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2002-10-28 15:26:24, 조회 : 404 |

The Decade since the Enforcement of the Gender Equality Employment Act : The Achievements and Tasks / by Elim Kim / KWDI Research Reports/Women's Studies Forum, Vol.16 / December 2000
Elim Kim, Senior Fellow
Introduction
The Gender Equality Employment Act (GEEA) of Korea was legislated on December 4, 1987, and came into effect in April 1988. Its purpose is to contribute to the improvement of the status of working women and promotion of their welfare by securing equal opportunity and treatment between men and women in any employment in conformity with the idea of equality in the Constitution, protecting the maternity and developing their vocational ability. Until now, there has been considerable development of the institutions and policies related to working women through the revisions of the GEEA on April 1, 1989 (1st), August 4, 1995 (2nd), and February 8, 1999 (3rd). However, discrimination against women in employment opportunities and in working conditions still remains despite the legislation and the revisions of the GEEA. To make matters worse, the disadvantages in employment due to the recent economic crisis fell mainly on women. In light of this Korean situation, the effectiveness and function of the GEEA is bing doubted. Consequently, this study will clarify the achievements and problems of the GEEA for the last decade and will survey and analyze how the GEEA is utilized, applied, and enforced in cases of discrimination against women at the work places. Also, it will suggest the tasks and measures to be taken for the GEEA to more effectively guarantee the equal employment rights of men and women in the 21st century.
Achievements and Tasks of the Gender Equality Employment Act since the Decade of Its Implementation
1. Achievements and Tasks in Preventing Discrimination Against Women in Employment
Discrimination against women in employment was legally prohibited for the first time when the Constitution was promulgated on July 17, 1948. Since then, the Labor Standard Act was legislated on May 10, 1953, which had a provision that the employer should not discriminate against male and female employees and imposed a penalty on the employer who violates the provision, in an effort to realize the Constitution's principle of gender equality in labor relations. However, the provision regulates discrimination abstractly and comprehensively without defining or providing standards for discrimination, which makes it difficult to be applied to concrete and various cases of discrimination against women in employment at the work places. Also, this provision has the limit of being unable to regulate the discrimination against women at the stage of recruitment and employment. And, until the 1970s, there had been very low social awareness of and policy concerns with equal employment of men and women mainly due to the patriarchal culture combined with Confucianism and due to the economic policy to accomplish rapid growth. Therefore, although gender discriminatory customs and practices have been prevalent in employment, there were no cases in which an employer was given administrative or legal regulation because of discrimination against women in employment. Thus, GEEA was legislated to solve such problems.
A. Achievements 1) The GEEA defined discrimination for the first time in the legislative history of Korea upon the its second revision in 1989. The GEEA defined discrimination as a business owner's act that discriminates against a worker in the conditions of recruitment or work, or takes other unfavorable measures without reasonable reason, by reason of gender, marriage, status in family, pregnancy, etc. And upon the its 3rd revision in 1999, the concept of indirect discrimination was introduced by inserting the following into the above definition: In this case, the discrimination shall also include where the business owner sets the standards or conditions for personal affairs which either men or women find difficult to meet. Therefore, the GEEA was able to regulate not only the direct discrimination of taking unfavorable measures against a specific gender by treating males and females differently, but also the indirect discrimination of incurring an unfavorable result to a specific gender although it might appear gender-neutral in its equal application to both genders. 2) The GEEA has expanded the range of prohibited types of discrimination upon each of its revisions, and at the present time, it has five provisions for preventing business owners from discriminating against women in recruitment and employment, wages, money and goods other than wages, educational training, assignments and promotions, age limits, retirements and dismissals. 3) The GEEA clarified the fact that discrimination is a criminal offense by imposing the criminal penalties on all the discriminatory actions which violated GEEA. The number of penalties has been increased upon each revision and the degree of the penalties has been raised. 4) As a result of the administrative guidance and corrective measures by the Ministry of Labor such as monitoring the gender discriminatory employment rules and recruiting advertisements, many enterprises eliminated the female bank clerk system, the female office clerk system and the different pay-roll schedules by gender which were unfavorable to female workers, and the number of discriminatory advertisements and employment rules has been reduced. 5) With the implementation of the GEEA, Korea was able to ratify the basic International Agreements such as The Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (No. 100), The Convention concerning Discrimination in Respect to Employment and Occupation (No. 111) adopted by the ILO.
B. Problems and Tasks 1) The GEEA's concept of indirect discrimination is too ambiguous to be applied in the actual the cases of discrimination against women in employment. 2) The GEEA does not prohibit discrimination against women and men but only discrimination against women. So, men have not been interested in it and have not regarded it as an act to secure human rights. 3) Although penalty is supposed to be imposed in the case of a violation of the GEEA, its effect on deterring discrimination against women is not much because the degree of penalty is too low.
2. Achievements and Tasks in Laying the Foundation for Promoting Women's Employment
A. Achievements 1) Upon its second revision in 1989, the GEEA provided the legal basis for the temporary measure to treat women favorably for the purpose of eliminating any existing discrimination for the first time in the legislative history of Korea. This legislative measure has the significant meaning of promoting de facto gender equality, based on the historical experience and awareness that only equality in opportunity cannot effectively eliminate gender discrimination that has been practiced structurally for a long time. This measure especially has an important goal of eliminating gender segregation in the labor market. According to this, the female employment quota system in civil servants recruitment tests was introduced in December 1995 and the female employment incentive system for public industries was introduced in 1995. 2) The GEEA strengthen vocational training for women through the establishment of female training centers, such as An-Sung Women's Technical College and Working Women's Houses.
B. Problems and Tasks 1) GEEA does not have a concrete provision concerning the temporary favorable treatment measures in employment. So, the measure has not been implemented in any private enterprises until now. In the future, in Korea as in many other foreign countries, a business owner should make an autonomous plan to improve the situation of unequal employment at the workplace through consulting with the labor union or the worker's representative. Furthermore, in order to promote the participation of women in the male-dominant occupations, tasks, and departments, the temporary favorable treatment of women in vocational training, employment and promotion should be implemented. Therefore, gender segregation in the labor market will be effectively eliminated and enterprises can maximize the utilization of their human resources. 2) The effects of the vocational education and employment guidance of Working Women's Houses in 45 places nationwide are not too low compared to their budget investment. So, their management should be evaluated and improved.
3. Achievements and Tasks of the Measures to Support Workers with Family Responsibilities
A. Achievements 1) Before the GEEA was legislated, due to the deep-rooted stereotyped gender role division and lack of institutional support machinery to promote the compatibility of employment and child care, family care and domestic chores, many working women had lost their jobs either voluntarily or involuntarily with marriage, pregnancy, childbirth, and child care. In order to solve such a problem, the GEEA provided the child care leave system and the establishment of nursing facilities at the workplace for women for the first time in the legislative history of Korea. Thereby, workers who have an infant under one year of age can utilize the leave system for child care within one year of birth without being unfavorably treated. Furthermore, upon the second revision of the GEEA in 1995, the range of the beneficiaries of the child care leave was expanded to include men. This measure was intended to move away from the traditional gender role division and enable both men and women to jointly participate in employment and be jointly responsible for child care. 2) The GEEA has had a considerable impact on introducing the child care leave system and, family care leave system as measures to assist the family life of the civil servants and teachers since 1995.
B. Problems and Tasks 1) The child care leave in Korea is unpaid leave. So, not only business owners but also workers are reluctant to utilize it. In order to solve the problem, the loss of income during the child care leave should be implemented through social insurance such as the Employment Insurance Fund because the child care has a significant social function of providing human resources for enterprises, society, and the nation. 2) The child care leave system in Korea takes only one form in that a worker does not work at all during the child care leave. There is no such system as shortened/flexible employment for child care, which is available broadly in the child care leave system of foreign countries. In order to promote its effectiveness, the patterns of child care leave should be diversified so that workers can choose flexible, more suitable employment patterns. 3) The GEEA uses terminology which is based on the premise of the gender role division stereotype that child care is a woman's job by prescribing the subject of child care leave as a working women or worker who is her spouse taking her place. This terminology should be revised as 'worker.' 4) At the present time, the family care leave system is granted only for civil servants and teachers to take care of the parents, spouse, children, or the parents-in-law who require long-term care due to accident or illness. It should also be granted to general workers . 5) In Korea, the so-called family compatible employment patterns such as part-time employment and dispatched employment are concentrated mainly on women not because of the voluntary choices of women but because of involuntary factors. As a result, there is a problem of the employment instability of women and the reinforcement of the stereotyped gender role division rather than the positive result of expanding women's employment opportunities.
4. Achievements and Tasks in Preventing Sexual Harrassment at Work
A. Achievements Sexual harassment at work has been prevalent in the decadent and male-dominant work culture and has caused a lot of damage to women's employment and the human resource utilization. However, there has been no practical legal basis to regulate it. The Basic Act for Women's Development legislated in December 1995 defined the term 'sexual harrassment' for the first time in the legislative history of Korea and provided that the state, and local governments and the business owners shall take appropriate measures so as to prevent sexual harrassment so as to foster a working environment that promotes gender equality. However, this act did not provide for the concrete responsibilities for the prevention and redemption of sexual harrassment nor did it provide its definition. 1) In order to solve such a problem, upon its 3rd revision in 1999, the GEEA defined sexual harrassment at work as 'the act of business owner, worker, or his or her superior deteriorating the working environment by giving disadvantage in employment or causing sexual humiliation to another worker through sexual words or actions making use of the position within the work or in relation to work. 2) The GEEA imposed the responsibility on the business owner to prevent sexual harrassment and to provide a safe working environment for workers through providing education to prevent sexual harrassment at work and by transferring the offender of sexual harrassment to a different section and by taking punitive measures. If these responsibilities are not carried out, the business owner shall be subject to administrative fine for negligence of 3 million Korean won or less. 3) The GEEA also provides that the business owner should not take unfavorable actions against the victims of sexual harrassment. The business owner who violates this duty shall be subject to a criminal fine of 5 million Korean won or less.
B. Problems and Tasks 1) The GEEA lacks a provision for prohibiting sexual harassment and for punishing the business owner who commits sexual harrassment at work. 2) Compared to the Gender Discrimination Prevention and Relief Act which was legislated on February 8, 1999, and applies to public institutions and employers in employment, education, provision and utilization of goods, facilities, services, etc., enforcement of laws and policies, GEEA's method of dealing and restraining sexual harrassment is more restrict. And the two acts are different in their definitions of the concept of sexual harrassment. Due to this, confusion in their implementation can occur, there is a need for its clear regulation.
5. Achievements and Tasks in the Development of Women's Labor Administration
A. Achievements 1) The GEEA systematizes the women's labor policy by letting the Working Women's Welfare Basic Plan be established every five years since 1994 (First : 1994-1997, Second : 1998-2002). 2) Since the enforcement of the GEEA, administrative agencies related to working women have been continuously expanding. At the present time, these include the Bureau of Working Women with the two departments of Working Women's Policies and Women's Employment Assist in the Ministry of Labor. In addition, the departments of working women operate in 6 local bureaux of labor, and 46 local labor offices operate windows to receive reports of discrimination against women in employment. 3) The Month of Equal Employment Events has been held every October since 1995 and commemorative conferences, awards to those who contributed to equal employment, and various kinds of discussions and events have been held nationwide.
B. Problems and Tasks 1) The Working Women's Committee, which had been established under the Ministry of Labor to review important issues related to the Working Women's Welfare Basic Plan and the policies based on the GEEA, was abolished upon its 3rd revision in 1999 by the governmental policy on structural rearrangement because the committee had insufficient records of holding conferences. This outcome shows that the Ministry of Labor had been passive in hearing the opinions of experts, industry-labor organizations, and women's organizations in the formulation and implementation of working women's policies. 2) The monitoring and evaluating of the Working Women's Welfare Basic Plan and the implementation of the GEEA should be done continuously. 3) In order to put into effect the administrative supervision related to the implementation of the GEEA, it is necessary to establish an agency solely in charge of women's employment issues in all the local labor offices. It is also necessary to increase the number of women's labor inspectors (about 60 persons), which at the present time account only for 7.5% of the total of 800 labor inspectors.
6. Achievements and Tasks in Dealing with the Cases of Discrimination Against Women in Employment
A. Achievements Before the enforcement of the GEEA, the cases of discrimination against women in employment were dealt with by labor inspectors, courts, and public prosecutors. However, until 1970s, there was almost no incident where labor inspectors, courts, and public prosecutors dealt with such cases of discrimination against women in employment. Only in January 1983, a civil trial regarding discrimination against women in retirement age was held for the first time in Korea. But the court decisions were unfavorable to women (first trial: June 21, 1983; second trial: February 15, 1985). Furthermore, in a case of compensation for a female worker who had a traffic accident, the court was also unfavorable to the woman on the basis of the premise that Korean women used to marry by 25 years of age and to quit their job after marriage. Women's organizations protested vigorously these court decisions and demanded a legislation to secure gender equality in employment and to prepare a speedier and easier system dealing with disputes on discrimination. 1) In order to solve such problems, the GEEA prepared a system of voluntary conflict resolution between industry and labor. 2) By the GEEA, in case a grievance reported by a worker is not settled autonomously, the local administrative agency can give necessary advice, guidance or recommendation, or have the Employment Equality Committee undertake a mediation. 3) Furthermore, the GEEA provided the establishment of the Employment Equality Committee in order to resolve conflicts by means of mediation. 4) And in the conflict settlement process, the GEEA imposed the burden of proof on the employer so that it would be easier for the worker to raise the issue. 5) However, the labor committee, courts (civil, administrative, criminal), prosecutor's office, and the Constitution Court proceeded to deal with the cases of discrimination against women in employment.
B. Problems and Tasks 1) Since it is up to the discretion of the business owner whether to establish and manage the grievance settlement organ, the effectiveness of the autonomous settlement of the dispute system is in question. Therefore, the most practical and effective measures to prevent gender discrimination would be for industry and labor to exchange mutual opinions regarding women's labor issues including gender discrimination and to prepare the channel of communication to develop a consensus. And through this channel of communication, labor and industry should cooperate to voluntarily monitor the implementation of the GEEA and to make efforts to improve the illegal practices. 2) The meaning and merits of the investigation and problem-solving by an administrative agency is that the process is simple as compared to a judical agency and also that it is possible to solve the problem in speedy and expert ways. Citizens also have easy access to receive the redemption of their rights. Therefore, the basic requirements of the dispute settlement agencies are credibility, speediness, simplicity, economy, expertise, and accessibility. However, the administrative agency that deals with the women's employment discrimination issue based on the GEEA tends to be limited in its functions and authority, and there is the problem that the agency is not very well utilized yet because women workers are not very aware of it and do not trust the agency that much. Furthermore, the mediation procedure does not start at the direct request by the concerned parties but at the request of the head of the local labor administrative agency. This can be seen as a major reason that contributes to the low degree of utilization of the Employment Equality Committee. 3) The GEEA's standard of deciding gender discrimination is reasonableness. Such a standard of reasonableness was once the universal standard adopted by the many countries up to the 1960s, but it has been criticized as being ambiguous and too much dependent on the subjectivity of the persons who have the authority of deciding gender discrimination. Therefore, the international legislative tendency has been to concretely define the concept of gender discrimination and to apply more strict standards, or to restrict exceptions strictly since the 1970s. But the Korean situation deviates from the trend. Considering this fact, it is necessary to redefine the concept of gender in line with the international legislative trend and to make it concrete and strict so as to practically prevent and regulate gender discrimination. A principle should be set not to allow different treatment of males and females except in the case where the employer proves that the different treatment of genders is necessary due to the nature of the task or the management of the industry, and in the case of maternity protection and the positive measures to redress gender discrimination.
Survey Results of Discrimination Cases Against Women in Employment since the Enforcement of the GEEA
In order to see how the GEEA is utilized, applied, and enforced in the discrimination cases against women in employment, this study surveyed and analyzed the cases that were filed at administrative agencies (local labor offices, labor committees, employment equality committees) and judicial agencies (public prosecutor's office, courts, the Constitution Court) for dispute settlement since the GEEA came into force in April 1, 1988, up to May 1999 for a period of about 11 years.
1. Number of Cases Filed for Dispute Settlement
The survey found that a total of 104 cases of gender discrimination were filed by women employment seekers and working women, labor unions and women's organizations and employers at various administrative agencies and judical agencies for dispute settlement since the enforcement of the GEEA. A total of 129 cases were processed by each dispute settlement agency at each level, after subdividing the labor committees, the civil courts into district courts, high courts, and supreme court, and the administrative courts into high courts and supreme courts. When considering this is the aggregated number for about 11 years, one might say that the dispute settlement agencies were not utilized very much even after the enforcement of the GEEA. However, when comparing this number with the period before the enforcement of the GEEA, one can see clearly that the tendency to solve the cases regarding discrimination against women in employment by dispute settlement agencies since the enforcement of the GEEA has increased.
2. The Patterns and Trends in Discrimination in the Cases Entrusted to Dispute Settlement Agencies
A total of 66 cases were categorized by discrimination patterns. Among them, the most frequent cases were those of discrimination in dismissal (21 cases, 31.8%), followed by discrimination in wages (11 cases, 16.7%), retirement age (9 cases, 13.6%), advertisement and recruitment (8 cases, 12.1%), resignation (7 cases, 10.6%), assignment and transfer (6 cases, 9.4%), promotion (3 cases, 4.5%), and sexual harrassment at work (1 case, 1.5%). Furthermore, when looking at the trends in cases entrusted to dispute settlement agencies by discrimination patterns and by year, the cases of discrimination in wages disappeared after 1996, while those of discrimination in retirement age disappeared after 1994. But, during the economic crisis in 1998, the number of discrimination cases in dismissal increased rapidly up to 10, and though no cases of discrimination in assignment and transfer had been filed after 1992, they occurred again in 1998. Therefore in 1998 and 1999, only cases related to structural rearrangement such as discrimination in dismissal, assignment and transfer, and retirement were filed. It can be said that the damage of structural rearrangement was concentrated only on women.
3. Reasons for Discrimination in the Cases Entrusted to Dispute Settlement Agencies
When looking at the reasons for discrimination in the discrimination cases against women in employment, the discrimination based only on the reason of gender constituted 48.5% or 32 of the total 66 cases. In 28 cases (42.4%) the reasons for discrimination were the marital status of women or the status of women in the family. There were 2 cases each (3.0%) of discrimination against women for the reasons of pregnancy, childbirth, appearance and physical condition, and non-military service. At the stage of advertisement and recruitment, discrimination disputes occurred due to the reasons of gender (3 cases), marriage (including status in the family) (2 cases), appearance (2 cases), and non-military service (1 case). In wage discrimination, 10 out of 11 cases (90.9%) were due to gender. In addition, at the stages of job assignment and resignation, discrimination by the reason of marriage accounted for 100% respectively. In the case of discrimination in dismissal, 13 cases or 61.9% were by the reason of marriage (status in the family). Furthermore, in job promotion and retirement age, discrimination by the reason of gender was 100% respectively.
4. The Degree of Utilization of the Dispute Settlement Agencies
When looking at the degree of utilization of dispute settlement agencies through the cases entrusted to the conflict settlement agencies, among the 104 cases of discrimination against women in employment, local labor offices (46 local labor offices or 6 local labor bureaux) showed the highest degree of utilization with 36 cases (34.6%). Next were 23 cases of courts (22.1%), 18 cases of the central and district labor committees (17.3%), 13 cases each for the Employment Equality Committee and the Prosecutor's Office (12.5%), and one case for the Constitution Court (1.0%).
5. Rate of Admitting Discrimination against Women by the Dispute Settlement Agencies
In 78 (72.5%) of the 109 cases settled by dispute settlement agencies at each level, the accused and/or the agency admitted that women were discriminated against. Especially in the civil district courts, only 3 out of 8 cases settled admitted discrimination against women, showing a very low admission rate of 42.9%. The high courts showed an admission rate of 50.0%. The rate was 62.5% for the Prosecutor's Offices, and in general the judicial agencies trended not to recognize discrimination against women. In contrast, relatively high rates are found in the supreme court of the civil court (100%), criminal court (83.3%), Employment Equality Committee (80.0%), and local labor offices (77.8%).
Tasks as a Law to Guarantee Equal Employment Rights in the 21st century
We are now facing a great turning point in the history of civilization entering into the 21st century. In order to prepare for this new age at the national level, it is necessary to develop the creative human resources that can produce information and knowledge and to create a social environment and national development system where all society's members can actively participate and cooperate. From such a perspective, we will need a social and economic order where the values of human dignity, equality and freedom are all the more emphasized and where competition, efficiency, justice, and equity are kept in balance. It should be emphasized in such a context that institutional measures should be provided for women to participate in the development of the nation, society, and the family equally with men, and that there should be the general public's awareness should be raised on gender equality and the human rights of women. In the future, the social awareness and policy weight for the protection of human rights in our society will be further promoted, and the dispute settlement agencies which will redeem the damages of gender discrimination will be further diversified. Nevertheless, gender discrimination in the field of employment occurs frequently and is a major violation of human rights in relation to equality, work, and survival. Therefore, in order to prevent such discrimination, the purposes and direction of the GEEA should be reviewed and should be revised at least as follows as soon as possible. 1. Prepare a legal system, rights redemption, and administrative supervision system to more effectively guarantee the equal employment rights. 2. The law should carry out the function of transforming the attitudes, customs, and system in the labor market that are rooted in the traditional gender role division perspective. 3. The law should be revised to correspond to the international standards that suggest the basic principles of gender equality and human rights and suggest strategies for their realization, such as the United Nations Convention to Eliminate Discrimination against Women and the World Women's Platform for Action, so that it can function as a law to guarantee the human rights of women in the age of rapidly increasing internationalization. Moreover, as has been shown in the experiences of implementing the GEEA during the past decade, the effective legislation and implementation of the GEEA cannot be accomplished only through external developments such as the improvement of legal provisions or the expansion of administrative and rights redemption agencies. It is absolutely essential to have the concerns and participation of citizens in the application, enforcement, and implementation of the law, especially the cooperation and participation of industry and labor that are the parties directly concerned and the targets for the application of the law, and to promote general awareness raising on gender equality and human rights in society. For this purpose, the following tasks should be realized. 1. In order to form the environment for promoting the effectiveness of the law's implementation, first of all, an education and publicity campaign on the GEEA are required which enable citizens to understand it and to have access to the rights redemption system. 2. The majority of those who have authority to make laws regarding women's labor issues and apply or enforce laws through review and judgment are males, such as congressmen, local assemblymen, civil servants in the 5th rank or above, judges, public prosecutors, lawyers, members of the labor committees, professors of law, and labor inspectors. This fact creates the kind of environment where we cannot expect much active and proper compensation and dispute settlement regarding the violation of women's right to work. And this can also be a major reason why women cannot utilize dispute settlement agencies easily and comfortably. In order to solve this problem, education is required for those in authority as such, and women's participation should be expanded at the policy level in the legislation, application, and enforcement of the laws and in the decision making process. 3. It is essential in securing the effectiveness, efficiency, and adequacy of the implementation of laws and policies that such private organizations as citizens' organizations, and women's organizations continue to monitor and evaluate the implementation of this law and relevant policies and announce the results. This is an important strategy to promote social concern and understanding regarding the GEEA and relevant laws.
References
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E-mail : freep@kwdi.re.kr- Copyright 2001 Korean Women's Development Institute-
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