[비즈한국] Companies sometimes make decisions that are difficult to explain by money alone. Understanding the laws or systems hidden within them can provide a deeper insight into the inner workings. ‘Useful Business Tips (Al-Ssul-Bi-Beop)’ introduces clues to help understand business flows.
I never feel comfortable when asked for advice on the topic of workplace sexual harassment. It is difficult to conclude whether harassment has occurred or what follow-up measures should be taken, which makes it hard to give advice. If sexual assault or molestation has occurred through the exercise of force or clear physical contact, sorting out the rights and wrongs is not difficult. To prevent any possible misunderstanding, I will clarify in advance that sexual assault and molestation are not the subjects discussed in this article.
In cases of sexual assault or molestation, civil liability for damages and criminal punishment are inevitable, let alone disciplinary action. Judgments and follow-up measures regarding such cases should follow the standard procedures applied in each respective process. However, when the problematic behavior is limited to verbal remarks and there is room for them to be considered part of work-related, ceremonial, or customary actions, it becomes difficult to decide what advice to give.
The degree and content of such concerns vary from person to person. Judgments on these matters will also differ depending on the individual, as personal subjective biases intervene. Please keep in mind that what follows is written from the perspective of a man in his 40s.
How do legal provisions and precedents explain "workplace sexual harassment"? Article 2, Subparagraph 2 of the Equal Employment Opportunity and Work-Family Balance Assistance Act defines workplace sexual harassment as: "a situation where an employer, superior, or employee uses their status within the workplace or in relation to work to cause another employee to feel sexual humiliation or aversion through sexual remarks or actions, or grants disadvantages in employment conditions or employment for not complying with such sexual remarks or demands."
Supreme Court judgment 2007Du22498 explains the criteria for recognizing sexual harassment under the aforementioned regulation as follows:
① It is not required that the perpetrator necessarily had a sexual motive or intent.
② Judgment is made by considering specific circumstances such as the relationship between the parties, the place and situation where the act occurred, the content of the other party's explicit or implied reaction, the nature and degree of the act, and whether the act was one-time, short-term, or continuous.
③ Workplace sexual harassment is recognized if an act objectively causes a general, average person in the same position as the victim to feel sexual humiliation or aversion, and it is acknowledged that the victim actually felt such humiliation or aversion.
However, the legal provisions and Supreme Court rulings are far too abstract. Even after reading them, it is difficult to grasp the criteria for when exactly workplace sexual harassment occurs.
Next, let's look at specific cases. The Gwangju High Court judgment 2024Nu11166 deemed that the remark "You need to be careful with contraception with your boyfriend" was an inappropriate mention of the female victim's private life that was unnecessary, and a remark that could make the victim feel unpleasant. However, taking various circumstances into account, it concluded that although the remark was a sexual act that could objectively cause an average person in the same position to feel sexual humiliation or aversion, it could not be considered sexual harassment.
On the other hand, the Seoul Administrative Court judgment 2023GuHap68296 determined that asking "Don't you have to look far, are you not thinking of having children?" in front of other team members constituted sexual harassment. The basis for this judgment was that "when a court hears a lawsuit related to sexual harassment, it must not lose its gender sensitivity to understand the issue of gender discrimination in the context in which the incident occurred and to realize gender equality."
However, the same court's judgment 2021GuHap66036 ruled that the remark "they should at least be kind," made in a KakaoTalk group chat with Korean Language Education students to the effect that "ugly women should at least be kind," was pointing out a general shortcoming of the subject and could cause feelings of insult, but it was difficult to see it as causing sexual humiliation or aversion.
Synthesizing the above cases, it is not easy to judge when sexual harassment occurs, and if it does occur, what level of sanctions is appropriate. What must be kept in mind is that even if sexual harassment is dismissed through a court ruling, the person who caused such an issue will suffer a fatal blow to their reputation at work. It is essentially a Pyrrhic victory. Furthermore, no matter how low the level of discipline is, it is difficult to continue working at that company for a long time once you have been disciplined.
Therefore, at work, one should only engage in work-related conversations. There is no reason for people of the opposite sex to have sensitive private conversations. In various consultations, I ask those who claim they are being treated unfairly, "Did you really have to say that at the office?" or "Was that conversation necessary for work?" and I rarely remember receiving a reasonable answer. However, I, as the advisor, also do not feel comfortable. In many ways, sexual harassment is a difficult and uncomfortable issue.