Recently we got a question about the definition of “sexual harassment” under Korean law.
Article 3-4 of The Framework Act on Women’s Development defines a “Sexual Harassment” as “sexual comments and behaviors incurring sexual mortification and repugnance, or giving disadvantages in employment for not accepting sexual advances or other request, on the part of employees in public sector, employers, or workers, using their status or job position related to jobs or employment relations, etc.”.
In order to be liable for a sexual harassment, the person does not necessarily have to have a sexual motive or intent. It can be inferred and proved by totality of situation such as the relationship with the person, place and circumstance of the behavior, content of the clear and referred response of the behavior, content and degree of the act, whether the act is ephemeral or short-timed or continual. There must be an act that provokes sexual mortification and repugnance to an average person who are in the similar situation generally, and from that the average person should feel the sexual mortification and repugnance. Therefore, a sexual harassment can not be established not merely for the reason that counterpart felt sexual mortification and repugnance without provoking sexual mortification and repugnance to the average person in the similar situation objectively.
Based on this standard, the Supreme Court of South Korea has held that the vice principle of elementary school who recommended a female teachers to serve alcohol to him twice at a dinner party did not commit a sexual harassment considering the nature of the party, relationship between participant, place, and actual intent(2005du6461).
We hope this to be of assistance to you. If you have more questions on this article or any other Korean law related issues, please send your inquiry email by clicking here or visit Legal Consultation page. Our Korean licensed lawyers, not a U.S. lawyer residing in Korea, will answer your inquiry.
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