In accordance with the Act on the Equal Employment for Both Sexes, a business owner shall be penalized for giving disadvantage to a victim of sexual harassment or a person who claims sexual harassment has occurred (Refer to Paragraph 2 of Article 14 of the Act). It is because the Act is based upon the premise that when an employee reports on a grievance such as sexual harassment at work, an employer shall strive to independently address such problem by delegating a person to deal with it and autonomous dispute resolutions shall be sought between labor and management (Refer to Article 25 of the Act).
If actions are not taken when verified sexual harassment had happened to an employee, it could be directly related to disadvantage for the victim. Until recently, protecting a victim of sexual harassment was considered autonomous regulations of a business owner. However, penal provisions of the Act which regulate violation against prohibition of disadvantageous actions seem to define protection of a victim of sexual harassment as a legal obligation and require a business owner to abide by prohibition regulations by imposing criminal sanctions for breach of such obligation.
However, there is no separate remedial procedure or measure regarding a company’s violation of prohibition of disadvantageous actions. Moreover, provisions that describe disadvantageous actions taken by an employer or scopes of the actions were not put in place when penal provisions for a business owner was introduced under the amendment of the Act on the Equal Employment for Both Sexes in 2007. It is clear much thought has not been given on definitions or scopes of disadvantageous actions of an employer. Cases of unfavorable actions taken against a victim of sexual harassment have been accumulated, but few cases were led to legal disputes. This seems to have originated an approach to working environment in which legal duty of a business owner to prevent sexual harassment takes priority and the business owner shall make an effort to autonomously address an employee’s grievance when he or she reports on a complaint.
Defining a business owner’s disadvantageous measure against a victim of sexual harassment as an independent action means business owner’s protection of the victim is considered greatly important. However, a disadvantageous measure of an employer against the victim is clearly distinguished from sexual harassment itself. Rather, absence of specific deions on natures and characters of disadvantageous actions only caused the Act to lose its purpose of legislation. Criminal sanctions against breach of prohibition of disadvantageous actions can also make it hard to confirm disadvantageous actions when disputing whether measures taken against a victim are disadvantageous. Therefore, legal natures and scopes of criminal sanctions against a business owner who violates prohibition of disadvantageous actions should be first determined. There also should be discussions about whether taking no action for a victim claiming to be sexually harassed falls in the category of prohibition of disadvantageous actions to further secure effectiveness of prohibition of disadvantageous actions.
It is likely that neglecting and taking no action until a person’s claim that he or she was sexually harassed is confirmed can be regarded as not coming under the category of disadvantageous actions because there is no obligation for a business owner to take follow-up measures for a victim of the harassment.
Effectiveness of protection of a victim of sexual harassment can only be secured when there is protection for a person who claims to be sexually harassed from various types of disadvantageous actions.