Chapter 3. Workplace Sexual Harassment: Prevention and Response
- Section 3. Issues and Related Cases in Handling Workplace Sexual Harassment Incidents Ⅳ. Court Rulings and Decisions related to Sexual Harassment of Employees
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1. Dispute related to sexual harassment by male employee
(1) Overview of the case
Female worker A who works at F Steel Works, is the only woman in her 20s in a department where about 50 male employees work. On June 7, 2022, she filed a complaint against four male coworkers in the same department for alleged sexual harassment and sexual assault. One senior coworker, a department manager, allegedly came to her home after drinking and sexually assaulted her in a manner similar to rape, and the other three coworkers allegedly touched specific parts of her body against her will and coerced her to drink alcohol at a company dinner, and sexually harassed her during work.
A reported the incidents of workplace and sexual harassment to the audit office of F Company, but the perpetrator only received a three-month suspension. A, who was transferred to another department as a measure of separation from the perpetrator, claimed that she was forced to return to her original department after three months against her will by the department manager. On the other hand, the department manager argued that he was only trying to console her. When this dispute was reported in the media, the Ministry of Employment and Labor recognized that the environment in which female workers can work without anxiety was seriously violated in light of the recent cases of sexual harassment and sexual assault in F Steel Works on June 27, 2022. It issued a press release stating that they were conducting a joint investigation with the police. It was also conducting an investigation on whether there has been any violations of the provisions of the Equal Employment Act, since June 21, 2022. On the same day, the Ministry also began a diagnostic assessment of the organizational culture regarding employment equality in F Steel Works, in order to identify risk factors in the workplace that could allow for sexual harassment and employment discrimination.
(2) Results of the official investigation by the Ministry of Employment and Labor
On August 5, 2022, the Ministry of Employment and Labor announced the results of an official investigation.
▪ Male workers identified by the victims have violated Article 12 of the Equal Employment Act, by engaging in acts of sexual harassment in the workplace.
▪ F Steel Works is scheduled to be fined KRW 5 million for violating Article 14, paragraph 4 of the Equal Employment Act. This is because they have failed to take prompt action despite the victim's request for a department transfer after confirming the fact of sexual harassment in the workplace. This eventually resulted in the victim’s unavoidable frequent contact with the perpetrator for a considerable period of time. In addition, there is a suspicion of violating Article 14, paragraph 6 of the Equal Employment Act, for secondary victimization. Therefore, the representative director of F Steel Works will be prosecuted and enter legal proceedings.
(3) Result of organizational culture diagnosis by the Ministry of Employment and Labor
The Ministry of Employment and Labor conducted an online survey of all employees working for F Steel Works, from June 27 to July 4, 2022, to diagnose the organizational culture of equal employment, in conjunction with the official investigation.
< Results of the Ministry of Employment and Labor Investigation of Organizational Culture at F Steel Works >
▪ There are differences in sensitivity regarding organizational culture between male and female workers. Also, there are differences between workers in their 20s and 30s and those in their 40s and above. The responses which indicated that confidentiality is not well maintained when incidents of sexual harassment occur, were higher than the average. Also, it was confirmed that effective sexual harassment prevention education is not being conducted in the workplace. The main reasons for not taking any action despite the occurrence of workplace sexual harassment were mainly about potential disadvantages after reporting, and lack of trust in the company's internal handling system.
▪ On August 4, 2022, the Ministry of Employment and Labor explained the specific results of the organizational culture diagnosis to the management of F Steel Works and instructed them to inform their employees of the results. They also directed them to prepare improvement measures through detailed self-diagnosis, such as improving organizational culture related to sexual harassment and discrimination in the workplace, improving the internal grievance handling system, improving the response system in the event of incidents, taking measures to prevent secondary damages, and enhancing the effectiveness of sexual harassment prevention education by August 31, 2022.
▪ The Ministry of Employment and Labor will continuously monitor and check the contents and implementation of the improvement measures to prevent recurrence of workplace sexual harassment and ensure that the prevention and response system is substantially improved. If it is found out that the employer is not working to make improvements, special inspections will be considered for in-depth examination of overall working conditions at the workplace.
2. Dispute related to sexual harassment by female workers Kim El-lim, "Sexual Harassment: Law and Dispute Resolution Cases," Episteme, 2023, pp. 318~321.
(1) Overview of the case
A, a male worker (28 years old, unmarried), was employed as an assistant machine repairman by B Company, which is engaged in clothing manufacturing and sales. The company had 200 female workers and 7 male. A alleges that when he went to repair machines in the production department of B Company, two married female workers (Defendant 1, 40 years old, and Defendant 2, 35 years old), who were working as sewing machine operators and sewing machine assistants, intentionally touched his nipples and buttocks and made comments such as "You have a nice body," "You look like a young chicken," and "You are mine," despite his discomfort which was clearly expressed.
A approached the production manager and the director of general affairs of B Company for consultation, and demanded action to resolve the situation. The production manager, C, scolded A for making a fuss over a trivial matter and for not being enough of a “man” to handle some women’s jokes. Also, the manager threatened to press defamation charges against A and fire him if he couldn’t bring a signed statement from the women admitting to the sexual harassment. When A strongly protested, C reported him to the police station and had him detained.
In March 2001, A submitted a resignation letter stating that he wished to resign due to personal reasons, and then visited the local labor office to file an application for unemployment benefits. When applying for the benefits, he stated that he had been forced to quit by the company's coercion and threats. After he turned in the application, the labor inspector suggested that A's case could be considered as sexual harassment in the workplace. Subsequently, A filed a lawsuit against the female workers who had harassed him and B Company. He sought compensation for damages and invalidation of the unfair dismissal. His case was represented by women's rights lawyers.
(2) Court ruling Seoul District Court ruling on May 3, 2002, 2001 Gahap 6471 [compensation for damages]
For the first time, the court recognized the occurrence of sexual harassment by female workers against a male worker. The court also acknowledged the employer responsibility of Company B.
1. The Defendants shall each pay the plaintiff KRW 3,000,000, along with interest at an annual rate of 5% from March 28, 2001 to May 3, 2002, and interest at an annual rate of 25% from May 4, 2002 until the date of full payment.
2. The dismissal of the plaintiff by Company B on March 28, 2001 is invalid. Company B shall pay the plaintiff KRW 848,600, along with monthly wages at the rate of KRW 839,687 from March 28, 2001 until the Plaintiff is reinstated.
3. The remaining claims against the Defendants by the Plaintiff are dismissed.
4. The Plaintiff shall bear 1/2 of the litigation costs incurred between the Plaintiff and Company B, and the remaining costs shall be borne by the Defendants. The Plaintiff shall bear 7/10 of the litigation costs incurred between the Plaintiff and Defendant 1, and the remaining costs shall be borne by the Defendants.
5. Paragraphs 1 and 2 of this order shall be enforced immediately.
1. Judgment on Defendants 1 and 2
▪ The actions of the defendants clearly show a sexual motive and intention. Such sexual behavior goes beyond the category of ordinary jokes or friendly gestures that are socially acceptable. It caused the plaintiff to feel sexual humiliation or disgust, lowered the plaintiff's social evaluation, and deteriorated the plaintiff's working environment, thereby infringing upon the plaintiff's personal rights. Such actions constitute workplace sexual harassment as defined in the Equal Employment Act. Based on common experience, it is clear that the plaintiff suffered mental anguish as a result of the defendants' actions.
▪ Therefore, the defendants' sexual behavior constitutes joint illegal conduct, and the defendants have an obligation to compensate the plaintiff for the mental damages suffered by the plaintiff. Considering the plaintiff's age, gender, occupation, and the circumstances of how the physical contact occurred in this case, including the method and degree, the appropriate amount of compensation for damages to be awarded to the plaintiff by the defendants is determined to be KRW 3 million.
2. Judgment against Company B
A. Claim for Damages
▪ An employee must not engage in “work-related behavior” which causes another employee to feel humiliation or disgust due to sexual gestures or other sexual harassment-related actions. “Work-related behavior” includes not only the employee's work itself or actions necessary to complete the work, but also the actions generally perceived as related to the work, even if it is intended for the benefit of the employee. Company B, as an employer of the victim, has an obligation to prevent sexual harassment which undermines the dignity of the employee and seriously violates labor law by deteriorating the working environment of the employee. Therefore, if employees of Company B sexually harassed another employee who came to repair the machine, the company is subject to employer’s liability for damages.
▪ In addition, the employer has a duty to take prompt and appropriate actions in accordance with the Equal Employment Act. The employer could transfer the perpetrator to another department, impose disciplinary action, or take other equivalent actions, when it is confirmed that sexual harassment has occurred in the workplace. The employer also has the duty not to take any disadvantageous actions against the victim. If the company was aware or could have been aware of the occurrence of sexual harassment in the workplace through the plaintiff, the company must take prompt and appropriate action. However, there are cases where the company failed to do so in accordance with the relevant law. If a company neglects the situation and tries to maintain workplace order through forced concessions and sacrifice by the plaintiff such as his resignation, the company is liable for illegal actions as an employer.
▪ Therefore, the defendant company also has an obligation to pay compensatory damages of KRW 3 million to the plaintiff as joint illegal co-actors with the other defendants.
B. Confirmation of Invalid Dismissal
▪ The plaintiff submitted a resignation letter due to the defendant company's coercion to resign, which itself was because of the plaintiff's report of sexual harassment in the workplace. However, the plaintiff had no intention to resign and his submission of a resignation letter should actually be considered a dismissal. There is no evidence to acknowledge that the dismissal is just. The defendant company's dismissal of the plaintiff on March 28, 2001 is invalid. As long as the defendant company is currently disputing the validity of the dismissal, there is also an interest for the company in seeking confirmation of the relevant matter.
