Legal Standards for Prohibiting
Discrimination under Labor Law and Key Judicial Precedents

Bongsoo
Jung (Labor Attorney, KangNam Labor Law Firm)

I. Introduction

Recently,
one of the most noticeable court rulings is one where the court ruled as
discrimination by social status in a case where the employer made up a
particular group of only non-fixed employees recently transferred and treated
them unequally to their regular employee counterparts. This verdict has
increased public interest in matters related to equal treatment. The
Constitution of the Republic of Korea (Article 11-①) stipulates, “...there shall be no discrimination in political, economic,
social or cultural life on account of sex, religion or social status.”  In aligning with this, the Labor Standards Act
contains a provision on equal treatment which includes the additional item of
‘nationality’, stipulating, “No employer shall discriminate against employees
on the basis of gender, or give discriminatory treatment in relation to working
conditions on the basis of nationality, religion or social status.” Other
provisions on equal treatment are gradually being introduced in other Acts as
social need arises to do so, regarding irregular employment status, age,
disability, and foreign workers, etc.

 There are two
principles the Court uses in identifying the criteria for determining whether discriminative
treatment, which it defines as “the same thing treated in a different way, or
different things treated in the same way”, is justifiable or not. First, in
order for a situation/action to be considered discriminative treatment, the
primary requisite is that the employees claiming discrimination should be
basically in the same working group with the target comparison employees.[1] Second, even though
the employees claiming discrimination and the target comparison employees are
working in the same workplace and at the same kind of job, if the employer
discriminates in their working conditions based upon reasonable criteria in
consideration of the detail and type of work and other conditions, this
discrimination can be considered justifiable.[2] In this article, I would like to review the criteria for judgment
of whether discriminative treatment is justifiable or not, and related cases.

 

II.
Gender Discrimination

1.
Criteria for judgment

Gender
discrimination is prohibited under Article 11(1) of the Constitution, with a
more detailed explanation given in Article 32(4): “Special
protection shall be accorded to working women, and they shall not be subjected
to unjust discrimination in terms of employment, wages and working conditions.”
 Article 6 of the Labor Standards Act
prohibits gender discrimination and includes penalties for violations. In
particular, the Equal Employment Act enacted in 1987 defines gender
discrimination (Article 2) as follows:

 First, the
term “discrimination” means that an employer applies different hiring and
working conditions to employees, or takes other
disadvantageous measures against them without justifiable reason on account of gender,
marriage, status within the family, and whether or not they are pregnant or
have had a child, etc.

 Second, it is
discrimination even if an employer applies the same hiring or working
conditions, but the number of one gender to whom the conditions apply is
considerably less than that of the opposite gender, thus causing a
disadvantageous result to the opposite gender. This reflects the fact that
indirect discrimination due to corporate culture can be deemed as gender
discrimination.

 Third, provided that
this shall not apply to cases involving any of the following items: ①Where a specific gender is inevitably
required in view of the nature of the duties; ②Where measures are taken to protect
maternity, such as during pregnancy, childbirth or breastfeeding by female employees,
etc.; or ③Other
cases where affirmative action measures are taken under this Act or other Acts.
These exceptions are designed to avoid any reverse discrimination. [3]

 

2.
Details of gender discrimination

Concrete
provisions regarding gender discrimination in the Equal Employment Act can be
summarized as follows: ①
An employer shall not discriminate on grounds of gender in recruitment and
hiring of employees. When recruiting and hiring female employees, an employer
shall not present nor demand certain physical conditions, such as appearance,
height, weight, etc., and marital status not required for performance of the
relevant duties (Article 7). ②An employer shall provide
equal pay for work of equal value in the same business. The criteria for work
of equal value shall be skills, efforts, responsibility and working conditions,
etc. required to perform the work (Article 8).  ‘Work of equal value’ in judicial rulings
means the same work when comparing men and women in the corresponding workplace
and nearly the same work in practical terms, or the work of basically the same
value as evaluated through objective job evaluations in spite of slightly
different jobs. Whether the work is of equal value or not shall be estimated in
comprehensive consideration of technology, working conditions, education,
career, working period, etc. [4]③An employer shall not discriminate on grounds of gender in
providing benefits, such as money, goods or loans, etc., in order to compensate
his/her employees aside from wages (Article 9). ④An employer shall not
discriminate on grounds of gender in education, assignment and promotion of
his/her workers (Article 10). ⑤An employer shall not
discriminate on grounds of gender in retirement age or whether certain workers are
dismissed or designated to retire. No employer shall make
a labor contract that stipulates marriage, pregnancy or childbirth
of female workers as grounds for resignation (Article 11).

 

III.
Discrimination Based on Nationality

1.
Criteria for Judgment

 Nationality refers to the status according to the Nationality Act,
and discrimination can exist for certain employees such as foreigners without
Korean nationality, overseas Koreans, and illegal migrant workers, etc.
Recently, discrimination due to nationality has caused significant social
issues due to the increased number of foreign workers. Article 22 of the
Foreign Workers Employment
Act enacted in August 2003 stipulates, “No
employer shall discriminate or unfairly treat any
person on the grounds that he/she is a foreign worker.” However, this article
does not include any penal provisions and only applies to non-professional
workers in relation to the employment permit system. Accordingly, the
prohibition of discrimination based on nationality follows Article 6 of the
Labor Standards Act that “No employer shall give discriminatory treatment in
relation to the working conditions on the basis of nationality,” and the penal
provisions therein. However, justifiable discrimination is allowed, with the related
Labor Ministry Guidelines explaining, “Determining whether  discrimination based on nationality exists or
not shall require consideration of all related items collectively: whether the
discrimination in working conditions was only based on nationality or not;
other entire factors regarding the working conditions such as wages and working
hours; and in addition, whether discrimination exists that exceeds reasonable
criteria for the work.” [5]

 

2.
Related cases

 There are many cases related to discrimination
due to nationality.

①A Constitutional Court ruling in 2007, in which it stipulated,
“Even though industrial trainees with a trainee’s contract provided labor
service under the employer’s direction and supervision, they then received
wages. In actual relations, as only foreign industrial trainees were excluded
from the application of major labor laws without justifiable reason, we find
this unreasonable.” The fact that industrial trainees
are excluded from some parts of the Labor Standards Act, unlike ordinary
employees, is arbitrary discrimination.[6] 

②Supreme Court
ruling in 1995: Foreign worker “A”
from Thailand, who came to Korea under
a trainee working visa, was seriously injured while working beyond the permitted sojourn
period.
Foreign worker A applied for compensation from the Employee Welfare Corporation for medical
treatment, but was
rejected by the Corporation as
foreign worker A was
an illegal migrant worker working
illegally. However, the
Supreme Court ruled that even though illegal employment is
clearly an act warranting
punishment,
the work already provided is actual performance that makes the worker subject to the
protection of labor law. Accordingly, illegal foreign workers may apply for and receive Industrial
Accident Compensation Insurance.[7] 

③Supreme Court
ruling in 2015: Some illegal foreign workers living in Seoul and Gyeonggi Province submitted a
report of their establishment of a
labor union to the Seoul Regional Labor Office on May 3, 2005, but their
application was rejected due to their illegal status. Even in the courts there
have been disputes on whether a labor union of illegal foreign workers is permissible
or not, but the Supreme Court ruled
on June 25, 2015 that it was.[8]

 

IV.
Religious Discrimination

1.
Criteria for judgment

The Labor Standards Act regulates
that no employer shall give discriminatory treatment in relation to working
conditions on the basis of religion, which includes specific religions, religious
beliefs, world view, socialist creed, or political line of a particular
political party, etc.[9]  However, with the exception of purpose-based
companies organized to carry out business directly connected to specific ideas,
it is not deemed a violation if there is discrimination regarding an employee whose
behavior is in conflict with the purpose of the company he or she works for.

 

2. Related cases

 ①In
2005, the Constitutional Court ruled as justifiable dismissal in cases where
the employee behaved in violation of the purpose of his/her employing company. “Whether there
is justifiable reason or not when an employer intends to dismiss an employee
shall be considered concretely for each individual case. Such general reasons are
that the employee’s violations should be serious enough to make it very
difficult to maintain continuous employment relations with the employer, which
means that the employer cannot expect any further work from the employee
concerned due to the serious violation. Justifiable reasons for dismissal include:
in cases where the employee’s work performance was seriously inferior to
his/her occupational abilities; in cases where the employee cannot work due to
some illness; and, exclusively for purpose-based companies organized to carry
out business directly connected to specific ideas, in cases where the employee
disagrees with the purpose of his/her employing company; and others.[10]

②In 1994, the Supreme
Court ruled that an employee’s behavior that violates the purpose of his/her employing
company is deemed a justifiable reason for dismissal. “Even though the
employee’s real estate speculation, which was the reason for disciplinary dismissal,
seemed like some minor misconduct in his personal life, in comprehensive
consideration of the purpose of his employer, the Urban Development Corporation,
which was established to create for citizens housing security and improve welfare
through residential land development and supply, housing construction, etc.,
and the work scope of the employee engaged in real estate-related compensation,
this real estate speculation by the employee could cause very negative effects
of the social evaluation for the Urban Development Corporation.” [11]

 

V.
Social Status

1.
Criteria for judgment

‘Social status’ which is a
position formed over a considerable time and part of social evaluation refers
to a social position that one cannot adjust through one’s intention or
performance.[12]  A judicial ruling on June 19, 2016 explained,
“Social status is a position formed over a long time in society and part of
social evaluation, and refers to the social classification that a specific group
of employees cannot adjust through their intention or performance.”[13]

 

2.
Related cases

Recently, there has been some
headline news on a judicial ruling regarding a case of discrimination owing to
social status. The employees concerned were transferred to non-fixed term
employment and then placed in their own group after being hired for temporary
positions. Unlike regular employees, the workers in this group were not eligible
for title promotions. Different salary regulations were applied, and they were
also ineligible for housing or family allowances, or meal expenses. The
employees concerned took legal action for the unpaid allowances, stating that
this discrimination was null and void due to it being a violation of equal
treatment according to Article 6 of the Labor Standards Act. The court ruled, “Besides
job, the type of work and position can be part of social status if they require
social evaluation or are social classifications that an employee cannot change
through intention or performance.” The court judged that being part of a group
of workers with non-fixed employment status was part of social status, adding, “With the exception of salary regulations, the same rules
of employment and personnel regulations apply to non-fixed term employees. The
quantity, quality and difficulty of their work and their contribution to the
company were not less than their regular employee counterparts, so this
discrimination amounts to a violation of Article 6 of the Labor Standards Act.”

 

VI.
Conclusion

 The Labor Standards Actcontains
a penal provision for discrimination on the basis of gender, nationality,
religion or social status, and an employee can seek an order for correction of such
discrimination through a petition or making a claim with the Employment Labor Ministry. Hereby, the employee can also retroactively claim that lower wageswere paid in a discriminatory manner. On the other hand, a particularly notable point in the prohibition of discrimination on the
basis of gender is that an employer shall not discriminate on such grounds
in recruitment and hiring of employees. Also, it can be deemed as indirect
discrimination when an equal number of men and woman are employed at entry
level, but this is not the case at the managerial level. The provision against discrimination
on the basis of nationality has become a social issue due to the increased
number of foreign employees, while regarding discrimination on the basis of religion,
more cases have been related to purposed-based companies rather than against particular
religions. Finally, in discrimination on the basis of social status, the courts
recently ruled discrimination exists against social status when an employer sets
up a certain working group only for those with non-fixed employment status.