Workplace Sexual Harassment
Following is an overview of the rules regarding workplace sexual harassment in Korea.
There is a provision in the Gender Equal Employment Act (GEEA) that deals with workplace sexual harassment. It provides protection against language or behaviour that results in a worker feeling sexually humiliated, as well as against retaliation for having refused a superior or colleague's sexual advances. Even if the language or behaviour fall into socially accepted norms in Korean society, if the recipient feels sexually humiliated, the courts are likely to consider it sexual harassment.
Here are some examples of what would be classified as sexual harassment in a Korean workplace today: making comments about a person's body or physical appearance; repeatedly asking out a person who is not interested; asking personal questions about a person's social or sex life; calling someone a girl, babe, honey, hunk or stud; asking someone to pour drinks at a dinner table or bar; telling sexual jokes; hanging around or following someone (stalking); repeatedly giving personal gifts to someone; sending inappropriate e-mails, faxes or letters; or making facial expressions such as winking, throwing kisses or licking lips.
Not only supervisors, but also co-workers and subordinates can be defined as harassers under the act, as can vendors, customers (a provision addressing such third-party harassers was added to the Act in June 2008). Victims can include job applicants. The company is responsible for the behaviour of its staff outside the workplace as well as within, including a car, on business trips or at dinner, etc. Penalties can be imposed on both the individual perpetrator and her/his company if the latter is deemed not to have addressed the issue or complaint adequately.
The validity of a complaint is based on how the recipients felt and not on the intent of the accused, or on whether or not either party was intoxicated at the time. Judges are expected to evaluate the situation based on how any other reasonable person would have judged and reacted under such circumstances and whether or not work efficiency was impeded. If a company has failed in its responsibilities to provide adequate education sessions for all its employees can find itself in even more trouble if any staff member files a sexual harassment complaint.
NB: For more specific details, see specific pages in this section (see below for the list of pages and click on the one you want).
The following Q&A was prepared by a Korean legal specialist to help clarify the concept of workplace harassment in Korea.
Q) Do the 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 customer‘s 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, when the interviewer make any verbal or physical conduct of a sexual nature to the interviewee or makes sexual approaches/requests to interviewee.
Q) Is it possible for a female to be a sexual harasser?
A) Generally sexual harassment at work is committed by males rather than females 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 conduct of sexual nature passively or 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 sign of rejection. But as he or she gradually felt sexually humiliated and raised concerns 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 a sexual nature is also regarded as sexual harassment so long as there is a victim resulting from such conduct. 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 not sufficient provocation to be viewed as 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 and continues with such behavior, it can be regarded as sexual harassment at work. In that respect, hanging of 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 has the 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 victim’s response differs from person to person, the standard of judgment should therefore be based on socially accepted norm of how a reasonable person would react towards such verbal and physical conduct of sexual nature if he/she is 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’, ‘Darling’, 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 feeling in addition to a standard of judgment based on socially accepted norm of how a reasonable person would react towards such sexual discrimination if he or she is 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.
Reference: Publication of the Ministry of Labor 『Sexual Harassment at Work, from its prevention to countermeasures』(March 2001)
Photo: Australian Human Rights Commission.
The information in this section has been provided to Korea4Expats.com by lawyers in a number of Korean law firms. However, laws may be amended before we become aware of the changes. If you note any errors or ommissions in the information above, please let us know at firstname.lastname@example.org
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