Supreme Court Decision 2007Du22498

Plaintiff, who was a credit card company’s Branch Head, repetitively committed acts of sexual harassment over 14 times (hugging, calling at night, asking for massage, etc.) against eight female employees who were under his control and supervision. The company terminated Plaintiff from employment on the grounds that he harmed teamwork by sexually harassing the female employees. However, as to Plaintiff's application of remedy for the first disciplinary dismissal, the Seoul Regional Labor Relations Commission acknowledged the first termination as unjust and ordered to restore him in his former position based on the excessiveness of discipline and defect in disciplinary procedure. The company revoked the first termination in accordance with the above remedy order and restored Plaintiff to employment. Thereafter, the company terminated Plaintiff from employment the second time based on additional facts that he hugged a female employee and persuaded female employees to keep his conducts secret and rationalize his conducts against the instruction of the company. The lower court ruled that the company’s termination of Plaintiff’s employment was unjust based on the reasoning that although the plaintiff's above acts could have caused the female employees to be sexually humiliated, some female employees regarded them as mere encouragement. The Supreme Court reversed the judgment below and demanded the lower court for a new trial on the following grounds: (1) A dismissal can be justified if the employee's fault is so serious that employment relationship with him cannot be continued in light of ordinary social norms. According to Article 2 (2) of the former Act on the Equal Employment for Both Sexes (amended by Act No. 7564 of May 31, 2005), the term "sexual harassment on the job" means that an employer, superior or co-worker makes another worker feel sexually humiliated or offended by sexual words or actions by utilizing his or her position within the working place or in relation with duties, or providing disadvantages in employment on account of disobedience to the sexual words or actions and any other demands. The prerequisite of "sexual words or actions" means actions such as sexual relation, or other sexual, oral and visual actions which make an ordinary and average person in the same position with the other party objectively feel sexual humiliation or offensive feelings in light of sound common sense and customs of the community. For the above sexual harassment to be established, the actors do not necessarily have to have a sexual motive or intent, but in consideration of specific relation of the parties, place of actions and circumstances, the other party's explicit or presumed response as to the action, contents and degree of the action, frequency and duration of the action, there must be actions which make an ordinary and average person in the same position with the other party objectively feel sexual humiliation or offensive feelings, and it must be acknowledged that the other party actually felt sexual humiliation or offensive feelings. (2) In a case such as this where a certain sexual harassment was so serious or repeated from the objective perspective of an ordinary and average person in the same position as to aggravate the working condition, the employer may become liable as to the victimized worker. Sexual harassers, if allowed to continue to work without a disciplinary dismissal, could aggravate a work environment to the degree where the victimized worker cannot tolerate it. Therefore if the disciplinary dismissal was imposed upon the worker who was responsible to such degree, it cannot be viewed as an abuse of a disciplinary right unless the disposition is acknowledged as patently unfair from an objective standpoint. (3) Plaintiff committed sexual harassment on the job to eight female employees who were under his control and supervision, repeatedly taking advantage of his superior position over 14 times for a certain period of time. Even if such sexual harassment happened without the female employees’ special awareness as it was triggered from an ordinary daily attitude formed by distorted social customs or culture on the job, such an excuse could not relieve the person from the seriousness of his behavior.



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