KWDI Korean Women’s Development Institute

As legal progress has been made in women's labor, direct or indirect sexual discrimination was banned, sexual harassment illegalized and maternity protection increased. Despite the legal development, however, many female workers are still suffering from direct or indirect sexual discrimination and sexual harassment at the workplace and find it difficult to fully take advantage of maternity/parental leave and other relevant benefits. The gap between law and reality represents the lack of legal effectiveness. What is more, the courts, which should be the last bastion of women's rights as workers, have contributed to this gap barely considering the purpose of legislation because of the courts’own gender stereotype.

Thus, this study analyzes court decisions related to women's labor and review on courts’interpretation from a gender perspective. If, under current law, courts’interpretation have to be confined, legislative suggestions should be made. For this, court decisions are categorized into 4 sections - ① sexual discrimination, ② sexual harassment, ③ female workers' protection systems, ④ work-related diseases of female workers and ⑤ non-regular female workers. Concerning sexual discrimination and sexual harassment, decisions by the National Human Rights Commission of Korea, the authentic interpretation body, are also analyzed to reveal the difference of viewpoints between the courts and the NHRCK. This analysis shows that Korean courts, in many cases, tend to follow general principles of the labor law, not based on a gender perspective. The courts should more broadly apply related laws, creating standards of interpreting with the use of objective data like statistics, application of clauses concerning indirect discrimination and change in interpretation about burden of proof and subjective intent. In work-related diseases of female workers and non-regular female workers, gender-specific characteristics and reevaluation of job values should particularly be considered, for gender perspective cannot be hardly derived. Finally, on issues difficult to be solved even with changes of courts’ interpretation, laws must be revised. The new laws should contain, among others, amendment to the provisions concerning the definition of discrimination; legal basis for job evaluation; prohibition of discriminative retaliation; expansion of the scope of speech, behavior and persons who commit the offense of sexual harassment; expansion of direct/indirect employer's liability for sexual harassment; expansion of the scope of maternity protection; expansion of the scope of application of the Law of Industrial Disaster Compensation Insurance and gender consideration; and stating the principle of equal pay and condition for work of equal value in laws related to non-regular workers to practically ensure women's labor rights from a gender perspective.