CONTENTS
- 1. Workplace Sexual Harassment | Concept
- - Workplace Sexual Harassment | Severity of Punishment
- 2. Workplace Sexual Harassment | Assessment Criteria and Representative Types
- 3. Workplace Sexual Harassment | Employer's Duty to Take Measures
- - Prohibition of Adverse Measures
- - Employer's Duty to Provide Preventive Education and Establish Guidelines
- 4. Workplace Sexual Harassment | Response Strategy
- - Response Strategy from the Accused's Perspective
- - Response Strategy from the Victim's Perspective
- - If You Need Legal Assistance with Workplace Sexual Harassment
1. Workplace Sexual Harassment | Concept
Workplace sexual harassment is a type of sex offense referring to conduct in which an employer or a superior, exploiting their position, directs sexual remarks or behavior at a subordinate employee so as to make that person feel sexual shame or humiliation.
In addition, workplace sexual harassment may also be established between coworkers of equal rank where one party directs unwanted sexual remarks or behavior at the other so as to cause sexual shame.
Workplace sexual harassment is defined as follows in Article 2, Subparagraph 2 of the Act on Equal Employment and Support for Work-Family Balance.
-In addition to regular employees, part-time workers, casual workers, dispatched workers, and job seekers are also subject to protection
-The place of the conduct may include not only the company but also company dinners, outings, the commute home, and so on
-Cases in which an outsider, such as a customer, is the perpetrator are also included
Workplace Sexual Harassment | Severity of Punishment
Workplace sexual harassment is subject to the following levels of punishment depending on the conduct and the type.
| If the employer commits workplace sexual harassment | An administrative fine not exceeding 10 million won |
| Failure by the employer to conduct an investigation and take appropriate measures | An administrative fine not exceeding 5 million won |
| If the employer subjects a victim who reported workplace sexual harassment to a disadvantage | Imprisonment for not more than 3 years or a fine not exceeding 30 million won |
| If a person molests, by deceit or coercion, someone within the workplace who is under their protection or supervision | Imprisonment for not more than 3 years or a fine not exceeding 15 million won |
| If a person molests another within the workplace by assault or intimidation | Imprisonment for not more than 10 years or a fine not exceeding 15 million won |
| If a person makes sexual remarks through SNS or the like and causes another person to feel sexual shame | Imprisonment for not more than 2 years or a fine not exceeding 20 million won |
In the case of an employer, a higher level of administrative fine may be imposed where, for instance, the employer has received an administrative fine disposition for workplace sexual harassment within the past 3 years, or has committed workplace sexual harassment against a single person on multiple occasions.
2. Workplace Sexual Harassment | Assessment Criteria and Representative Types
The following examines the assessment criteria and representative types of workplace sexual harassment.
▶Assessment Criteria
-Consideration of the victim’s subjective feelings
-The perspective of a reasonable third party under generally accepted social norms
-Specific circumstances such as the hierarchical relationship within the workplace, the repetitiveness of the conduct, and the victim’s reaction
▶Representative Types
1. Physical Conduct
-Hugging, kissing, or embracing from behind
-Contact with a specific part of the body
2. Verbal Conduct
-Lewd talk, disparagement of appearance, or sexual analogies
-Asking about sexual matters, forcing someone to sit in the adjacent seat at a company dinner, etc.
3. Visual Conduct
-Posting or sharing obscene material
-Intentionally exposing a specific part of the body
4. Conduct Exploiting a Position at Work
-Making sexual demands while exercising influence over promotion, hiring, or the like
5. Sexual Harassment by a Customer or an Outsider
-If it occurs in a work relationship, the employer bears a duty to take measures
3. Workplace Sexual Harassment | Employer's Duty to Take Measures
This section examines the employer's duty to take measures regarding workplace sexual harassment.
Prohibition of Adverse Measures
Employees who report sexual harassment and the affected employees may not be subjected to unfavorable treatment.
Unfavorable treatment includes the following acts.
-Measures resulting in loss of status, such as dismissal, removal, or discharge
-Unjust personnel measures such as disciplinary action, suspension from duty, pay reduction, or restrictions on promotion
-Measures against the employee's will, such as withholding job assignments or compulsory transfer
-Discriminatory payment of performance evaluations, wages, bonuses, and the like
-Restriction of training opportunities
-Acts causing mental or physical harm, such as ostracism, assault, or verbal abuse
-Other disadvantages against the victim's will
A violation of the above measures may result in imprisonment of up to three years or a fine of up to 30 million won.
Employer's Duty to Provide Preventive Education and Establish Guidelines
An employer must conduct sexual harassment prevention education at least once a year, and a violation may result in an administrative fine of up to 5 million won.
Prevention education may be conducted through staff training, online lectures, and similar methods, but the mere distribution of materials is not recognized as education.
Prevention education must include the following matters.
-Internal handling procedures and procedures for victim remedy
-Other matters necessary for prevention
However, certain workplaces, such as those with fewer than ten regular employees, may conduct simplified education through the distribution of promotional materials and similar means.
Guidelines for the prevention of sexual harassment must be established and made available for employees to review, and the guidelines must include the following matters.
-Sexual harassment investigation and victim protection procedures
-Disciplinary procedures and levels for offenders
4. Workplace Sexual Harassment | Response Strategy
This section examines response strategies for workplace sexual harassment from the perspectives of both the accused and the victim.
Response Strategy from the Accused's Perspective
▶Organizing the Facts Before an Initial Statement
Document the date and time, location, content of the conversation, surrounding individuals, and the circumstances of the incident. These should be recorded as specifically as possible so that consistency can be maintained when making a statement.
▶Securing Objective Evidence
Organize materials such as text messages, messenger logs, emails, recordings, and CCTV footage that can show the conduct was a misunderstanding or carried no malicious intent.
Securing third-party statements that can prove the exchange was an official or routine conversation is also important.
▶Prohibition of Contact with the Victim
Reckless attempts to explain or make contact may instead become an unfavorable circumstance, so one's position should be conveyed only within the legal process.
▶Considering the Right to Remain Silent
If the facts are unclear or there is concern about making an unfavorable statement, reserving part of one's statement or exercising the right to remain silent is one available strategy.
Response Strategy from the Victim's Perspective
▶Securing Early Evidence
Make notes of the date and time, location, and manner of the sexual remarks or conduct, and collect conversation captures, recordings, and other records of the situation at the time.
▶Using Internal Grievance Procedures
A report made through the company's grievance committee, human resources team, or sexual harassment reporting center serves as a foundation for response should a disadvantage arise later.
It is advisable to make the report in writing and to record the date of receipt.
▶Requesting Victim Protection Measures
Requests such as a change of workplace, paid leave, and the blocking of contact with the offender are legitimate rights.
The employer may not refuse them, and the content of the request and the employer's response should be documented.
▶Using External Agencies
External agencies may also be used, such as a petition to the Labor Office, a criminal complaint to the police, or a petition to the National Human Rights Commission, and when filing a petition it is advisable to organize an overview of the case and the supporting evidence and submit them together.
▶Using Remedy Procedures When a Disadvantage Arises
If there is a personnel disadvantage such as unfair dismissal, transfer, or pay reduction, an application for remedy may be filed with the Labor Relations Commission within three months, and a claim for damages against the employer may also be considered.
▶Preparing for a Prolonged Response Period
Criminal proceedings may continue for several months or longer, so connection with counseling agencies and parallel psychological treatment, among other measures, should be considered for physical and mental stability.
If You Need Legal Assistance with Workplace Sexual Harassment
Workplace sexual harassment goes beyond mere discomfort and is a complex matter where various areas of law, including civil, criminal, and labor law, intersect.
At Daeryun Law Firm, attorneys experienced in sex crimes, labor, and criminal matters respond through a task force team, undertaking analysis of the background and context of a case, accurate application of the law and the formulation of a response strategy, and parallel handling of internal and criminal procedures.
