Ⅰ. Questions and Answers concerning Sexual Harassment at Work

1. Q&A designed to understand the concept of sexual harassment at work

Q) Does sexual behaviors of the customer’s agents or employees from the affiliate company constitute sexual harassment at work?
A) It is difficult to define sexual harassment by people, that is, by those related to customers’ companies or by those within the company in which one works. However, if an employer, a senior, or an employee makes the environment conducive for sexual harassment or demands the victimized employee to tolerate sexual harassment, it can constitute sexual harassment at work and the employer may be held liable.

Q) Is it possible for sexual harassment to occur in the process of job interview before an employee is formally hired?
A) Yes, it is possible. An interviewee in the process of job interview for employment is a potential employee. It can thus constitute sexual harassment when the interviewer causes the interviewee to feel sexually humiliated, makes any verbal or physical conduct of a sexual nature to the interviewee, or makes sexual approaches or requests to the interviewee.

Q) Is it possible for a female to be a sexual harasser?
A) Generally, sexual harassment at work is committed by men rather than women, but it may also be possible at times for such offences to be committed by a female to a male, a female to a female, and a male to a male. For example, it can constitute sexual harassment when a female superior sexually harasses a male subordinator against his wishes.

Q) Can an hourly or daily rated employee be protected against sexual harassment at work?
A) The Equal Employment Act is applicable to all employees, including hourly and daily rated employees working at a business or workplace with five or more employees. As such, hourly or daily rated employees working in a workplace with five or more employees can be protected against sexual harassment at work. For hourly or daily rated employees working in a workplace with four or less employees, the ‘Gender Discrimination Prohibition and Remedy Act’ which applies to workplace with four or less employees provides them with such protection.

Q) If the victimized employee reacts to verbal or physical conducts of sexual nature passively / silently, can it still be regarded as sexual harassment?
A) Yes, it can. For an example, due to lack of social experience, a victimized employee may be under the impression that sexual harassment is generally acceptable and thus tolerated passively without apparent signs of rejection. As he/she gradually felt sexually humiliated and raised contention against such acts, it can still be regarded as sexual harassment. However, it may not be regarded as sexual harassment if the victimized employee explicitly permits the continuance of such verbal or physical conducts of a sexual nature.

Q) If a senior employee displays pictures of overly exposed women on his desktop computer screen, is it regarded as sexual harassment?
A) Except for special circumstances, visual conduct of sexual nature is also regarded as sexual harassment as long as there is a victim resulting from such conducts. Having obscene pictures on one’s own desktop computer screen placed on one’s own table is a personal inclination. Although such a personal lifestyle shows inconsideration to others and hence immaturity, it does not suffice for relation to sexual harassment. However, when such behaviors cause others to feel uneasy and when the harasser pays no heed to victim’s explicit expression of such uneasiness but continues with such behavior, it can be regarded as sexual harassment at work. In that respect, hanging an obscene calendar at a location meant to be seen by women is definitely regarded as sexual harassment.

Q) Does sexual harassment exists only when the harasser carries intention of causing sexual harassment?
A) No, even though the sexual harasser may not be conscious of his sexual harassment act, the victim may feel sexually harassed. Hence, whether sexual harassment exists or not should not be judged based on the harasser’s intention but from the point of view of the victim. However, since the victim’s response differs from person to person, the standard of judgment should therefore be based on the socially accepted norm of how a reasonable person would react towards such verbal and physical conduct of a sexual nature if he or she were in the victim’s situation.

Q) If there is no specifically targeted person for sexual jokes, does it still constitute sexual harassment?
A) Yes, it does. Even though verbal and physical conduct of sexual nature may not be targeted at specific person, it still constitutes sexual harassment if it invokes sexual humiliation or contributes to hostile environment.

Q) Does demand for errands such as delivery of beverages and photocopying of document targeted restrictively at female employees constitute sexual harassment?
A) Sexual discrimination acts, as below, may be regarded as sexual harassment ① Degrading female employees by addressing them as ‘Halmony(grand mother)’, ‘Ajumma’, ‘Yah’, etc. ② Discrimination of roles between the genders such as degrading females’ roles to homemaking, husband-supporting or child-raising whilst glorifying males’ roles as master and authority of home ③ Restricting certain task to be performed by a certain sex, for instance, only female employees are demanded to perform errands such as delivery of tea and photocopying of document.
Notwithstanding the type of job the victimized employee is engaged in, ‘sexual discrimination type of sexual harassment’ basically affects the victim’s will to work and her work efficiency by degrading female employees to roles of home-making and child-raising whilst glorifying male employees to more superior status as home master.
Whether such acts constitute sexual harassment or not very much depends subjectively on the victim’s individual feelings in addition to a standard of judgment based on a socially accepted norm of how a reasonable person would react towards such sexual discrimination if he/she were in the victim’s situation. With such a perspective, it remains difficult for Koreans to perceive sex discrimination as a form of sex harassment because until now, sex discrimination has been our nation’s socially accepted norm.

Q) Does a one-time verbal abuse of sexual nature constitute sexual harassment?
A) Yes, it does. Under conditional sexual harassment, when such one-time verbal abuse of sexual nature resulted in the victimized employee showing rejection or expressing feeling of displeasure or suffering disadvantages in personnel-related matters, it undoubtedly constitutes sexual harassment. Also, even if the verbal abuse is trivial but if such unwanted behavior is repeated to the extent of causing sexual humiliation or affecting work efficiency, it can constitute sexual harassment.

2. Q&A concerning employer’s duties in relation to sexual harassment at work

Q) Does distribution of company’s papers or brochures suffice as training on preventing sexual harassment?
A) In implementing training on preventing sexual harassment, it is a good method to create awareness about sexual harassment to company’s managers or employees by distributing company’s papers or brochures. However, such method should be used as a supplementary measure. At the very least, there should be various forms of training such as employee seminars, regular meetings, department-level training, and audiovisual educational training. If possible, it is also important to have many dialogue and discussion sessions for sharing and exchange of opinions with one another.

Q) As trivial sexual jokes may also be regarded as sexual harassment at work, should employer adopt personnel measures such as department transfer and disciplinary punishment when such harassment occurs?
A) There should at least be measures such as written warnings. Even if a verbal or physical conduct of sexual nature appears trivial from a third party’s objective point of view but from the point of view of the victim, it may be felt as a severe sexual humiliation. As such, so long as the employer agrees that the offence constitutes sexual harassment, the employer should pursue it and serve disciplinary warnings to the harasser in order to prevent the recurrence of such harassment. Accordingly, the employer should, through the use of punishments such as warnings, try to ensure that harassments akin do not recur.

Q) Can an employer impose heavy disciplinary punishment such as dismissal for trivial sexual harassment offence?
A) If a light disciplinary punishment such as warning fails to stop sexual harassment behaviors, the employer may impose heavier disciplinary punishment. However, if heavy disciplinary punishment is resorted without attempting light disciplinary punishment for even once or if heavy disciplinary punishment is resorted after the harasser has already stopped its sexual harassment behaviors after a light disciplinary warning, it would then have to be deemed as not acting in line with socially accepted norm.

Q) In the event there are harasser and victim parties to a case of sexual harassment, is it regarded as unfair to transfer only the victimized employee?
A) In general, workplace transfer can be used as a disciplinary punishment against the sexual harasser. However, if the victimized employee voluntarily requests for or agrees to the transfer and there is no problem arising from doing so, transfer of victimized employee may also be the case. However, if there is no business necessity in making such transfer or if there is no consideration to the victimized employee’s opinion, or if it is done against the victim’s will, such transfer would be treated as transfer without appropriate reason according to Article 30 of the Labor Standards Act.

Q) When a dispatched employee committed sexual harassment at work, does the employer who uses his/her services have to impose disciplinary punishment?
A) In the event a dispatched employee initiates sexual harassment at work, the employer who uses his/her services will have to take the responsibility to conduct fact-finding and organize the formation of dispute dissolution committee. However, as such employer does not have the authority to discipline the dispatched employee, direct disciplining would be impossible. Nevertheless if the dispatched staff’s sexual harassment act is confirmed to be true, the employer who uses his/her services may recommend to the employer who dispatched him/her to take disciplinary punishment against him/her. If the dispatched employer does not respond, the using employer can request for termination of seconding contract.

3. Q&A concerning the rights of the victimized employee to seek help

Q) Is it possible to punish sexual harasser by the Equal Employment Act?
A) It is not possible to directly punish sexual harassers by the Equal Employment Act. This is because in order to punish the sexual harasser by an act that does not differentiates between his/her acts inside and outside of the company, it would have to be regulated by a general law that apply to all nationals instead of a law, such as the Equal Employment Act, which is specific to employment. As the Equal Employment Act entrusts employers with the responsibility of prohibiting and preventing discrimination, there is no provision stipulated in the administrative legal structure to punish the sexual harasser. However, as there are provisions for employer to implement measures, such as department transfer, disciplinary punishment, etc. against sexual harassers, the victimized employee may therefore request to a grievance handling committee for help to resolve problems of sexual harassment and may also request for disciplinary punishments to be imposed on the sexual harasser. If such requests are not accepted by the employer, the employee may lodge with the Labor Office for remedial action against the employer. In addition, the victimized employee may also bring a civil suit against the sexual harasser so as to claim for compensation.

Q) For sexual harassment case happened 2 years ago, is it still possible to appeal for an internal solution by the company or to lodge complaint with the Labor Office?
A) Yes, it is possible. Extinctive prescription of labor laws generally allows for three years, and extinctive prescription of general rights in the Equal Employment Act also allows for three years. As such, for sexual harassment occurring within three years, the Equal Employment Act is absolutely applicable, and the victimized employee may lodge such complaint with the Labor Office.

Q) When there is sexual harassment, must the victimized employee personally lodge her appeal or complain in order for her right to seek help to be effective?
A) No. In the event an employer disadvantages an employee in her employment or did not take appropriate measures against the sexual harasser, it is also possible for a third party such as a consulting body to seek redress or to complain to the Labor Office. However, as sexual issues are likely to infringe on characters and rights of both the victimized employee and the sexual harasser, the representing third party will have to sufficiently consider the victimized employee’s opinion before appealing or complaining to the labor office

Ⅱ. Cases of Sexual Harassment at Work

[Case 1] This was a case affirmed as sexual harassment at work as the assistant manager demanded his subordinate to fill the glass of the managers with liquor.

 Details of the case
❖ The victimized employee (A), a nurse of a hospital supervised by a Manager of Nurse of the same hospital, attended a company’s dinner on March 26 1999 and was told by an Assistant Manager of the General Affairs team (B) at the company’s dinner to fill the glass of the Director of General Affairs and that of the General Manager of Treatment team with liquor. When (A) rejected that suggestion, (B) grasped her arm and took her to the table of the director and the general manager, and forced her to fill the glass with liquor. Because of this incident, the victimized employee (A) felt severely humiliated.

 Judgment
❖ Sexual harassment at work can occur in a company’s dinner related to work. This case was in relation to work as the company’s dinner was held under the supervision of the Manager of Nurse.

❖ position as a superior in the company to verbally compel the victimized employee (A) to fill the glass regardless of her dislike. From the perspective that the employee felt sexually humiliated, such an act therefore constitutes sexual harassment at work.

[Case 2] Disciplinary dismissal due to sexual harassment behavior at work is an exercise of justifiable rights of personnel, but disciplinary dismissal out of sympathy for the offender is unfair dismissal.

 Details of the case
❖ Applicant A and B worked as Manager and Assistant Manager of the Planning team in a hospital respectively and attended the department’s dinner at a restaurant near the hospital. At the dinner, applicant A went to the extent of making physical abuse of a sexual nature by fumbling the thigh of a female employee and touching her breast, but applicant B just looked on such sexual harassment behaviors and somewhat expressed sympathy.

❖ After this incident, the employer dismissed applicant A on grounds of sexual harassment and also dismissed applicant B for not upholding morals at work. Both applicants A and B sought remedial help to the Labor Relations Commissions against unfair dismissal by the employer.

 Judgment
❖ Depending on the severity of the sexual harassment and the continuity of such acts, the employer would have to take reasonable disciplinary measures such as department transfer, warning, reprimand, salary reduction, job transfer, suspension from work, being placed on the waiting list, suspension from office, etc.,

❖ Article 10 of enforcement decree of the Equal Employment Act regulates that ‘in cases where the employer takes disciplinary measures such as department transfer, disciplinary punishment, etc., he shall consider the severity of sexual harassment and its continuity. Accordingly, the employer shall determine a reasonable level of disciplinary punishment, considering ① whether the sexual harasser is aware of the fact that the victim employee did not want the behavior? ② were the behaviors repeated somehow? (for example, the level of sexual harassment, its continuity, etc.) ③ Is there any difference in power (authority) between the sexual harasser and the victimized employee? and ④ the legal ambit which the victimized employee comes under.

❖ In this respect, as dismissal is the heaviest disciplinary punishment causing severe threat of the employee’s survival right, Article 30 (1) of the Labor Standards Act regulates that it shall be implemented only in the case where there is a reasonable grounds. In this case, reasonable grounds imply that the employee’s violation was so severe that it would be difficult to continue his employment with the company. The employer will have to consider the gravity of the employee’s violations and equality compared with other employees, and shall not abuse the rights of employer in imposing punishment.

❖ It follows that the disciplinary dismissal imposed on A, who had at the dinner gone to the extent of physical sexual abuse by fumbling the thigh of the female employee and touching on her breast, was an appropriate exercise of personnel management’s rights as it had considered the severity of applicant A’s sexual harassment conducts. However, for applicant B who had just looked on such sexual harassment behaviors and who somewhat showed sympathy, the imposing of disciplinary dismissal similar to the punishment received by applicant A would be deemed as an abuse of the employer’s right in considering the severity of the employee’s violations and in maintaining equality amongst employees.

[Case 3] A case difficult to be affirmed as sexual harassment based on the harasser’s verbal and physical conduct.

 Details of the case
❖ The applicant and the defendant were both hospital employees. The applicant worked as a Service Manager in charge of receiving patients, while the defendant worked as a Planning Director in charge of personnel management of all employees and was a senior manager to the applicant.

❖ On August 16 2000, the applicant was waiting for an elevator together with her superior, a Nursing Manager, on their way to work. The defendant got on the elevator at the underground first floor, and the applicant and her superior joined in from the first floor to the fifth floor. On the way to the fifth floor, the defendant said to the applicant “Ms. Kim, you should try to greet” and he tapped the hip of the applicant twice with a folded newspaper. The Nursing Manager got himself involved at this juncture, but the defendant said, “I wonder whether people still know their workplace manners after marriage.” The applicant felt embarrassed and sexually humiliated to have her hip tapped in the presence of many employees working together in the same building and therefore claimed this incident to be a case of sexual harassment rather than a case of plain assault.

 Judgment
❖ In judging sexual harassment, the victim's subjectivity should be considered. At the same time, socially accepted norms on how a reasonable person, in the victim’s circumstances, would evaluate or react to such a controversial situation should also be considered.

❖ The applicant claimed that she felt embarrassed and sexually humiliated when the right-hand side of her hip was hit by the defendant’s newspaper.

❖ Even though she was tapped on the hip, it was only an indirect contact with the newspaper held by the defendant. There was no verbal abuse of a sexual nature except for an advisory remark,” Ms. Kim, you should try to greet” and there was also no disadvantage in employment to the applicant. The main fault lies with the defendant’s behavior in using an advisory method in front of other people. As it was hard to find sexual factors in the incident, what the applicant felt was judged as plain humiliation rather than sexual humiliation. As such, it could not constitute sexual harassment.

[Case 4]

1. Adjudicated to compensate 30 million won for compelling a subordinate to drink (May 5, 2007, Seoul Appellate Court 2006 na 109669)


A married male manager at an internet game development company had very often organized drinking sessions after work on the reason of promoting teamwork, and he also included the female unmarried employees. At such drinking sessions, he would compel female employees who could not drink alcoholic liquor for physical and health reasons to drink. Such drinking events often went on till dawn, disabling the female employees from returning home early. He had also often used sexual remarks of sexual harassment nature to the female employees at the drinking place or office. The manager’s aforementioned behaviors, which are infringement of the autonomous expression of opinion and behavior of his younger employees and violations of their personality freedom, are damage to others’ humane dignity. If their behaviors were confirmed to have caused others severe sufferings in their state of mind, it can also constitute illegal behavior.

2. Vice-Principal’s verbal and physical conduct at official dinner meeting of expecting female teachers to fill the glass of the male principal did not constitute sexual harassment. (Feb. 11, 2004, Seoul Administrative Court 2003 guhap 23387)

The dinner meeting was arranged by the 3rd grade elementary school teachers to welcome a newly appointed vice-principal (plaintiff), and they invited the principal and vice-principal. So, it was a place where the plaintiff and the teachers met for the first time. At the dinner meeting, participants were mainly discussing about teachings when some female teachers were given liquor-filled glasses by the principal and were suggested to toast. However, neither did they empty their glass nor did they reciprocate by filling the glass of the principal. The plaintiff, on seeing this situation, suggested that the female teachers should fill the glass of the principal. The plaintiff claimed that it would be more correct to view his verbal and physical conduct in this case as a recommendation for subordinates to reciprocate their superior’s toasting rather than an intention to discriminate against the female and asking them to pour liquor for the principal just because they are females. Other female teachers who heard the plaintiff’s suggestion to those female teachers about pouring the liquor for the principal felt unpleasantness but did not feel a sense of sexual humiliation or dislike. Integrating all the points in this testimony about the characteristics of the dinner meeting, relationships of the participants, place, the situation under which the plaintiff’s remarks were made, and whether there had been any sexual motives or intention, etc., the verbal and physical conduct of the plaintiff in this case, strictly speaking, is in line with our nation’s common sound knowledge and customary practices. So, it is difficult to conclude his remarks and behaviors as intolerable or are violations of kind mannerism or social order.