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There are numerous Korean labor and employment laws that prohibit employers from discriminating against their employees in a Korean workplace. These Korean workplace discrimination laws are found in a myriad of Korean statutes and regulations. This article on Korea’s discrimination laws shall provide a quick guide as to where employers and employees can locate the basic requirements under Korean law.
The major pieces of legislation are the following: the Korean Labor Standards Act; the Korean Equal Employment Opportunity Act; the Korean Fixed-term Workers Act; and the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion of Korea.
The Labor Standards Act of Korea
The Labor Standards Act (“LSA”) is one of the primary sources of labor and employment law in Korea and provides minimum standards for conditions of all employment. As far as discrimination is concerned, Article 6 of the LSA prohibits employers in Korea from discriminating based on gender. The Korean Labor Standards Act further prohibits employers from discriminating against employees in the workplace in Korea based on nationality, religion, or social status. For an article on what constitutes an “Employee” under Korean Law please see: Definition of an Employee under Korean Law.
Equal Employment Opportunity Act of Korea
The main purpose of the Korean Equal Employment Opportunity Act passed originally in 1987, was to ensure equal opportunity and treatment of men and women in employment. Specifically, Article 7(1) prohibits employers from discriminating on the basis of gender in the recruitment or hiring processes. Article 8(1) also prohibits gender-based wage discrimination by requiring employers to provide equal pay for equal work performed within the same business.
Fixed-term Workers Act of Korea
The Korean Fixed-term Workers Act, first passed by the National Assembly in 2006, set out to eliminate undue discrimination against part-time, fixed-term, or any non-permanent employees and improve their overall working conditions. Article 8(1) prohibits employers from discriminating between employees who have permanent positions as opposed to those who have indefinite employment positions if they are in the same business or workplace or if they have the same or similar positions.
Age Discrimination Act of Korea
The Korean Age Discrimination Act was passed in 1999. Korea’s Age Discrimination Act was ratified to contribute to the job security of the elderly and enable suitable employment opportunities for a rapidly aging Korean society. Article 4-4(1) of the Age Discrimination Act of Korea prevents employers from discriminating against employees on the basis of age without justifiable grounds. The scope of the law covers matters related to recruitment and employment; wage and welfare benefits; education and training; job placement, transfer, or promotion; and retirement and dismissal.
Burden of Proof/Compensatory Damages in Korea
Generally, it is the employer who has the burden to prove that the employee has either not been discriminated against or that the discrimination was justifiable under the law. Article 30 of the Equal Employment Opportunity Act of Korea explicitly states that the “burden of proof is shifted to the employers when resolving disputes arising out of this Act.”
As far as damages are concerned, Article 9(1) of the Fixed-term Workers Act of Korea does enable victims of discrimination to file a petition for a corrective order. However, the Korean Labor Standards Act, Korean Equal Employment Opportunity Act, and Korean Age Discrimination Act do not expressly provide avenues for relief outside of the normal, legal channels.
Thus remedying the alleged violation of law shall be filing a complaint to the Ministry of Employment and Labor, a civil lawsuit with the courts, or a criminal complaint with the Korean investigative authorities.
Recently the Supreme Court of Korea held that under Article 8 of the Korean Equal Employment Act, an employer in Korea was responsible for compensating a female employee who was a victim of wage discrimination for damages she suffered. The calculation was based on the wages she would have received but for the discrimination. However, for an employer, this is not the, only, detriment to the employer. The Ministry of Employment & Labor may impose labor audits, raids, and impose administrative fines.
If you are dealing with a workplace discrimination case and need legal advice on the matter, please feel free to Schedule a Call with an Attorney.
