II. Definition of "Sexual Harassment" and "Workplace Sexual harassment" under Korean Law Kim, El-lim. "Sexual Harassment: Law and Case Studies." Episteme, 2023, pp. 172, 185-189, 260.

The current Korean laws that define “sexual harassment” are the Framework Act on Gender Equality and the National Human Rights Commission of Korea Act. The Equal Employment Act defines sexual harassment and regulates actions in the context of sexual harassment in the workplace. The "Act on the Prohibition of Sex Discrimination and Remedies thereof" was abolished on March 30, 2005, and the "Basic Law for Women's Development" was converted to the "Gender Equality Basic Law" on May 28, 2014. The "Act on the Equal Employment of Men and Women" was transformed into the "Act on the Promotion of Gender Equality in Employment and Support for Work-Family Reconciliation" on June 22, 2005.
These three laws have different purposes and uses, with each expressing the criteria for determining whether sexual harassment has occurred somewhat differently.

1. Definition and use of the term in the Framework Act on Gender Equality

(1) Definition of sexual harassment and criteria for establishing whether it has occurred
Article 2-2 of the Framework Act on Gender Equality defines sexual harassment as "actions taken by employees, employers, or workers of public agencies (hereinafter referred to as "government agencies") designated by Presidential decree or local autonomous entities in work, employment, or other relationships that cause the other party to feel sexual humiliation or hatred due to sexual advances or demands related to their position or work, or that offer benefits with the condition of causing disadvantage if the other party does not comply with sexual advances or demands." “Institutions or organizations designated by Presidential decree as ‘public agencies’” include "schools of all levels established under the Elementary and Secondary Education Act, the Higher Education Act, and other laws, and public interest-related organizations announced by the head of the Personnel Innovation Agency in the government gazette pursuant to Article 3-2. (2) 2 of the Regulation on Ethics of Public Officials Enforcement (institutions and organizations that have been excluded from public interest-related organizations pursuant to Clause 3 of the same Article are excluded)" (Article 2 of the Enforcement Regulation).
Therefore, for any conduct to be considered sexual harassment under the Framework Act on Gender Equality, the following criteria must be met in relation to the actors (perpetrator and victim), circumstances, means, harm, and behavior, as seen in Table 1.

Criteria for Establishing ‘Sexual Harassment’
under the Framework Act on Gender Equality

Perpetrator
Employee, employer, or worker of a public entity (hereinafter referred to as "state institutions") designated as such by Presidential decree or local governments in the course of their work, employment, or other relationships.
Victim
Unspecified
Occurrence
In the course of work, employment, or other relationships
Means
Sexual behavior, demands, or requests, etc.
Behavior
▪ Actions that cause the victim to feel sexual humiliation or aversion through sexual behavior, demands, or requests, etc. used in connection with work or employment that involve the perpetrator exploiting his or her position This law places "using one's position or in relation to work, etc." before the act of sexual harassment, which is one form of sexual harassment that causes the other party to feel sexual humiliation or disgust through sexual advances or demands, in contrast to the National Human Rights Commission Act and the Equal Employment Opportunity Act. However, this requirement is a fundamental element for establishing sexual harassment, so it is believed that the amendment of the legal text is necessary.

▪ Actions that result in unfavorable treatment of the victim for refusing sexual behavior, demands, or requests
▪ Actions that promise benefit in exchange for sexual behavior, demands, or requests from the victim


(2) Use of the term “sexual harassment”
To fulfill the principle of gender equality in the Constitution of the Republic of Korea (Article 1), The Framework Act on Gender Equality aims to achieve gender equality in all areas (politics, economics, society, and culture) by stipulating the basic matters related to the duties of the state and local governments.
The concept of “sexual harassment” in this law is mainly used as a target for the sexual harassment prevention measures that should be implemented by heads of public institutions (state agencies, local governments, schools of all levels, and public officials in charge of family and women's affairs).

2. Definition and use of the term "sexual harassment" under the National Human Rights Commission Act

(1) Definition and elements of 'sexual harassment'
Under the National Human Rights Commission of Korea Act, sexual harassment refers to "actions by employees, employers, or workers of public institutions (referring to national or local government agencies, schools of all levels established under the Elementary and Secondary Education Act, the Higher Education Act, and public officials' ethics organizations established under Article 3-2 (1) of the Act on Public Official’s Standards of Conduct) that use their position or their job to cause sexual humiliation/revulsion through sexual advances or to give employment-related disadvantages for refusing such demands or actions" (Article 2, section 3, subsection 1).
Therefore, for any behavior to be deemed sexual harassment according to the National Human Rights Commission of Korea Act, the requisites listed in Table 2 must be met, regarding the parties involved (the perpetrator and victim), the context, the means, the harm, and the behavior.

Requisites of Sexual Harassment according to the
National Human Rights Commission of Korea Act

Perpetrator
Employee, employer, or worker of a “public institution” (national institution, local autonomous entity, school at any level established according to the Elementary and Secondary Education Act and the Higher Education Act, or Public Service-related Organization established according to Article 3-2 (1) of the Public Officials Ethics Act).
Victim
Unspecified
Occurrence
During work, employment or other work-related activity, using one's position
Means
Sexual behaviors, etc.
Behaviors
▪ Behaviors that cause the victim to feel sexual humiliation or hatred
▪ Behaviors that cause disadvantage to the victim’s employment relations for refusing sexual advances or demands Although the Act defines sexual harassment as "behaviors that cause employment-related disadvantage to the victim for refusing sexual advances or demands," it is not limited to employment-related experiences but also applies to sexual harassment that causes educational disadvantage. Therefore, it is reasonable to revise "employment-related disadvantage" to simply "disadvantage.”



(2) Use of the concept of “sexual harassment”
The purpose of the National Human Rights Commission of Korea Actis to protect and enhance the fundamental, inalienable human rights of all individuals through establishment of the National Human Rights Commission. It is also meant to realize the dignity and value of human beings and contribute to establishing the basic order of democracy (Article 1).
Accordingly, the National Human Rights Commission of Korea Act specifies corrections for violations of rights and discriminatory acts that infringe on the right to equality (Article 19, paragraphs 2 and 3). Sexual harassment is a type of discriminatory act that infringes on the right to equality. Therefore, “sexual harassment” in this law is used to define the scope of conduct for which the victim can apply for remedy and the National Human Rights Commission to conduct investigations and provide such remedy.

3. Definition and application of "sexual harassment in the workplace" in the Equal Employment Act”

(1) Definition of "sexual harassment in the workplace"
The Equal Employment Act defines sexual harassment in the workplace as any act of an employer, superior, or employee using their position in the workplace or work-related relationship to cause another employee to feel sexual humiliation or disgust due to sexual advances or demands, or to inflict disadvantageous employment conditions and consequences on them for refusing such advances or demands (Article 2-2).

(2) Requirements for establishing that sexual harassment in the workplace has occurred
To be recognized as "sexual harassment” as defined by the National Human Rights Commission Act, the requisites in Table 3 must be met, regarding the perpetrator and the victim, the context, the means, the harm, and the behavior.

Requisites for Establishing that Sexual Harassment in the Workplace Has Occurred" (according to the Equal Employment Act)

Perpetrator
Employer, superior, or employee
Victim
Employee
Occurrence
Using one's position in the workplace or work relationship
Means
Sexual language or gestures
Behaviors
▪ Behaviors that cause the victim to feel sexual humiliation or hatred
▪ Behaviors that result in the victim suffering disadvantageous employment conditions or treatment due to refusing to comply with sexual advances or demands


1) Parties involved
According to the Labor Standards Act, "employer" refers to "a business owner, a person responsible for management of a business, or a person who works on behalf of a business owner with respect to matters relating to workers" (Article 2 (1) 2). However, the Equal Employment Act defines a perpetrator of sexual harassment in the workplace as "an employer, superior, or employee" instead of using only the term "employer." Here, "superior" refers to an individual in a higher position than the victim, whether or not they assist the employer with management authority and responsibilities.
Meanwhile, again according to the Labor Standards Act, the term "employee" refers to "any person who provides labor to a business or workplace for the purpose of receiving wages, regardless of the type of occupation" (Article 2 (1) 1). However, the Equal Employment Act defines the receiver (victim) of sexual harassment in the workplace as "an employee," which refers to "any person employed by an employer or any person who intends to be employed" (Article 2-4).
Therefore, sexual harassment in the workplace also occurs when an employer, superior, or employee uses his or her status during the recruitment and hiring process by engaging in sexual behaviors that cause a job seeker to feel humiliated or disgusted. The Prevention and Response Manual for Sexual Harassment in the Workplace, published by the Ministry of Employment and Labor in 2020, states that job seekers and employees who receive wages and provide labor in a workplace, regardless of their job title or employment status, are all considered employees. Examples of “job seekers and employees” include regular employees, job seekers, non-regular employees (fixed-term employees, short-term employees, dispatched workers, etc.), and workers from subcontractors and partner companies. Ministry of Employment and Labor, “Prevention and Response Manual for Sexual Harassment in the Workplace”, 2020, pp. 8-9.

However, this law limits the scope of "sexual harassment in the workplace" to sexual acts by an employer, superior, or employee against another employee. Therefore, sexual behaviors executed by employees against employers are not considered “sexual harassment in the workplace.” Furthermore, although this law includes Article 14-2 (Prevention of Sexual Harassment by Customers, etc.), "sexual behaviors by customers and other business-related persons" is considered as separate from sexual harassment in the workplace.

2) Circumstances
This law defines the circumstances of sexual harassment in the workplace as "using one's position in the workplace or engaging in work-related actions." Therefore, work-relatedness is an essential factor in deeming whether sexual harassment has occurred in the workplace. Unwanted sexual behaviors that occur in places related to work, such as on business trips or at social gatherings, dinners, or a residence belonging to one of the parties, are all recognized as sexual harassment in the workplace.

3) Means
This law defines sexual harassment in the workplace as involving "sexual language and behaviors," which in turn refer to physical relations between a man and woman or physical, linguistic and visual behaviors in relation to the male or female physical appearance.
As summarized in Table 4, the Enforcement Decree to this law classifies “sexual language and behaviors” as "physical acts," "verbal acts," "visual acts," or "other language or behavior recognized as causing sexual humiliation or disgust according to social norms.“

Examples of "Sexual Language and Behaviors" according to the Enforcement Decree to the Equal Employment Act


Physical Behaviors
▪ Physical contact such as kissing, hugging from in front or behind
▪ Touching private parts of the body, like the breast, backside, etc.
▪ Behaviors such as forcing a massage or caressing
Verbal Behaviors
▪ Saying a filthy joke or speaking lustful and indecent words, including in telephone conversations
▪ Likening appearance to sexual things
▪ Asking about sexual relationships or facts, or intentionally distributing information of a sexual nature
▪ Forcing or requesting sexual relations
▪ Forcing a woman to sit close and fill glasses at a dinner meeting, etc.
Visual Behaviors
▪ Putting up or displaying lustful photos, pictures, drawings, etc., including distribution by email or fax
▪ Intentionally exposing or touching one’s own physical parts in a sexual manner
Other language or behavior which makes other workers feel sexually humiliated or offended as a socially accepted notion.


4) Behaviors
This law defines sexual harassment behaviors in the workplace as "actions that cause the other person to feel sexual humiliation or aversion" and "taking disadvantageous actions regarding the employee’s working conditions or employment because they did not comply with sexual advances or other sexual demands."
Attached Form 11 of the Enforcement Decree to this law provides behavioral examples of sexual harassment in the workplace, such as "unfair treatment in employment such as failure to hire, demotion, promotion denial, job transfer, suspension, leave of absence, or termination."

(3) Criteria for determining whether sexual harassment in the workplace has occurred
In the "Note" to Attached Form 1 of the Enforcement Decree to this law, there is a standard for evaluating whether or not sexual harassment has occurred in the workplace, stating that "when determining whether sexual harassment has occurred in the workplace, the subjective circumstances of the victim should be taken into account.”
It also considers “how a reasonable person would evaluate and respond to behavior that would be problematic from the victim's perspective according to social norms, and ultimately assessing whether such behavior creates a threatening or hostile work environment that impairs work efficiency.” However, when this law was amended on February 8, 1999, the concept of “sexual harassment in the workplace” was defined as "using one's position as an employer, superior, or employee to sexually harass another employee through sexual language or behavior related to work, or by causing employment-related harm or humiliation through such language or behavior." The criteria presented in the Enforcement Decree to this Act took account of this definition. However, this definition was revised on August 4, 2001, and the phrase "creating disadvantage in their employment” was removed. Therefore, it would be inconsistent with the revised legal definition of sexual harassment in the workplace to keep the standard of the current Enforcement Decree to this Act which says, "ultimately assessing whether such behavior creates a threatening or hostile work environment that impairs work efficiency."


(4) Use of the concept of “sexual harassment in the workplace”
The "Equal Employment Act " aims to guarantee equal opportunities and treatment for men and women in employment, promote maternity protection and women's employment, and support the reconciliation of work and family life in order to improve the quality of life for all citizens in accordance with the equality principles of the "Constitution of the Republic of Korea" (Article 1). This law includes provisions on the prohibition and prevention of workplace sexual harassment in Chapter 2, Section 2 (Prohibition and Prevention of Workplace Sexual Harassment) of the "Guarantee of Equal Opportunities and Treatment between Men and Women in Employment." Therefore, the concept of "workplace sexual harassment" in this law refers to actions that employers, superiors, and employees must not engage in and the measures that employers must take to ensure equal opportunities and treatment between men and women.

(5) Scope of application of regulations regarding 'workplace sexual harassment'
The law also stipulates the actions that employers must take to ensure equal opportunities and treatment for men and women and applies to all businesses or workplaces (hereinafter referred to as "businesses") that employ workers (Article 4). However, the entire law does not apply to businesses consisting solely of close relatives living together or domestic workers (Article 2 of the Enforcement Decree).