accuser have not been confirmed as true during the investigation process, the reporter is referred to as a "victim" who needs protection. If an employer takes disadvantageous action against the victim or the reporter, the employer may face criminal punishment.
On the other hand, it is not easy for an individual accused of sexual harassment to clear the accusation without providing decisive evidence that can prove their innocence, even if they claim that they did not commit the harassment. Often times, individuals who have been accused of sexual harassment are later found not guilty, or were falsely accused. However, they have already suffered disciplinary action or faced difficulties at work or school, which caused them to suffer reputational damage, stigmatization and/or other disciplinary measures. Restoring their reputations, undoing disciplinary actions, and mitigating other damages caused in the course of duty are not easy. As a result, some individuals accused of sexual harassment may resort to extreme action such as committing suicide.

2) Harm to the perpetrator
Once an individual is determined to have perpetrated sexual harassment, they face moral condemnation and suffer significant damage to their trustworthiness, reputation, and social status. They may also face legal sanctions such as criminal punishment and compensatory damages. When the incident becomes publicly known through media coverage, it will also negatively affect the individual's family and create significant difficulties in their personal and social life. Finding employment or gaining admission or re-admission to educational institutions may become challenging, and recovering the reputation and undoing the stigma can be difficult even after a long time.

(3) Damage to the workplace and coworkers
1) Damages to the workplace
When sexual harassment occurs, the individuals involved are not the only ones to suffer damage. The workplace where the incident occurred can suffer significant damage as well. The employer must invest a significant amount of manpower, money and time to investigate and handle the incident(s) of sexual harassment. The employer may also have to take disciplinary action and fill the vacancy left by dismissal or removal of the perpetrator and resolving labor-management conflict. These actions can lead to a deteriorating work environment and decline in productivity. Furthermore, the employer may bear administrative and legal responsibilities for failing to prevent sexual harassment as the employer of the perpetrator. Employers can also be involved in long-term legal disputes as defendants or co-defendants in cases before the National Human Rights Commission, labor relations commission and teacher petition review committees, as well as be caught up in civil or administrative lawsuits.
Finally, corporate image can suffer if the sexual harassment is repeated or there is extensive media coverage or extensive criticism from within the corporation regarding an incident or incidents. Financial damages can also result if civic organizations begin protesting or boycotting the company.

2) Damages to coworkers
When the workplace is troubled because of an incident of sexual harassment, the work environment can also deteriorate. Disputes between coworkers can increase if individuals are embroiled in conflict while in the process of writing petitions against the perpetrator. As a result, people who work in the same workplace may also endure mental suffering and violations of their labor rights and right to the pursuit of happiness.

3) Societal and National Harms and Negative Impact
The frequent occurrence of sexual harassment incidents and disputes has a detrimental effect on the protection of citizens' human rights, quality of life, personal development, and effective utilization of human resources. Consequently, it also negatively impacts the progress and development of society and the nation.