Worldwide: Recent Developments In South Korea's Anti-Discrimination Laws

There have been some significant developments in South Korea's anti-discrimination laws:

• Employers have new statutory obligations to address workplace bullying and are subject to fines for noncompliance.
• Employees have the right to petition the Labor Relations Commission for relief in gender-discrimination and sexual harassment cases, and to demand damages.
• A February 2023 court ruling ordered the government's National Health Insurance Service to provide spousal coverage to same-sex couples, potentially opening the door to other discrimination claims based on sexual orientation.

In the past several years, South Korea has taken significant steps towards strengthening its employment anti-discrimination law. Although no comprehensive anti-discrimination law has yet passed, employers in Korea must take into account significant and recent statutory amendments and court decisions that have built upon existing anti-discrimination laws such as the Equal Employment Act, the Disability Discrimination Protection Act, and the Fixed-Term Act.

Workplace Bullying Is Now Statutorily Prohibited

The Korean National Assembly passed amendments to the Labor Standards Act (LSA), addressing the widespread but (until recently) overlooked issue of bullying at work or "gapjil," with some of the amendments becoming effective as of October 14, 2021.

Under the amended LSA, workplace harassment is defined as an act of incurring physical or mental suffering or a worsening of the work environment by employers or workers using their status or power to behave beyond the scope of working norms. Typical examples of prohibited workplace harassment include: (i) assaulting or physically threatening a victim employee; (ii) repeatedly and/or continuously making an offensive statement(s); (iii) damaging an employee's reputation by humiliating the employee or spreading rumors regarding personal matters; (iv) ordering an employee to perform personal chores unrelated to the employee's work; (v) excluding an employee with respect to important work-related information without any justifiable grounds; and (vi) assigning little or no work to an employee for a considerable period of time without any justifiable grounds.

These amendments set out the following as employers' obligations:

• Establish a convenient and reliable method for reporting incidents of workplace harassment.
• Conduct a timely, fair, and impartial investigation of the alleged harassment. The investigation should provide all relevant parties with appropriate due process, and it is advisable that all stages of the investigation be documented.
• Take immediate appropriate measures, such as disciplinary measures against the perpetrator of workplace harassment or changing their place of work when workplace harassment is verified. The employer must obtain opinions of the victim employees regarding such measures before taking them.
• Protect alleged victim employees during the period of investigation. When workplace harassment is found to have occurred, the employer must take appropriate measures for the victim employees such as relocating them to a different workplace, giving them a lateral transfer or granting a paid leave of absence, if the victim employees make such requests.
• Maintain and enforce strict confidentiality obligations. The participants in the investigation procedures, including persons who have investigated the case and received the report of the investigation, are subject to a strict confidentiality obligation not to divulge any secrets or confidential information (with exceptions for reporting to the employer or authorities to seek assistance).
• Retaliation is strictly prohibited. An employer may not dismiss employees or victim employees who reported the occurrence of workplace harassment in good faith, or treat them unfavorably.

The following penalties for non-compliance were introduced:

• There is an administrative penalty of up to KRW 5 million for an employer that (i) fails to promptly and objectively investigate a report of workplace harassment; or (ii) if harassment is found to have occurred, fails to take any necessary protective measures for the victim, or appropriate disciplinary or other action against the offender.
• Employers that retaliate against employees for reporting workplace harassment (e.g., termination, denial of promotion, unjustified negative evaluations) are subject to criminal liability.
• An employee who is found to have engaged in unlawful workplace harassment will be held personally liable to the victim employee in a civil lawsuit, and the company will be vicariously liable.
• There is an administrative penalty of up to KRW 10 million for an employer or relative (by blood or affinity to the fourth degree) of an employer who commits workplace harassment.
• There is an administrative penalty of up to KRW 5 million for an individual involved in an investigation of workplace harassment who improperly divulges secrets learned during the investigation.

New Paths for Relief for Gender Discrimination & Harassment Claimants

Effective May 19, 2022, for the first time, employees have the right to petition the Labor Relations Commission for relief in gender-discrimination and sexual harassment cases, and to demand damages. The Labor Relations Commission mediates, adjudicates, and issues rulings on labor disputes and unfair labor practices, including cases of unfair dismissal and discrimination. The compensation for an employee victim was only available via civil lawsuit until then.

If the Labor Relations Commission finds that gender discrimination in employment occurred, it may issue a corrective order, and require the employer to pay compensation of up to three times the actual damages to the employee. Any such corrective order may also be applied to other employees who have been discriminated against. The Labor Relations Commission is also empowered to issue corrective orders and to award up to treble damages where an employer has failed to take required measures with respect to a sexual harassment victim or harasser, or in case of retaliation.¹

Landmark Court Decision Recognizes Certain Rights of Same-Sex Couples

Despite longstanding advocacy efforts, South Korean statutes do not explicitly provide any anti-discrimination protections for LGBTQ+ individuals. However, a February 2023 ruling from the Seoul High Court changed this legal landscape in ordering the government's National Health Insurance Service (NHIS) to provide spousal coverage to same-sex couples.

Prior to this ruling, employees could register family members, such as spouses and immediate relatives, as dependents with the NHIS. So Seong-wook and his same-sex partner Kim Yong-min held a wedding ceremony in 2019 but were unable to register their marriage because their union was not recognized by the authorities. While Kim was able to initially register So as a dependent under the NHIS, the agency revoked So's coverage as a spousal dependent. So brought a lawsuit against the agency alleging discrimination and lost in the lower court, which did not deem same-sex unions the same as heterosexual unions. So appealed the decision to the Seoul High Court.

That Court reversed the lower court's decision and concluded that denying spousal coverage to same-sex couples was discriminatory. In doing so, the Court pointed out that "the dependents system of the National Health Insurance is intended to apply health insurance to those who do not have economic capacity and depend on working subscribers for their livelihood," and that "it is also necessary to take into account that the concept of living community, which should be protected by social security, differs from the existing concept of family due to changes in the situation of the times." The Court reasoned that, considering the purpose of the dependents system, same-sex couples living together wereessentially the sameas a "living community" in common-law marriages.

The Court further noted that "The defendant (NHIS) did not reasonably assert or establish whether there was a reasonable reason to treat both groups (same-sex and opposite-sex spouses) differently," adding that "the discrimination in this case is arbitrary discrimination that violates the principle of equality."

Noting that discrimination in recruitment, education and commercial services is prohibited under the law, and acknowledging that various forms of discrimination against sexual minorities exist in South Korea, the Court added that discrimination on the basis of sexual orientation could not be justified. "Anyone can be a minority in some way, and minorities themselves cannot be wrong," emphasizing that "in a society dominated by the principle of majority rule, the greatest responsibility of the courts, the last bastion of human rights, is to recognize and protect the rights of minorities." "Not recognizing dependents only for same-sex unions constitutes discrimination on the basis of sexual orientation."

Although this is the first time a South Korean court has ever recognized any right for same-sex couples, the ruling did not go so far as to recognize the legal status of same-sex couples. Citing to the Constitution and Supreme Court precedent, the court held that "we do not accept the argument that a common-law relationship is recognized between the plaintiff (Mr. So) and Mr. Kim based on the interpretation of the current statute." The NHIS said it would file an appeal with the Supreme Court, the highest court hearing cases.

Considering the High Court's focus on the purpose of the NHIS's dependents system (i.e., to provide health insurance to those who depend on working subscribers for their livelihood) in reaching its decision, cases challenging the unequal treatment of same-sex couples in areas such as pensions, inheritance, and funeral matters are expected to follow. Given the somewhat narrow ruling, it may be challenging for future plaintiffs to rely on this decision alone in sexual orientation discrimination claims in other employment contexts. In addition, it remains to be seen whether this ruling will pave the way for a comprehensive anti-discrimination legislation to pass, providing greater protection for LGBTQ+ individuals.

Court Ruling Prompts Marriage Equality Bill

Since this historical ruling, lawmakers in South Korea have introduced legislation that would extend the right to marry to same-sex couples. The marriage equality bill would amend the gendered definition of marriage in the country's civil code, allowing same-sex couples to marry and extending them the same rights and benefits afforded to heterosexual married couples. Meanwhile, the National Assembly is also considering legislation that would create civil partnerships as an alternative to marriage for both same-sex and heterosexual couples.

Recommendations for Employers with Korean Employees

Employers with Korean workforces should review their employment policies and practices to ensure that they comply with these changing legal developments. Beyond that, these developments show that there are changing sensitivities in Korean workplaces and broader society on discrimination, harassment, and bullying. Beyond strict compliance with the law, employers should also take those societal sensitivities into account in their employment practices.

Having said that, U.S. and E.U. multinationals with Korean workforces should avoid reading too much into these legal developments as a signal to impose their own "Western" perspectives on discrimination, which, for example, tend to include protected categories that are still unrecognized in Korea. Indeed, applying U.S. or E.U. policies on discrimination in Korea (or elsewhere) is a strategy that exposes companies to legal and cultural challenges.

Therefore, multinational employers should seek attorney advice in implementing employment policies and practices in Korea in light of these recent legal developments.

*Tae Eun Lee is a partner specializing employment law at Yulchon LLC in Seoul, South Korea.

Footnote

1. Note that alongside these new developments, the Equal Employment Opportunity and Work-Family Balance Assistance Act already provides penalties for acts of gender discrimination in employment, and workplace sexual harassment violations. Employees can file discrimination or sexual-harassment complaints with the Employment and Labor office, which can investigate, issue corrective orders, and impose administrative fines or refer matters for criminal prosecution in certain circumstances (e.g., for retaliation).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.