1. Criteria for determining whether sexual harassment has occurred

(1) Elements of judgment
The first sexual harassment lawsuit in South Korea was a civil case where a female teaching assistant at a university claimed to have been wrongfully terminated after refusing the sexual advances of a male professor. At that time, South Korea did not have specific laws or guidelines regarding sexual harassment.
In the first sexual harassment lawsuit in South Korea, the Supreme Court (Supreme Court ruling on Feb. 10. 1998, 95Da39533) indicated that in determining the legality of a certain sexual conduct, "the age and relationship of both parties, the place and situation where the conduct occurred, the presence or absence of sexual motive or intent, the explicit or presumed reactions of the other party, the content and degree of the conduct, whether the behavior was a one-time occurrence or ongoing, and other specific circumstances" should be considered comprehensively. These elements of judgment have also been cited in subsequent court rulings and decisions of the National Human Rights Commission of Korea.
However, in this particular ruling, the main point of contention was whether the defendant professor's conduct towards his female assistant constituted illegal conduct under the Civil Act. Also, the ruling was made before the enactment of laws regarding sexual harassment. The law states that the elements of an illegal action include intent or gross negligence, illegality, and damage, and were presented as criteria for judgment. Particularly, the issue of “the presence or absence of sexual motive or intention" was debated. In a subsequent ruling by the Supreme Court (Supreme Court ruling on June 14, 2007, 2005Du6461), it was stated that "it is not necessary for the perpetrator to have sexual motive or intent for sexual harassment to be established, but rather, it should be judged comprehensively based on the specific circumstances, such as the relationship between the parties, the place and situation where the conduct occurred, the explicit or presumed reactions of the other party, the content and degree of the conduct, and whether the conduct was a one-time occurrence or ongoing." The National Human Rights Commission of Korea (Decision No. 05JinCha470, issued on Sept. 13, 2003) stated that "Even if the perpetrator did not have any sexual intent, [sexual harassment] should be determined based on whether the conduct was unwanted by the other party and caused discomfort from the perspective of a reasonable woman.”

(2) Perspective of judgment
1) Perspective of the court ruling
The Supreme Court first introduced the perspective of "sound common sense of the social community (reasonable person)" in the first sexual harassment case. In a dispute related to sexual harassment by a male professor against a female teaching assistant, this judgment stated, "Whether an act of sexual expression is illegal or not should be determined by comprehensively considering specific circumstances such as the ages and relationship of the parties involved, the place and situation where the act was committed, the presence or absence of sexual motives or intentions, the explicit or implicit reactions of the other party, the content and degree of the act, and whether the act is a one-time or continuous occurrence, in the eyes of sound common sense and customs of the social community." These criteria are also known as the “reasonable person perspective.”

2) The perspective of an objective, average person in a similar situation as the other party.
However, in Korea, the laws related to sexual harassment specifically mention "actions that cause sexual humiliation or disgust" as the legal concept of sexual harassment. Accordingly, the contentious issue becomes whether sexual harassment is established or not, when only one person claims to have felt sexual humiliation or disgust, regardless of the perpetrator's sexual intentions or the circumstances at the time of the incident. Regarding this contention, the Supreme Court (ruling on June 14, 2007, 2005Du6461) introduced the perspective of the "general and average person who is objectively in the same position as the other party." In a dispute related to sexual harassment by a male principal against female teachers, this judgment stated, "In order to recognize that there was an act that would make a general and average person who is objectively in the same position as the other party feel sexual humiliation or disgust, it must be shown that the act was such that it would make a general and average person who is objectively in the same position as the other party feel sexual humiliation or disgust. Therefore, it is not sufficient to establish sexual harassment solely based on the fact that the other party felt sexual humiliation or disgust, unless there was an act that would make a general and average person who is objectively in the same position as the other party feel sexual humiliation or disgust." This ruling has been widely cited in sexual harassment-related judgments.

3) The perspective of gender sensitivity and perceptions.
However, the Supreme Court (ruling on Apr. 12, 2018, 2017Du74702) presented a new criterion, "gender sensitivity," in a dispute related to sexual harassment by male professors against female students. The main point of this judgment is as follows:
"When a court handles litigation related to sexual harassment, it should understand the issue of gender discrimination in the context in which the incident occurred and maintain ‘gender sensitivity’ in order to realize gender equality. Therefore, it should be noted that victims may suffer from so-called 'secondary victimization' such as negative reactions, public opinion, disadvantages, or psychological harm in the process of disclosing sexual harassment facts and addressing the issue due to the culture and perception in our society that are mainly of the perpetrators’. Victims may continue to maintain their relationship with the perpetrators even after suffering from such secondary harm, because of the anxiety or fear they feel about the perpetrator. Also, they may report the incident only when another victim or a third party raises the issue or encourages them to do so. There are also cases where victims show a passive attitude towards statements related to the incident even after reporting it to investigative agencies or courts. Therefore, dismissing the probative value of victim statements without fully considering the special circumstances faced by sexual harassment victims seems inconsistent with the principles of justice and fairness. Also, it cannot be considered as evidence-based judgment according to logic and experience."
"It must be taken into consideration that the perpetrator is a professor and the victim is a student, and that the sexual harassment occurred in a laboratory or research room where lectures were conducted. Also, the sexual advances were made as a pretext for the students in receiving their recommendation letters from the professor, which are important for students' employment. Nevertheless, such conduct occurred continuously, not as a one-time incident. Whether the plaintiff's conduct constitutes sexual harassment should be assessed from the perspective of an average person in a similar position as the victims.”

(3) Perspectives on decisions of the National Human Rights Commission of Korea
The National Human Rights Commission of Korea (Sept. 14, 2005, 05JinCha470) has provided the following criteria to determine “the reasonable perspective of a general woman," in disputes related to sexual harassment by male professors against female students. These criteria and perspectives are frequently cited in decisions of the National Human Rights Commission when the victim is a woman. They can be considered as gender sensitive criteria, considering that the individuals may perceive and judge sexual conduct differently depending on their gender during socialization.
① Is there any work-relatedness with the following? - Relationship between the parties involved, the process and content of the problematic behavior, and the place and situation where the behavior occurred
② Does the problematic sexual conduct imply sexual connotations?
③ Considering the specific circumstances of the explicit or implied reactions of the victim, did the other party not want such behavior, and feel sexual humiliation or disgust because of the sexual conduct?
④ From the perspective of a reasonable woman (or the perspective of a general woman), did the victim feel sexual humiliation or disgust from the problematic sexual conduct?
On the other hand, in cases where the victim is a man or a sexual minority, the National Human Rights Commission often cites the perspective of "reasonable perspective of the victim" or "perspective of a reasonable person" in its decisions.

2. Recognizing the reliability of victim’s statements and the notion of "victimhood"
(1) Criteria for recognizing the reliability of a victim’s statement
Sexual harassment and sexual assault often occur in situations where there are only two parties involved: the perpetrator and the victim. However, disputes often arise when the parties provide conflicting statements about the situation. For example, in situations such as work-related dinners where multiple people are present, there may be different memories and statements from the attendees. Moreover, the victim's statement may change or deviate from the facts during the investigation process. In such cases, the legal issue becomes the criteria for determining whether to trust the victim's statement and reject the claims of the accused.
The court often cites the above criteria when evaluating the credibility of a victim's statement which is: "Unless there is a special reason to reject its credibility, the victim's statement should not be rejected merely because there are inconsistencies in minor details due to differences in expression. As long as the main content of the statement is consistent, rational, not contradicting itself, and there is no clear motive or reason for the victim to make false statements that would disadvantage the accused, the victim’s statement shall be accepted." (Supreme Court ruling on Nov. 23, 2006, 2006do5407)

(2) Common perception of "victimhood“
The concept of "victimhood" refers to the belief that if someone is a victim, they should behave or react in a certain way in accordance with common sense or societal norms. This notion of "victimhood" has been a contentious issue in disputes related to sexual harassment and sexual assault. Sometimes, it is considered reasonable, but other times it may result in unfair dismissal of a victim's statement due to biased or preconceived ideas about how a victim should behave in a specific situation.
For example, in a dispute between a male provincial governor and a female secretary which involved claims of "rape through abuse of occupational authority" and "victimhood,” a lower court (Seoul Western District Court, ruling on Aug. 14, 2018, 2018 GoHap 75) acquitted the governor, stating that the victim's statement was not credible as she did not behave like a victim. The court pointed out that she continued search for his favorite tofu stew restaurant even after being sexually harassed and also failed to leave cigarettes outside the hotel room as instructed, which led to another sexual assault. However, the appellate court (Seoul High Court ruling on Feb. 1, 2019, 2018No2354) overturned the lower court's decision by applying the gender sensitivity criteria (Supreme Court ruling on Apr. 12, 2018, 2017Du74702). Upon further appeal, the Supreme Court (Supreme Court ruling on Sept. 9, 2019, 2019Do2562) confirmed that the governor was guilty as charged.

3. Scope of “sexual behavior”

With the legal concept of sexual harassment, there are differences in interpreting the meaning of " sexual behavior or demands" which is considered a measure of sexual harassment. Supreme Court ruling on June 14, 2017, 2005Du6461 A frequently-cited Supreme Court ruling states "'Sexual behavior or demands,' which must exist for sexual harassment to occur, refer to conduct that can make the other party feel sexual humiliation or disgust. There is physical, linguistic and visual conduct related to physical relationship between the sexes or the characteristics of males or females that can be harmful when considered by the sound common sense and societal norm of an ordinary and average person in the same position as the other party.”
However, in the R Automobile sexual harassment lawsuit, the appellate court (Seoul High Court ruling on Dec. 18, 2015, 2015Na2003264) interpreted sexual harassment more broadly. It included not only actions of a sexual nature, but also discriminatory remarks based on gender such as "doing housework at home," and insults based on gender, among others. The appellate court's view on sexual behavior is as follows.
The term "sexual behavior, etc." is not limited to the level of behavior exemplified in Annex 1 of Article 2 of the Enforcement Decree of the Equal Employment Act. Specific circumstances should be taken into consideration, such as ① the relationship between the parties, ② the place and situation where the behavior occurred, ③ the explicit or presumed reaction of the other party, ④ the content and extent of the behavior, and ⑤ whether the behavior was done only once or has been continuous.
Therefore, it is valid to interpret that all behaviors, such as making unwanted sexual advances or harassing the other party, requesting sexual favors, making discriminatory remarks based on sex, and other words and actions that treat the other party as a sexual object or subject them to sexual discrimination despite the other party’s unwillingness that would make an objectively reasonable and average person of the same position feel sexual humiliation or disgust, are “sexual behaviors.”
This is because a narrow interpretation of “sexual behavior, etc.” is not fair when the reality of sexual harassment in the workplace is considered. If only physical behaviors or language related to physical characteristics or characteristics of the human body in sexual or non-sexual relationships are considered “sexual behavior,” demanding conversations or meetings of a personal nature that the other party does not want in an oppressive or persistent manner, looking at the other party's certain body parts for a long time with one's eyes, and making discriminatory remarks such as "do household chores at home" especially towards female workers, may be excluded from the definition of "sexual behavior, etc."
Considering the reality that female workers often experience sexual humiliation or disgust and are hindered in performing their duties due to such behavior in the workplace, it is not valid to exclude such behavior from the definition of "sexual behavior, etc." In order to uproot the problem of sexual harassment in our society's workplaces, it is reasonable to consider that even if the behavior was carried out with the pretext of being a light joke or playful banter that could be a source of vitality in the workplace, assuming that the female worker is someone's mother, sister, younger sister, or daughter, it would still be considered "sexual behavior, etc." unless circumstances indicate otherwise.
However, the manual on sexual harassment published by the Ministry of Gender Equality and Family and the Ministry of Employment and Labor defines "sexual gestures" as gestures that are of a sexual nature. Speech that denigrates women or actions that assign exclusively women to demeaning or menial tasks does not constitute sexual harassment along this line of thought. The Convention concerning the Elimination of Violence and Harassment in the World of Work (No. 190) adopted by the International Labour Organization (ILO) on June 21, 2019 defines "gender-based violence and harassment" as "violence and harassment directed against persons because of their sex or gender, or that disproportionately affects persons of a particular sex or gender, including sexual harassment." This signifies that "gender-based violence and harassment" encompasses various forms of violence and harassment based on perceptions of gender, including men and women. Also that "sexual harassment" is a type of violence and harassment of a sexual nature within the scope of "gender-based violence and harassment." From this perspective, while discriminatory speech based on gender or gender-based insults may fall under "gender-based violence and harassment," they do not constitute sexual harassment as they are not of a sexual nature.

4. Burden of proof

The Equal Employment Act has had a provision (Article 30) in effect since April 1989 which states that the burden of proof in disputes related to this law rests with the employer. The amended law on May 18, 2021, expanded application of this provision not only to settlement of internal disputes by employers but also to settlements of disputes by labor relations commissions and the Minister of Employment and Labor.
However, the second ruling in the R Automobile (Seoul High Court ruling on Dec. 18, 2015, 2015Na2003264) sexual harassment case, sparked controversy by stating that "it is not reasonable or fair to impose all burden of proof on the employer, and the victim must at least prove that there was unfavorable treatment. The employer has the burden of proof to prove that there were other legitimate reasons for such unfavorable treatment." However, the Supreme Court ruling in this case (Supreme Court ruling on Dec. 22, 2017, 2016Da202947) stated that the burden of proof provision of the Equal Employment Act applies to sexual harassment cases, and that "the employer must prove that there was no relevant connection between the unfavorable treatment of the victim and the sexual harassment, or that there were legitimate reasons for such unfavorable treatment.“

5. Responsibility of employers
(1) Employer responsibility
The Civil Act stipulates that "the person who uses another person to engage in certain work and the person who supervises such work on behalf of the employer shall be liable for damages caused to a third party in the execution of such work. However, an exception shall be made if the employer exercised reasonable care in the appointment of the person to be used and in the supervision of such work, or if reasonable care was exercised but damages still occurred." (Article 756).
However, in the first sexual harassment lawsuit in South Korea, the trial court (Seoul District Court ruling on Apr. 18, 1994, 93GaHap77840) and the appellate court (Supreme Court ruling on Feb. 10, 1998, 95Da39533 [Claim for Damages (Non-contractual)]), as well as the retrial court (Seoul High Court ruling on June 25, 1999, 98Na12180 [Claim for Damages (Non-contractual)]), all recognized the professor's sexual misconduct as an illegal act, but did not recognize the employer's responsibility for damages. The trial court stated that the professor's sexual harassment was unrelated to his job and that professors must have complete discretion in their research and teaching activities, and even if they are the employer or the supervisor of the person appointed to their position, they are not in a position to directly instruct or supervise the professor's research activities or other personal matters that are not administrative or formal in nature. The Supreme Court stated, "Employment and labor relationships are based on a continuous creditor-debtor relationship that is in turn based on personal trust. Therefore, it is natural for the employer to bear the obligation to provide the employee with a pleasant working environment by respecting and protecting the employee's personality. Also, they should take necessary measures to ensure that the employee does not suffer damages while performing his or her duties, and measures such as granting compensation for the employee's services should be taken by the employer.” The Supreme Court further stated, "In this case, it cannot be said that the defendant (the Republic of Korea) did not fulfill its duty to protect and support the employee. The sexual harassment committed by the defendant's professor was completely unrelated to execution of his job. Furthermore the defendant, the Republic of Korea, could not have known about the defendant's sexual harassment as it was secret and personal. Also, the plaintiff did not disclose it to the defendant, the Republic of Korea."
The first court ruling in Korea that recognized employer responsibility was by the Seoul Central District Court (May 3, 2002, 2001GaHap6471) in a dispute related to sexual harassment against female workers by male workers and the employer’s responsibility. This ruling stated, "The company, as employer, has an obligation to prevent damage to the dignity of workers and significant obstacles to labor supply by showing consideration for the work environment and preventing sexual harassment. If the defendants have sexually harassed the plaintiffs, the company is liable for damages as the employer." Since then, many court rulings in cases of sexual harassment in the workplace have recognized employer responsibility.
However, in the recent highly publicized "R Automotive" sexual harassment case, the first ruling (Seoul Central District Court, Dec. 18, 2014, 2013GaHap536064) recognized the behaviors of the perpetrator (team leader) as sexual harassment, but did not recognize the company's responsibility as employer, as the actions were deemed to be the perpetrator's personal behavior unrelated to work. However, the second court ruling (Seoul High Court, Dec. 18, 2015, 2015Na2003264, Damages (retrial)) recognized partial employer responsibility. The subsequent Supreme Court ruling (Dec. 22, 2017, 2016Da202947, Damages (retrial)) and the appellate court ruling on remand (Seoul High Court, Apr. 20, 2018, 2017Na2076631, Damages (retrial)) recognized broader employer responsibility.
The courts do not easily recognize employer responsibility of universities for sexual harassment by professors against faculty or students. For its part, the National Human Rights Commission often recommends measures such as sanctions against the perpetrator by the head of the department (president, etc.), preventive education for all employees and measures to prevent recurrence and secondary victimization.

(2) Tort liability
Current laws related to sexual harassment, such as the Equal Employment Actand the Framework Act on Gender Equality, impose an obligation on employers to take measures to prevent sexual harassment and to refrain from treating victims unfairly (secondary victimization).
If an employer violates these obligations and causes harm, the employer is liable under Article 393 (Non-performance of Obligation) and Article 750 (Illegal Act) of the Civil Act, rather than under the principle of employer responsibility in Article 756 of the same Act. In addition, the Equal Employment Act stipulates criminal penalties for employers who treat victims of workplace sexual harassment unfairly.