In the case of discriminating against workers who had recently been converted to open-ended contracts by creating a separate job group different from regular workers, the court ruled that this was discrimination based on social status. As a result of this ruling, interest in anti-discrimination and equal treatment is growing. Article 11, Paragraph 1 of the Korean Constitution stipulates that "no one shall be discriminated against in all areas of political, economic, social, and cultural life on the grounds of gender, religion, or social status." Article 6 of the Labor Standards Act stipulates equal treatment, which prohibits employers from discriminating against workers on the grounds of nationality, religion, gender, or social status. In addition to the Labor Standards Act, anti-discrimination provisions have been continuously added in accordance with social changes, and currently, anti-discrimination provisions for non-regular workers, the disabled, and foreigners are being introduced as individual laws.
How should we look at the judgment criteria for the prohibition of discrimination? Regarding this, the court defines 'discriminatory treatment' as treating the same thing differently and different things the same and presents two principles. First, in order to qualify as discriminatory treatment, the person who claims to have been discriminated against and the person he or she points out as a comparison target must belong to essentially the same work group. Supreme Court ruling 2015. 10. 29. 2013da1051 Decision
Second, even if a group of workers work in the same occupation at the same workplace, it is recognized as legitimate discrimination if reasonable standards are set in consideration of various conditions, such as work content and work type. Supreme Court ruling 2002. 2. 26. 2000da39063 Decision
■ Cases of Discrimination on the Grounds of Faith
In 2002, the National Human Rights Commission of Korea recommended the Korean Agency for Technology and Standards revise the Korean Industrial Standards (KS) in response to a complaint filed against a crayon manufacturer alleging discrimination in the color of crayons.” The reason for this is that it was recognized that naming a product of a specific color among crayons and watercolor paints as flesh color could violate the right to equality under Article 11 of the Constitution because it instills the perception that 'only a specific color is a skin color'.
The Korean Agency for Technology and Standards accepted the recommendation of the National Human Rights Commission of Korea and decided to use Yeon Ju-hwang (軟朱黃) instead of flesh color for stationery such as crayons. However, in 2004, six elementary and middle school students filed a complaint to the National Human Rights Commission of Korea, claiming that the use of the extremely difficult Chinese character Yeon Yeon-hwang (軟朱黃) was discriminatory against children. Afterwards, the Korean Agency for Technology and Standards finalized the name corresponding to the existing flesh color as apricot. Oh Kyung-seok, Ko Ki-bok, Kim Gap-sung, Shin Eun-joo and Park Cheon-eung, “Difference but Equal Migrant Human Rights Gilead”, National Human Rights Commission, 2011, p. 52
Just because the term “skin color” has disappeared from crayons and watercolors, it cannot be said that Koreans’ discrimination or prejudice against foreigners or immigrants has not been taken into consideration. However, just changing the flesh color symbolizing racial discrimination to an apricot color has a great educational effect in preventing implicit discrimination against immigrants in growing children.
■ Restrictions on the Use of Public Bath Facilities for Naturalized Women for Reasons of Race
After acquiring Korean citizenship in 2009, a naturalized woman in her 30s from Uzbekistan who had a child with her Korean husband wanted to use a sauna facility located in Dong-gu, Busan Metropolitan City, in September 2011. At the time, the owner of the sauna refused her access to the sauna because “her appearance is foreign and she may carry AIDS.” In response, a naturalized woman, Ms. K, filed her complaint with the National Human Rights Commission of Korea, citing racial discrimination against her.
The National Human Rights Commission of Korea judged that restricting naturalized married immigrant women from entering the sauna was racial discrimination without any rational reason. She advised the sauna owner not to deny her future use of the bathhouse facilities because of her race or other reasons. It was recommended to the Mayor of Busan Metropolitan City and the head of Dong-gu Office to strengthen management and supervision so that foreigners and naturalized immigrants are not subject to unreasonable discrimination, such as access restrictions when using bathhouse facilities. Oh Gyeongseok etc., the previous book, p. 55
■ The Rosa Parks Case that Sparked the Enactment of the Civil Rights Act to Ban Racial Discrimination in Public Places
In the United States, black slaves were emancipated by President Lincoln, but racial discrimination had been openly practiced in the South for decades. In December 1955, after working at a department store in Montgomery, Alabama, Rosa Parks got on a bus. But she was arrested by the police for refusing to give up her seat to a white passenger. At that time, in the southern United States, whites and blacks were separated from each other in almost every aspect of daily life by the racial discrimination law 「Jim Crow Act」. Public transport, such as buses and trains, was also forced to separate seating areas. Also, black children had to walk long distances because school buses were not provided.
The Rosa Parks incident spread to Montgomery, Alabama, where bus boycotts and large-scale protests against racism for 380 days. This movement, in which Pastor Martin Luther King Jr. also participated at the time, became the beginning of the American civil rights movement to improve the human rights and interests of African Americans. This incident led to the enactment of the Civil Rights Act of 1964, which prohibited racial discrimination in public places. Rosa Parks went through hardships, such as being kicked out of her department store after this incident, but her small act became an opportunity to change the human rights landscape in the United States. Rosa Parks․ Jim Haskins, , Translated by Choi Seongae, Literary Chunchusa (2012)
■ Gender Discrimination Criteria and Cases
According to Article 32, Paragraph 4, of the Korean Constitution, “Women's work is specially protected, and they are not unfairly discriminated against in terms of employment, wages, and working conditions.” Article 6 of the Labor Standards Act prohibits gender discrimination and provides penalties for violators. In particular, the Act on Equal Employment and Support for Single-Family Reconciliation (hereinafter referred to as the ‘Equal Employment Opportunity Act’) stipulates gender discrimination as follows:
First, “discrimination” refers to cases in which an employer differentiates employment or working conditions or takes other unfavorable measures against workers without reasonable grounds, such as gender, marriage, family status, pregnancy, or childbirth.
Second, 'gender discrimination' means that even if an employer applies the same employment conditions or working conditions, the number of men or women who can satisfy the conditions is significantly smaller than that of the other sex, resulting in unfavorable results for a particular gender. This includes cases where it cannot be proven that the conditions are justifiable. In other words, indirect discrimination in corporate culture can also be recognized as gender discrimination.
Third, exceptions to gender discrimination are cases where a specific gender is unavoidably required in light of the nature of the job, when measures are taken to protect female workers during pregnancy, childbirth, and lactation, and other active violations pursuant to this Act or other laws. In the case of employment improvement measures, etc.
Fourth, 'sexual harassment in the workplace' means that an employer, superior, or worker uses his or her position in the workplace or makes other workers feel sexually humiliated or disgusted with sexual words and actions in relation to work, or fails to comply with sexual words and actions or other requests. refers to disadvantages in employment.
The specific details of gender discrimination stipulated in the Equal Employment Opportunity Act are as follows: First, employers must not discriminate between men and women when recruiting or hiring workers. In particular, when recruiting and hiring female workers, employers shall not present or demand physical conditions such as appearance, height, weight, etc. that are not necessary for the job, or unmarried conditions.
Second, business owners must pay the same wages for work of equal value within the same business. The standard of equal value labor is the skill, effort, responsibility, and working conditions required for job performance. Here, 'labor of equal value' refers to work in which the labor of men and women compared to each other within the workplace is identical or substantially of the same nature, or labor recognized as having essentially the same value through objective job evaluation, etc., even if the job is somewhat different. Say what is relevant Whether or not labor is of equal value must be judged by comprehensively considering standards such as skills required for job performance, working conditions, academic background, experience, and length of service. Supreme Court Decision 2003. 3. 14., 2002do3883; Supreme Court Decision 2013. 3. 14., 2010da101011.
Third, employers shall not discriminate between men and women in welfare benefits other than wages, such as payments of money and valuables or loans to support workers' livelihoods. Fourth, employers must not discriminate between men and women in training, placement, and promotion of workers. Fifth, employers must not discriminate between men and women in terms of retirement age, retirement, and dismissal of workers. In particular, employers must not enter into labor contracts that presuppose a female worker's marriage, pregnancy, or childbirth as a reason for retirement.
■ Criteria and Examples of Nationality Discrimination
Nationality refers to status under the Nationality Act, and discrimination against foreign workers, Koreans with foreign nationality, and illegal residents who do not possess Korean nationality may occur. With the recent increase in the number of foreign workers, nationality discrimination has become a social issue. The 「Act on Foreign Workers’ Employment, Etc.」enacted in August 2003 (hereinafter referred to as the ‘Foreign Employment Act’) stipulates that “employers shall not discriminate against and treat foreign workers unfairly because they are foreign workers.” However, there is no penalty regulation, and there are limitations as it is applied only to non-professional foreign workers related to the Employment Permit System.
Discrimination based on nationality can be said to follow the provisions of the Labor Standards Act that prohibit discriminatory treatment in terms of working conditions on the grounds of nationality and related penalty provisions in cases of violation. However, if there is a reasonable reason for discrimination, exceptions are recognized.
According to the administrative interpretation, the determination of whether discrimination in working conditions on the basis of nationality is determined is whether ①discrimination in working conditions is based solely on nationality or ②whether discrimination in working conditions is based on discrimination in working conditions, such as wages and working hours. It is necessary to comprehensively judge and decide whether there was discrimination that deviated from reasonable standards by considering all factors in general. Administrative Interpretation 1994. 5.25. Geunji 68207-585.
On the other hand, the Constitutional Court judged that it is unconstitutional to not apply some of the labor standards guaranteed by the Labor Standards Act only to foreign industrial trainees if they are in a practical labor relationship, such as providing labor and receiving money and valuables under the direction and supervision of the employer. Constitutional Petition Case(Industrial Internship Program) 2007. 8. 3. hunjae 2004 Heonma 670.
For example, A, a Thai national, entered the country with an industrial training (D-3) status but was injured while working as an illegal alien exceeding the Period of Residence. A applied for medical treatment, but the Korea Workers' Compensation and Welfare Corporation rejected the industrial accident claim on the grounds that A was an illegally employed foreigner. Regarding this, the Supreme Court made it clear that illegal aliens are subject to crackdown under the Immigration Control Act but ruled that industrial accident compensation insurance applies to illegal aliens as well, to the effect that labor law protection should be provided for labor for which actual acts have already been provided. Supreme Court ruling 1995. 9. 15 Decision 94nu12067 (Cancellation of Care Disapproval Decision).
On May 3, 2005, foreign workers consisting of illegal residents in Seoul and Gyeonggi-do submitted a report on the establishment of a labor union to the Seoul Regional Labor Office, but it was rejected because they were illegal residents. There was a long-term dispute in the courts over whether to recognize these unions, but on June 25, 2015, the Supreme Court's consensus ruling recognized the establishment of a labor union composed of illegal immigrants. Supreme Court ruling 2015. 6. 25 Decision 2007du4995 Enforcement Agreement Judgement (Cancellation of dismissal of labor union establishment report).
■ Cases of Discrimination on the Grounds of Faith
The Labor Standards Act stipulates that there is no discriminatory treatment in terms of working conditions on grounds of religion. Discrimination on the grounds of faith is discrimination against workers on the grounds of a particular religion, religious belief, political worldview, socialist creed, or political line of a particular party. Kim Hyeong-bae, 『Labor Law』, 27th edition, Parkyoungsa, 2021, p. 239
However, in the case of a tendency project carried out for a purpose directly related to a specific ideology, discriminatory treatment is allowed in the case of acting against the purpose of the business.
‘Kyunghyang business’ refers to cases where businesses run by employers, such as politics, labor unions, religious beliefs, education, and the media, are closely related to specific creeds or ideologies. For example, if the editor-in-chief of a newspaper published by a trade union publishes an article against the trade union or a doctor working at a Catholic hospital contributes an article advocating abortion, the dismissal of these workers is more relaxed than that of ordinary workers. In other words, it means that workers engaged in the tendency business can be fired more easily than ordinary workers because the conditions for dismissal are alleviated if they have acted against the purpose of the business.
Meanwhile, as a case of discrimination based on religious beliefs, the Constitutional Court recognizes cases of conflict with the Kyunghyang Business as a legitimate reason for dismissal. “Whether or not there is a justifiable reason for dismissing a worker by the employer is a matter to be determined in detail depending on individual cases, but the general content is the reason why the labor relationship between the worker and the employer cannot be maintained, that is, the labor relationship with the worker. It must be such that the maintenance of the employer can no longer be expected. In other words, cases in which ①there is a defect in job aptitude or lack of ability to perform duties, ②a disease that makes it difficult to pay for labor under the contract, and cases in which workers lose this tendency in the so-called trend business closely related to a specific creed or ideology are common. It is recognized that it corresponds to a legitimate reason.” Constitutional Court ruling 2005. 3. 31., Constitutional Court Sentence 2003heonba12 (interpretation of justifiable reasons for dismissal).
The Supreme Court also recognizes an employee's act against the Kyunghyang Project as a just dismissal. Regarding the lawsuit for cancellation of the retrial decision on unfair dismissal relief filed by worker B, who works for the Seoul Urban Development Corporation, against the Central Labor Relations Commission, the Supreme Court said, “Even if real estate speculation, which is a cause for disciplinary action against workers, is nothing more than misconduct in the worker’s private life, the Supreme Court Various circumstances, such as the purpose of the establishment of the Urban Development Corporation, which was established for the purpose of stabilizing residential life and improving the welfare of citizens through the development and supply of housing sites and the construction of houses, and the work contents of workers in charge of real estate compensation Considering this comprehensively, it can be said that real estate speculation by workers belonging to the urban development corporation can be objectively evaluated as having a significant adverse effect on the social evaluation of the corporation. (Omitted) Considering that the plaintiff, even though he is not a public official, conducted a large number of real estate transactions for the purpose of real estate speculation as a person in charge of real estate-related affairs, the dismissal in this case constitutes an abuse of disciplinary discretion.” Supreme Court ruling 1994. 12. 13, 93nu23275 (judgement related to the Kyunghyang project).
■ Criteria and Examples of Discrimination Based on Social Status
‘Social status’ refers to a social status that is formed over a considerable period of time in society, accompanied by social evaluation, and which cannot be avoided by the worker’s own will or ability within the workplace. Seoul Southern District Court Sentence 2016. 6. 10., 2014 gahap 3505 (judgement related to social status)
The contents of recent rulings on discrimination cases due to social status are as follows: “The workers in question joined as contract workers and were converted to permanent contract workers. Unlike regular workers in the company, they were not subject to promotion. In addition, they are subject to different remuneration regulations than regular workers, and they were not paid housing allowances, family allowances, or meal allowances. The workers claimed that this discrimination was discriminatory treatment in violation of the equal treatment provisions of Article 6 of the Labor Standards Act, and they requested payment of allowances.”
Regarding this, the court said, “Not only jobs but also occupations and positions within the workplace can be classified as social status if they are accompanied by social evaluation or cannot be escaped by the worker’s own will or ability.” The court said, “Only the remuneration regulations are applied differently, and the same employment rules and personnel regulations are applied to workers on indefinite contracts and regular workers, and it is difficult to say that workers on indefinite contracts are less in terms of quantity, quality, difficulty, or contribution to the company. It was judged that it violated Article 6 of the Labor Standards Act by citing points, etc.”
Finally, there are penalty provisions for discrimination based on nationality, religion, gender, or social status as mentioned in the Labor Standards Act, and workers can seek correction of discrimination through complaints to the Ministry of Employment and Labor. Employees can claim retroactively for lost wages due to discriminatory disadvantages. In particular, what should be noted about the prohibition of discrimination against gender is that the anti-discrimination regulations are also applied at the recruitment and hiring stages. Even in the case of nationality, the prohibition of discrimination has recently become a social issue due to the increase in foreigners, and even in the case of discrimination on the grounds of faith, there are many cases related to the Kyunghyang Project rather than a specific religion. If a non-regular worker is converted into an indefinite contract worker and discriminated against by setting a separate job type, it is considered discrimination based on social status.
