Chapter 3. Workplace Sexual Harassment: Prevention and Response
- Section 3. Issues and Related Cases in Handling Workplace Sexual Harassment Incidents Ⅱ. Precedents and Decisions related to Workplace Sexual Harassment
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1. Disputes involving sexual harassment by male employers Kim El-lim, "Sexual Harassment: Law and Dispute Resolution Cases," Episteme, 2023, pp. 287~290.
(1) Overview of a case
A, the male CEO (63 years old) of a well-known chicken franchise company was accused of sexual harassment by B, a female secretary (20 years old). The CEO was under non-custodial investigation on June 3, 2017. B claimed that A took her to a restaurant for dinner, saying "You've been working hard, let me buy you a meal," and then made sexual advances towards her while drinking, asking her to take a "love shot" and took her to a hotel lobby. In the hotel lobby, A asked for help from other women, and together they took a taxi to the police station to file a complaint. B stated that she only accompanied A to the hotel because she was worried that she would face dismissal or other disadvantages if she refused the CEO's advances, as she had only been employed for 3 months.
After some time, someone released CCTV footage of B coming out of a hotel and confronting A with several women in a taxi. This was reported in the media, and the police continued to investigate despite B filing a complaint. A claimed that physical contact was consensual with B, and that B was showing physical affection to A by touching him and that they held hands while walking to the hotel lobby, and A did not exert any force. A also claimed that B could not be trusted, since B still filed a complaint after agreeing to receive KRW 300 million from A's family to settle the case, suggesting that B may have conspired with the women in the hotel lobby to extort money from A, like a “gold-digger.” As a result of this incident, the franchise store's sales plummeted, and A stepped down from his position as CEO and issued an official apology.
The police referred the case to the prosecution on charges of sexual assault by coercion. However, the prosecution indicted A on December 17, 2018, for violating Article 10 of the Sexual Assault Punishment Act (Sexual Assault by Coercion) on the grounds that A used his position of authority or employment to coerce B. The prosecutor argued that during the trial, A did not show any signs of remorse and instead accused the victim of lying or being a gold-digger, and that the victim clearly expressed a desire for punishment. The prosecutor further argued that the settlement was a means to prevent investigation and did not reflect any apology or remorse towards the victim, and therefore should not be taken into consideration in the sentencing, and requested a sentence of one year and six months.
In arguing that he was innocent, A's defense counsel pointed out "the defendant, who was in a settlement state, was unjustly investigated by the police," "the statements of the witnesses were proven to be mistaken, and a significant portion of the victim's statements were revealed to be false," and "A has already suffered immense pain which is difficult for a person to endure."
(2) Court judgment
The court, considering the highly contradictory claims of each party, relied on the victim's statement and rejected the defendant's claims, resulting in a guilty verdict for the defendant with a suspended sentence.
1) First court ruling Seoul Central District Court ruling on Feb. 14, 2019, 2017Godan7560, Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Sexual Harassment through Abuse of Occupational Authority)
The defendant is sentenced to one year of imprisonment. However, execution of the sentence is suspended for a period of two years from the date of this judgment. The defendant is ordered to complete 80 hours of sexual assault lectures.
▪ Victim's statement that she complied with the defendant's proposal due to difficulties in resisting the defendant's actions for fear of work-related disadvantages is logically acceptable and credible. The reasons are as follows: considering factors such as the defendant's position and responsibilities within the company, age difference between the defendant and the victim, and the presence or absence of social experience, it is difficult to understand the defendant's claim that the victim consented to physical contact and hotel companionship.
▪ In the end, it can be concluded that the defendant abused his authority to sexually harass the victim. The defendant took advantage of the victim's inability to resist the defendant's actions due to the defendant's position as the CEO, his age, hierarchical relationship in the workplace, and the plaintiff’s lack of social experience.
2) Second court ruling Seoul Central District Court ruling on Jan. 16, 2020, 2019no689, Violation of the Act on Special Cases Concerning the Punishment etc. of Sexual Crimes (Sexual Harassment through Abuse of Occupational Status, etc.)
The appeal of the defendant is dismissed.
▪ Considering the coherence of the statements and the consistency with common experience, the credibility of the plaintiff’s statements should not be easily rejected due to minor inconsistencies in the expressions or changes in the initial definitive statements to somewhat ambiguous statements. The plaintiff’s statements are considered credible, unless the statements of the plaintiff and others are inconsistent or contradictory in a way that is unreasonable or self-contradictory, and also unless there are clear reasons or motives for making false statements that disadvantage the defendant. (Reference: Supreme Court Decision No. 2006do5407, pronounced on November 23, 2006, and others).
▪ The defendant claims that in the restaurant, he has never used any words or actions or exerted any influence that would disadvantage the plaintiff’s status. However, considering the differences in position, age, social experience, and degree of intimacy, the defendant's position or power in relation to the plaintiff can be evaluated as sufficient and intangible influence to suppress the plaintiff’s free will. Also, it cannot be said that the exercise of influence is determined solely by the presence or absence of statements regarding the actual work duties or employment relationship.
▪ In conclusion, the plaintiff’s statements are credible. The decision of the trial court is acceptable, and there are no illegalities due to factual errors.
3) Supreme Court ruling May 28, 2020, 2020do1492, on Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Sexual Harassment through Abuse of Occupational Superiority)
The appeal is dismissed.
▪ The lower court maintained the first ruling, which found the defendant guilty of the charges based on the same reasons stated in the first ruling. Examination of the relevant legal principles and properly adopted evidence, the lower court's decision did not exceed the limits of the rule of logic and experience. Also, it did not make any errors in understanding the legal principles related to Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes(before it was amended by Act No. 15792 on October 16, 2018) (Sexual Harassment through Abuse of Occupational Superiority).
2. Dispute related to sexual harassment by female employer Kim El-lim, "Sexual Harassment: Law and Dispute Resolution Cases," Episteme, 2023, pp. 290~291
(1) Overview of the case
The plaintiff, A, is an unmarried male who was employed as a manager at a hospital management consulting company in January 2008. The defendant, B, is a married female owner of the company and A's employer. A claimed to have suffered from harassment by B, who despite being married, engaged in physical contact with him against his stated wishes. For example, she linked arms with him multiple times in front of other employees. She also caused him great distress by sending over 130 text messages and calling him by phone every day, expressing her love, and even asking to meet in front of his house. A resigned from the company after only four months of employment and filed a complaint with the National Human Rights Commission of Korea. A also accused B of attempting to kiss him and engaging in unwanted sexual acts when she took him to her accommodations while on a business trip, and filed a criminal complaint against her.
B denied engaging in any sexual behaviors claimed by A. B also argued that although she did send text messages to A for work-related purposes, the contents were not intended to harass him but rather to express her positive emotions towards him.
(2) Decision of the National Human Rights Commission (Decision No. 08-480, Sexual Harassment, Sept. 22, 2008) Decision made on September 22, 2009, 08 Jincha 480 (Sexual harassment)
[Decision]
1. The part of the complaint related to sexual assault and confinement shall be dismissed because the investigation by a law enforcement agency is ongoing.
2. It is recommended that the complainant receive special human rights education organized by the National Human Rights Commission. Also, the defendant shall pay KRW 3 million in compensation to the plaintiff.
[Summary of the Decision]
▪ According to the definition of sexual harassment in Article 2, clause 5 of the National Human Rights Commission Act, the determination of sexual humiliation or disgust should be based not only on the subjective circumstances of the victim, but also on how an ordinary, reasonable person would perceive the actions of the perpetrator.
▪ A married female employer linked arms with an unmarried employee who had recently been hired, and expressed her affection to him in front of other people, even though he expressed that he did not feel the same. These would be considered actions that cause sexual humiliation or disgust for the male employee. In addition, despite the fact that they have a relationship of employer and employee, the perpetrator repeatedly called, sent text messages, and left voice messages expressing her romantic feelings towards the complainant. These actions constitute sufficient psychological pressure that goes beyond sexual humiliation and causes mental suffering and humiliation, which would be felt by any reasonable person. These actions of the perpetrator caused the victim to involuntarily resign from the company and suffer the resulting loss of income.
▪ Considering the above circumstances, the actions were sufficient to cause sexual humiliation or disgust for the victim. Therefore, the actions of the perpetrator constitute sexual harassment.
