Contributed By Yoon & Yang LLC (Seoul - HQ)
Korean labour laws that prohibit employers from discriminating against employees include the (i) Labor Standards Act, (ii) Equal Employment Opportunity Act, (iii) Fixed-term Workers Act, (iv) Act on the Protection, etc. of Temporary Agency Workers (the “Temporary Agency Workers Act”), and (v) Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (the “Age Discrimination Act”). The foregoing legislations protect employees from various types of discriminations identified in the respective Acts’ legislative intent and purpose as described below.
Labor Standards Act: Article 6 prohibits employers from discriminating against employees based on gender. Further, employers are prohibited from discriminating in relation to employees’ working conditions based on nationality, religion or social status.
Equal Employment Opportunity Act: Article 7(1) prohibits employers from discriminating on the basis of gender when recruiting or hiring employees. Also, Article 8(1) prohibits wage discrimination by requiring employers to provide equal pay for equal work performed within the same business.
Fixed-term Workers Act: Article 8(1) prohibits employers from discriminating between employees under definite employment contracts and other employees under indefinite employment contracts who work in the same business or workplace, or in the same or similar positions.
Temporary Agency Workers Act: Article 21(1) prohibits employers of agency employees (ie dispatch agencies) and users of dispatched agency employees (ie companies that use dispatched agency employees; the “User Company”) from discriminating between such dispatched employees and other employees of the User Company who perform the same or similar work.
Age Discrimination Act: Article 4-4(1) prohibits employers from discriminating against employees on the basis of age without justifiable grounds as to the following: (i) recruitment and employment; (ii) wage, provision of money and valuables other than salary, and other welfare benefits; (iii) education and training; (iv) job placement, transfer or promotion, and (v) retirement and dismissal.
Burden of Proof
Ordinarily, the party raising a legal claim bears the burden of proof in substantiating his or her claim. However, the Korean labour laws determine whether laws have been violated based on the substantive, as opposed to formalistic, standards when the employment relationship between an employer and an employee is at issue. In particular, Article 30 of the Equal Employment Opportunity Act expressly provides that the burden of proof is shifted to the employers when resolving disputes arising out of this Act. Even in practice, when issues relating to discrimination arise, it is the employers that have the burden of proof in showing either that (i) the employee has not been discriminated against or (ii) the discrimination is justifiable.
Relief and Damages
Article 9(1) of the Fixed-term Workers Act and Article 21(1)2 of the Temporary Agency Workers Act enables discriminated-against fixed-term employees, part-time employees and dispatched employees to file a petition to the Local Commission for a corrective order against the discriminations such employees were subject to. To the contrary, the Labor Standards Act, Equal Employment Opportunity Act and Age Discrimination Act do not expressly provide for seeking relief from the Local or National Commission and, thus, remedies for violations of these Acts, including unlawful discriminations, can be obtained through filing (i) petitions with the Ministry of Employment and Labor, (ii) civil lawsuits with the court, or (iii) criminal complaints with the investigative authorities.
Separate from the above, an employee may seek compensation for pecuniary damages and/or emotional distress he or she suffered due to the employer’s discrimination that lacks reasonable cause. In this regard, the Korean Supreme Court has previously held that the legislative purpose behind the Equal Employment Opportunity Act is to effectuate the principle of equality under the Constitution and to actualise equality in employment across the genders by guaranteeing equal opportunity and treatment between men and women. In the light of such legislative purpose, an employer’s payment, without reasonable cause, of a lower wage to female employees compared with male employees who perform work of equal value within the same business constitutes unlawful conduct that violates Article 8 of the Equal Employment Opportunity Act. In such a situation, therefore, the employer is responsible for compensating a female employee who was subject to wage discrimination for the damages she suffered measured by the difference between the wage she actually received and the wage she would have received but for the discrimination.