At an elementary school dinner party attended by school faculty, the Principal offered to pour alcohol to three male and three female teachers. The three male teachers then reciprocally offered the Principal alcohol, but the three female teachers did not do the same. The Vice Principal (Plaintiff/Appellee) twice requested the female teachers to offer the Principal alcohol as well. Two out of the three female teachers (Defendants) stated that they felt sexually harassed, the request causing the female teachers to feel a sense of sexual mortification or repugnance. Considering the nature of this dinner party, the relationship between the participants, the place, the prevailing situation when Plaintiff uttered the words in question, the lower court judged that the comment and language of Plaintiff in this case could not be interpreted as sexual harassment or unpardonable behavior in violation of public morals or social order, considering the common sense and customs of society as a whole. Defendants appealed. The Supreme Court interpreted the meaning of and criteria for determining the prerequisite "sexual speech and behavior, etc.," for a finding of sexual harassment under Article 2 Subparagraph 2 of the former Act on the Prohibition and Remedy of Sexual Discrimination (amended by Act No. 6915 of May 29, 2003). The Article stipulates that the prerequisite "sexual speech and behavior” for sexual harassment is behavior which provokes in the average person a feeling of sexual mortification and repugnance, viewed in terms of the sound knowledge and practices of society, usually involving a physical, linguistic, or visual act relating to the physical traits of man and woman or a physical relationship between the two. The Court stated that it was not necessary to show that the actor in question had a sexual motive or intent to establish sexual harassment, but rather that the acts would provoke a sense of sexual mortification and repugnance to the average person in a similar situation, taking into account the relationship between the parties, the place and circumstances of the behavior, the content of the clear or presumed response to the behavior, the content and degree of the behavior, and whether the act is fleeting or short-term, as opposed to continual. Considering the conversation of the dinner party location and the circumstances under which Plaintiff requested those acts, the Court interpreted Plaintiff’s request to be not of sexual intent, but of the intent that the offer of alcohol from the boss be reciprocated. Accordingly, the Court stated that sexual harassment could not be established merely by reason of the opposing party feeling sexual mortification and repugnance if it would not objectively provoke such sexual mortification and repugnance in the average person in a similar situation. The Court upheld the lower court’s decision and dismissed the appeal.
Supreme Court Decision 2005Du6461