In response to the ongoing scandals arising from the #MeToo movement in South Korea and abroad, the Korean government has responded by introducing tough new measures to tackle sexual harassment in the workplace. Effective May 29, amendments have been made to the Equal Employment Opportunity and Work-Family Balance Assistance Act (EEO Act), including tougher penalties for employers who fail to investigate sexual harassment allegations.
What Has Changed?
The key features under the amended EEO Act include:
- Sexual harassment training: Employers must ensure they comply with the amendments to the EEO Act by providing preventive sexual harassment training in the workplace at least once per year. The contents of this training must be made available so that all employees are fully informed of their legal obligations.
- Protections for victims and witnesses of harassment: The EEO Act prohibits disadvantageous measures being taken against victims or complainants. Such disadvantageous measures will include dismissal or demotion; disciplinary actions; not assigning work or other duties; discriminating against the victim in performance assessments or by excluding the victim from incentives, raises or other privileges; restricting opportunities for education or training; and bullying or ostracism. The EEO Act also provides protections for employees who witness or otherwise become aware of sexual harassment in the workplace.
- Obligation to investigate: In response to any report of harassment, an employer must, without delay, investigate the allegations while also taking measures to ensure the alleged victim does not experience any further humiliation. This is a change from the previous position, which only required employers to take steps against perpetrators once sexual harassment had been confirmed but did not otherwise require any investigation into mere allegations of sexual harassment.
- Confidentiality: Strict new confidentiality obligations will also be imposed on any person investigating a complaint, receiving a report or participating in the investigation of a complaint.
- Further obligations on employers: When sexual harassment in the workplace is confirmed, upon the victim's request, an employer must now take appropriate measures to protect the victim by offering him or her a change of workplace or paid leave. The employer must also take appropriate disciplinary action against the perpetrator, giving the victim an opportunity to be heard prior to taking any such action. In addition, the previous recommendation that a company take appropriate measures to protect a victim upon learning of sexual harassment perpetrated by its clients or customers has now been upgraded to a legal requirement.
These changes are accompanied by new administrative fines and penalties, including a possible prison sentence of up to three years if disadvantageous measures are taken against a complainant or victim.
Compliance
Companies should review their working policies and practices to ensure that they comply with the changes to the EEO Act, and where necessary update their sexual harassment policies and rules of employment.
The regulatory landscape in this area continues to be ripe for change in light of the hundreds of bills that have been proposed to the Korean parliament concerning sexual harassment and violence at work, including proposals to amend the Act on Special Cases Concerning the Punishment of Sexual Crimes, Sexual Violence Prevention and Victims Protection Act, Framework Act on Gender Equality and Protection of Public Interest Reporters Act. Employers should continue to monitor for further developments in this area.
Fatim Jumabhoy is an attorney with Herbert Smith Freehills LLP in Singapore. Lauren Lee is an attorney with Herbert Smith Freehills LLP in Seoul, South Korea. © 2018 Herbert Smith Freehills LLP. All rights reserved. Reposted with permission of Lexology.
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