Ⅲ. Characteristics of Sexual Harassment and Its Relationship to Workplace Harassment, Sexual Assault, and Gender Discrimination

Sexual harassment encompasses elements of work-relatedness, power dynamics, violence, and discrimination. In this regard, sexual harassment shares similarities and differences with workplace bullying, sexual violence, and gender discrimination. Kim El-lim, "Sexual Harassment: Law and Dispute Resolution Cases," Episteme, 2023, pp. 27-43.


1. Work-relevance of sexual harassment and its relationship with workplace harassment

Sexual harassment is connected to sexual behavior related to work or the use of position. Such behavior is mainly directed towards individuals in a vulnerable position by those with authority and higher positions. For example, if sexual harassment occurs in a regular workplace, the employer or a superior is often the perpetrator. In a university, it might be a professor. Therefore, sexual harassment is both relevant to power and work.

2. Relationship between sexual harassment and workplace harassment
(1) Definition of workplace harassment and “gap-jil” (“power harassment”)
As mentioned in Chapter 1, when the Labor Standards Actwas revised on January 15, 2019, regulations were added to prevent workplace harassment and to handle victims' grievances. According to this law, “workplace bullying” refers to "behavior by an employer or employee who uses their superior position or relationship in the workplace to cause physical or mental pain to other employees beyond the reasonable scope of work or to worsen the working environment" (Article 76-2 (1)).
Meanwhile, government departments jointly announced "Guidelines for Eradicating Workplace Harassment in the Public Sector" on February 18, 2019. These guidelines define “power harassment” as "unfair demands or treatment imposed on another person by someone who holds a superior position in social or economic relationships, or who exercises practical influence derived from that position."
However, on December 30, 2021, the Enforcement Rule of Disciplinary Actions for Public Officials replaced the term “power harassment” in the disciplinary standards (Appendix 1) with the term “unfair conduct, such as causing physical or mental pain to other civil servants by using one’s superior position or relationship beyond the reasonable scope of work.” This behavior is now included as a type of violation of the duty to respect the dignity of others. It is defined as "the act of a civil servant, using their superior position or relationship, that causes physical or mental pain beyond the reasonable scope of work, against: (a) another civil servant; (b) employees of the institution to which the civil servant belongs, the institution to which that civil servant belongs, and the affiliated institutions as defined in Article 4, paragraph 1 of the Act on the Operation of Public Institutions and Organizations; and (c) job-related persons according to the “Code of Conduct for Civil Servants” (If the job-related persons are a corporation or group, it means their employee)."

(2) Similarities and differences between sexual harassment and workplace harassment
Sexual harassment, workplace harassment, gap-jil(power harassment), and unfair acts such as using one’s superior position to inflict physical and mental pain on other civil servants all involve harassment and human rights violations. They also cause work-related harm to relatively vulnerable individuals targeted by those in superior positions.
Convention 190 concerning the Elimination of Violence and Harassment in the World of Work, adopted at the 108th session of the International Labour Organization (ILO) on June 21, 2019 (commemorating the 100th anniversary of the ILO's establishment), clarifies the relationship between workplace harassment and sexual harassment. This convention defines violence and harassment in the world of work as "a series of actions or practices, or threats thereof, whether occurring once or repeatedly, that aim at or result in physical, mental, sexual, or economic harm that is unacceptable, including gender-based violence and harassment" (Article 1(1)(a)). It further defines gender-based violence and harassment as "violence and harassment that is directed against a person because of their gender, or that disproportionately affects persons of a particular gender which includes sexual harassment" (Article 1(1)(b)). In other words, this convention defines sexual harassment as a type of workplace harassment centered on sexual behavior.
However, those in superior positions are not the only ones who might sexually harass someone else. A colleague or student can also be guilty of this. It also differs from workplace harassment because sexual behavior is the constituent requisite.

3. The Violence of sexual harassment and its relationship with sexual assault

(1) The violence of sexual harassment
Sexual harassment is considered violent because it involves making unwanted or non-consensual sexual advances towards someone, causing them physical and psychological harm, infringing upon their human rights, and causing them harm in the workplace.

(2) Relationship between sexual harassment, sexual assault, and other sexual crimes
1) Definition of sexual assault and crimes and its bias towards women
"Sexual assault” (violence) is a term commonly used internationally to refer to unwanted sexual behavior that involves violent acts that violate a victim's physical and psychological well-being, as well as their right to sexual self-determination. "Sexual crimes" refer to acts of sexual assault that are punished by the state because they are severely damaging.
However, in South Korea, sexual assault and sexual crimes are considered the same behavior. The Sexual Assault Prevention Act defines sexual assault as "an act that corresponds to the crime specified in Article 2 (1) of the Act on Special Cases Concerning the Punishment Etc. of Sexual Crimes." However, Article 2 (1) of the same Act only lists the types of sexual crimes without giving a solid definition of sexual assault. It also designates various sexual crimes specified in the Criminal Act and new sexual crimes added in Chapter 2 (Article 3-15) of this law as sexual assault crimes. These sexual crimes include offenses related to rape, molestation, adultery, obscenity, invasion of privacy in multi-use places for sexual purposes, and illegal filming.
The majority of victims of sexual assault and sexual crimes are women, a phenomenon that is common throughout the world. Therefore, the UN General Assembly adopted a "Declaration on Violence against Women" unanimously on December 12, 1993, which defines "violence against women" as "any act of gender-based violence occurring in public or in private life that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty." It points out sexual harassment, sexual assault, domestic violence, and forced prostitution as representative examples of violence against women. South Korea's Framework Act on the Prevention of Violence against Women aims to "clarify the responsibilities of the state and local governments to prevent violence against women, protect and support victims, and promote comprehensive and systematic policies to prevent violence against women to contribute to the enhancement of human dignity and human rights of individuals" (Article 1).

(2) Comparing sexual harassment and sexual assault
Sexual harassment and sexual assaults or sexual crimes share the common characteristic of involving the use of sexually oriented behavior that goes against the will of the other party. Also, it has a violent nature that causes physical and mental harm to the victim, violating their personality and sexual self-determination. They are also both considered a form of "violence against women" under the UN Declaration on the Elimination of Violence against Women and South Korea's Framework Act on the Prevention of Violence against Women, since women are the most common victims.
However, sexual harassment differs from sexual assault as it requires a work-related or hierarchical relationship as a basic criteria for determining whether it has occurred. In contrast, sexual assault, including sexual crimes specified in Article 303 of the Criminal Act (Sexual Intercourse by Abuse of Occupational Authority) and Article 10 of the Punishment Act for Sexual Assault (Sexual Molestation Committed by Force or Coercion), requires the existence of a power relationship, but not necessarily a work-related one. Additionally, not all sexual assault or sexual crimes require work-related or hierarchical relationships as basic criteria. Furthermore, while all sexual assault or sexual crimes are subject to criminal punishment under current law, not all cases of sexual harassment are subject to criminal punishment. However, if the behavior/conduct of sexual harassment meets the standard for sexual assault or sexual crime, the perpetrator shall be subject to criminal punishment.

4. The discriminatory nature of sexual harassment and its relationship with gender discrimination

(1) The discriminatory nature of sexual harassment
Sexual harassment is discriminatory in nature, as it primarily targets women and results in unjustified disadvantages (such as mental distress, violation of human rights, and harm to work performance).

(2) Relationship between sexual harassment and gender discrimination
1) Definition of gender discrimination and gender bias
“Gender discrimination” refers to treating a specific gender unfairly without rational justification based on perception of that gender. The National Human Rights Commission of Korea Act defines "discrimination that violates equal rights" (Article 2, paragraph 3) and provides 19 examples of categories of discrimination Gender, religion, disabilities, age, social status, region of origin (place of birth, registered residence, primary place of residence before reaching adulthood, etc.), country of origin, ethnic background, physical attributes such as appearance, marital status (married, unmarried, separated, divorced, widowed, remarried, in a de facto relationship, etc.), pregnancy or childbirth, family structure or family situation, race, skin color, beliefs or political opinions, previous criminal record with legal effect, sexual orientation, education level, medical history, etc.
, including gender. The scope and process of discrimination are limited to three areas: ① employment (including recruitment, hiring, education, placement, promotion, payment of wages and other benefits, loans, resignation, retirement, dismissal, etc.), ② supply or use of goods, services, transportation, commercial facilities, land, and residential facilities, ③ education and training in education facilities or vocational training institutions. Discriminatory behavior is "favoring, excluding, or treating a particular person (including groups of specific persons) differently or unfairly." The concept of "gender discrimination in employment" in this provision refers to "treating a specific person or group differently or unfairly in employment and conditions of work without rational justification based on gender." However, "the establishment, amendment, and implementation of laws or policies that temporarily favor a specific person or group in order to eliminate existing discrimination (such as “Affirmative Action”) shall not be considered as "discrimination that violates equal rights" (Proviso to Article 2-3).
Meanwhile, the Equal Employment Act defines discrimination as "cases where employers unreasonably differentiate in employment or working conditions based on gender, marriage, status within the family, pregnancy, childbirth, or other reasons [including cases where, even if employers apply the same employment or working conditions equally, the conditions are significantly lower for one gender compared to the other and this results in unfair outcomes for a specific gender, and the employer cannot prove that it is legitimate]."
However, the following cases are excluded: a) cases where a specific gender is inevitably required based on the nature of the job, b) cases where measures are taken for protection of maternity, such as pregnancy, childbirth, and breastfeeding by female workers, c) cases where active employment improvement measures are taken in accordance with this Act or other laws (Article 2 (1)). "Active employment improvement measures" in this Act refer to "measures to eliminate or alleviate existing employment discrimination between men and women, or to promote equal employment opportunities for men and women, such as affirmative action measures.”

(3) Comparing sexual harassment and gender discrimination
Sexual harassment is similar to gender discrimination in that it primarily occurs in patriarchal societies where men target women, resulting in unfair and unfavorable work situations for women. In fact, laws and judicial precedents in countries like the United States and Canada consider sexual harassment as a form of gender discrimination. In South Korea, the National Human Rights Commission of Korea Actdefines sexual harassment as a type of "discriminatory act that violates the right to equality" (Article 2-3 (d)). The Equal Employment Actincludes provisions related to sexual harassment in the workplace in its Chapter 2, "Guarantee of Equal Opportunities and Treatment for Men and Women in Employment."
On the other hand, gender discrimination refers to acts that unjustly prefer, exclude, differentiate, or treat individuals unfavorably in terms of opportunities or treatment without reasonable justification, thereby violating their right to equality. Sexual harassment is distinguished from gender discrimination, because it involves acts that infringe upon the right to dignity, sexual self-determination, and equality through the use of one's position or engaging in unwanted sexual behavior related to work.