KWDI Korean Women’s Development Institute

This study examines workplace bullying and harassment in Korea to explore possibilities for prevention and resolution of workplace bullying within the existing legal framework, and proposes policy measures based on a survey of current regulations and legislations addressing workplace bullying in some other countries, drawing upon any relevant points or issues a comparative survey may highlight as pertinent to discussions in establishing such measures in Korea.

1. National policies including legal regulation and its effects

Firstly, the existing legal framework concerning workplace bullying in Korea was examined by analyzing lawsuits involving workplace bullying or harassment. This involved looking into legal precedents and previous determinations by the National Human Rights Commission of Korea, gathering media reports, and extensive research into the current situation as regards workplace bullying. Through this process three characteristics of workplace bullying in Korea were identified, based on which the following six categories of workplace bullying could be determined: (1) structural bullying or personal bullying depending on whether bullying is institutional or related to management policies, (2) internal to the organization or external to it (for instance, bullying by clients) depending on whether the perpetrator is a coworker or not, (3) discriminatory (for instance based on gender or race) or non-discriminatory bullying depending on whether the bullying is characterized by discrimination or certain biases. Despite the fact that workplace bullying in Korea takes many forms, there is as yet no separate provision within the current labor law that specifically prohibits or aims to prevent workplace bullying. Article 8 of the Labor Standards Act prohibits violence against workers, but this provision is limited since it applies only to employers and does not expressly prohibit violence by and from coworkers or superiors. In addition, although the Act on the Prohibition of Discrimination of Disabled Persons: Remedy Against Infringement on Their Rights defines ‘harassment’ quite broadly as “any physical, psychological, emotional, or verbal acts committed against persons with disabilities in the form of organized exclusion, neglect, abandonment, aggravation, harassment, abuse, monetary extortion, and infringement of sexual self-determination,” this is also limited by the fact that it merely prohibits discriminatory bullying or harassment without provisions for any recourse to rectification of discriminatory practices. At present, three possible means of legal recourse exist for victims of workplace harassment or bullying. One is to seek compensation for damages from the perpetrator or the employer. In addition to damage claims for any unlawful conduct by the perpetrator of workplace bullying, it is possible to claim liability for unlawful treatment or joint unlawful treatment from the perpetrator when employer is either said perpetrator, or abetted and/or participated in harassing the victim. And since according to case law an employer has duty of care, i.e. is obliged to consider and protect the safety and rights of any employee as an extension of the terms of the employment contract, it is possible to demand liability in cases where the employer has not fulfilled his or her duty to prevent workplace bullying or has failed to intervene or take appropriate measures against bullying.

The second recourse is legal action pursuant to the Act on the Prohibition of Discrimination. Compensation may be claimed in accordance with Act on the Prohibition of Discrimination of Disabled Persons: Remedy Against Infringement on Their Rights for damages incurred by discriminatory practice or conduct toward persons with disabilities (Article 46), while in cases of workplace bullying toward employers on or desiring to take parental leave, the Equal Employment Opportunity and Work-Family Balance Assistance Act provision prohibiting unfair treatment (Article 19 (3)) may be applicable. But these recourses are limited by the narrow language of these legislations, which are confined to instances of workplace bullying or unfair treatment by employers and not by coworkers or superiors (Article 14 (2)).

The third recourse is to apply for industrial disaster (occupational health and safety) care. Victims of workplace bullying can suffer from depression and other psychological consequences and mental health problems due to extreme stress, and there have been instances of victims committing suicide. Workers and surviving family members of workers who have suffered psychologically as a result of workplace bullying are eligible to claim occupational health and safety insurance payouts. However, the number of accepted claims for insurance payout for work-related psychological damages remain extremely low, with only 43 claims out of 129 being successful in 2012, 41 claims out of 122 in 2013, and 45 claims out of 135 in 2014. Measures to broaden the scope of work-related psychological illnesses that are accepted as damages falling under the purview of industrial disaster (occupational health and safety) are urgently needed.

2. Current situation with regard to workplace bullying

Through a survey of the current state of workplace bullying, both in general and according to gender, this study was able to determine the different forms of bullying in the workplace, their effects and consequences, and the ways in which such cases were dealt with within the workplace at present. One thousand people in the service sector, especially in work environments dominated by men as well as those dominated by women, and workplaces where the gender ratio was more or less balanced, were surveyed. An in-depth interview was also carried out using a structured questionnaire, with focus group interviews complementing individual in-depth interviews.

Realizing that there is a lack of accumulated research and data on workplace bullying, the focus of this survey was on a general understanding of the realities of workplace bullying among service sector workers. In addition, the responses were compared not so much individually and irrespectively of gender, but in the context of gender and the particular work environment to which each respondent belonged (for instance, whether their work environments were predominantly male or female). Of the total number of victims of workplace bullying surveyed, 31.5% admitted to experiencing operational bullying while 7.4% admitted to experiencing subjective bullying. In other words, workers’ exposure to workplace bullying (i.e. actual occurrence) was in fact four times higher than the respondents themselves were aware of. Although many of the respondents were in fact experiencing bullying at work, it appeared that only some of them aware that they were victims, despite the results indicating that the average occurrence of bullying was 78.2, or, roughly three times a week. Breaking down the results according to gender, women’s experience of gender-specific workplace bullying occurred at a rate of 33.2 times, or at least once a week. Being told to clean up the office pantry or to play host to guests since "you are a/the woman" were some of the examples of enforced gender roles, and this form of gender-related harassment showed the highest occurrence at an average rate of 13.8 times during a six-month period, with being addressed in an inappropriate manner the second frequent form of gender-based bullying and harassment in the workplace. In analyzing the survey results according to gender, it was found that women were far more likely to be victims of both operational and subjective bullying and at much more frequent intervals. As for the personal consequences of workplace bullying, women showed greater signs of depression, desire for aggression, and suicidal inclinations. Women were more frequently and at a much higher rate exposed to workplace bullying, and consequently were affected much more than their male counterparts. The status of women within the labor market, the power structure between the genders, and certain psychological tendencies no doubt played their part in these findings, and these are factors that need to be explored and analyzed further in future. Additionally, these findings imply the necessity of taking gender characteristics into account when legislating or policymaking with respect to workplace bullying and harassment. The results of the survey were also instrumental in determining the characteristics or organizational principles specific to particular workplaces, the different methods by which victims coped with workplace bullying, and the effects of workplace bullying as well as its costs.

The focus group interviews were conducted to determine the realities of workplace bullying. The main questions posed during both the focus group and individual in-depth interviews included: the different forms of workplace bullying or harassment workers are subject to depending on their gender and their form of employment, coping mechanisms when faced with bullying or harassment in the workplace, the consequences and felt effects of bullying, the atmosphere of the workplace, and possible measures for prevention, intervention and resolution. The respondents had experience of being bullied or harassed in their place of work by either their coworkers or their immediate superiors, and were selected with their demographical and sociological characteristics in mind for a balanced representation. Analysis of the responses according to certain recurring themes revealed the following as the most relevant issues in discussions about workplace bullying: ① defining workplace bullying ② repression and evasion as two factors fostering workplace bullying, ③ 'conflicts' and 'discrimination' arising from a competitive environment, ④ because one is a woman, ⑤ do in the workplace as you would do in the military, ⑥ increased vulnerability the weaker one is deemed, ⑦ deteriorating health, lethargy and/or rage, diminished work performance and lowered organizational commitment as consequences of workplace bullying, ⑧ safety measures to ensure protection and prevention, and restoring trust to foster community-feeling within the workplace as necessary changes to be made.

3. Legislation in Other Countries

In some western countries as well as in Japan, workplace bullying is understood as a serious threat to occupational health and safety and for human resources management, and the focus of discussion and policy implementation for effective prevention along with sexual harassment in the workplace. In contrast, previous studies into workplace bullying in Korea have tended to focus on sexual harassment or have centered mainly on research into specific occupations such as the health and medical sector. This study therefore looks at existing legislations and policies concerning workplace bullying in Japan, France and the UK to draw relevant lessons that may be instrumental to Korea.

Japan's legal system is in many ways similar to that of Korea, and legal recourse for victims of workplace bullying as well as current measures for the prevention of bullying involve prohibition, damage claims against employers or perpetrators for failing to fulfill their duty of care, and compensation through occupational health and safety insurance payouts.

In France, workplace bullying is addressed according to severity through dual recourse: in addition to the French Labor Code, the Social Modernization Act, an extensive anti-discrimination legislation and a general framework for equal treatment in employment and occupation offer regulation and preventive as well as criminal provisions to combat moral harassment in the workplace. Accordingly, lawsuits are common and continue to increase, while the high effectiveness of and trust placed in legal procedures for dealing with such cases guarantees the efficacy of such combative measures. Workers are provided with the means to actively confront and prevent harassment and bullying in the workplace through systems that give workers the right to warn and to stop work in reaction to moral harassment at work, as well as hold employers liable for failing to hold up their strict obligation to ensure safety (l’obligation de sécurité de résultat). Workplace harassment is understood in the context of occupational health and safety, and employers’ liability is widely recognized along with the need to strengthen their obligations toward workers. Due to this duality of approach in which the Labor Code provides the legal framework for sexual and moral harassment that is complemented by additional provisions on sexual and moral harassment in anti-discrimination legislation, workers who have been harassed or bullied in their place of work are able to select from a broad range of options which legal recourse to take as befits their particular case and circumstance.

The United Kingdom does not have any specific laws for dealing with ‘workplace’ harassment and bullying as does France, but the Protection from Harassment Act was passed in 1997 to regulate stalking. This law continues to regulate all forms of harassment. For instance, workers can claim damages against an employer pursuant to this legislation for any harassment that arises from an employment relationship (including post-termination harassment by a co-worker and harassment by third parties such as a client) if the employer is held to be vicariously liable for the act in question. The Equality Act of 2010 also prohibits harassment ‘related to’ a legally protected characteristic, which includes age, disability, gender reassignment, race, religion and belief, sex and sexual orientation. This law recognizes any act of harassment by any persons employed by the same employer or by an agent of the principal as harassment by the employer or the principal, although the employer may contest if he or she had taken all reasonable steps to stop harassment.