Empoyers' Responsibilities Regarding Workplace Sexual Harassment
The Gender Equal Employment Act (GEEA) requires that employers conduct education sessions on the subject of sexual harassment, regardless of the number of employees, at least once a year. In principle, an opportunity to attend these education sessions shall be granted to all workers, but if an employee does not attend for reasons not attributable to the employer (e.g., insincerity of a worker), the company shall generally not be liable. The employer must conduct training for dispatched workers.
An employer who fails to conduct sexual harassment awareness training can be fined up to a maximum of 3 million won, and can be held accountable should there be a complaint.
In principle, the education sessions should be conducted through training, morning meetings, meetings, etc. and should last at least one hour. Use of the company’s intranet or remote communication training may meet the requirement. Whatever system is used must recognize and check attendance, record that each employee has completed the entire session and participated in the session tests, Q&A's or discussions.
In principle, since the sessions must be available to all employees and the records must show that each employee participated fully, if some employees are non-Korean speakers, the training must be provided in a language foreign employees understand.
Processing of Complaints:
A worker may report sexual harassment verbally, in writing, or by mail, telegraph, fax or internet.
The employer is required to handle all sexual harassment grievances directly (through the company's HR department or other appropriate body) or by delegating to the Labor Management Council within 10 days of receiving the complaint, unless there is a special reason, and then shall notify the worker concerned of the result or inform her/him of the handling or delegation of the grievance.
The employer is required to keep a ledger of grievance handling and to maintain the related documents for 3 years.
The employer is also supposed to make efforts to maintain confidentiality regarding the complaint.
Tips for Employers re Handling Complaints:
- Understand that male and female employees have different viewpoints and thus can have different reactions to certain statements and comments.
- Promptly treat and report each case of sexual harassment without hesitation.
- Consider using a neutral party for the investigation.
- Document all interviews and maintain confidentiality.
- Avoid any act or statement that can be interpreted as retaliation against the victim.
- Do not let either the victim or harasser interfere with the investigation.
Employer's Obligation to Prevent Sexual Harassment by Customers, etc.
An amendment ot the Act, effective 22 June 2008, extends the employes responsibilities to protecting employees from harassment by customers and other third party harassers. In the event that a worker is sexually harassed by a person who is closely related to work, including customers, and requests a remedy, the employee should take a possible action, such as change of workplace, relocation, etc.,
The employer is prohibited from dismissing or giving unfavorable treatment to a worker on the grounds that he/she makes a claim for damages or does not accept a sexual request from a customer, etc. Failure to adhere to this responsible can result in an administrative fine not exceeding five (5) million Won.
Actions Required if Grievance Confirmed
When sexual harassment in the workplace is confirmed, appropriate disciplinary actions or other measures similar thereto should be taken against the harasser, based on the severity and duration of the sexual harassment. The harasser may be fined up to 5 million Won, who is also entitled to due process.
The victim or the worker who claims to be a victim of sexual harassment shall not be subject to any undue dismissal or other disadvantageous measures. Violation of this right can result in imprisonment for not more than three years or a fine not exceeding 20 million Won. Should the victim so request, he/she may be transferred to another department.
Following are questions/answers provided by a Korean labor law firm:
Q) Does distribution of a 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 trainings such as employee seminars, regular meetings, department-level trainings and audiovisual educational trainings. 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 light 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 or her services have to impose disciplinary punishment?
A) In the event a dispatched employee initiates sexual harassment at work, the employer who uses his or 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 or 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.
Reference: Publication of the Ministry of Labor 『Sexual Harassment at Work, from its prevention to countermeasures』(March 2001)
K4E note: We have done our best to provide accurate and current information. However, it is possible that the laws related to sexual harassment in the workplace may be amended at any time. The above information is intended as a guideline and as a reflection of the situation as it exists at the time of posting. If you note any errors or ommissions, please advise us at firstname.lastname@example.org. You may also want to confirm the information with a legal expert.
Last Updated on 2010-10-16
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|Gender Inequality Centers in Universities||Sexual Harassment Complaint Options|
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