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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.
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E-mail : freep@kwdi.re.kr-
Copyright 2001 Korean Women's Development Institute-
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