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1.
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Background
An employee (the “Employee”) of a company that does business in the inspection, testing, and certification services industry (the “Company”), claimed that the Company’s decision in 2023 not to recommend her for a promotion constituted unfavorable treatment for having taken childcare leave, amounting to gender discrimination under Article 2(1) of the Equal Employment Opportunity and Work-Family Balance Assistance Act (the “Equal Employment Opportunity Act”). She filed a petition with the Gyeonggi Regional Labor Relations Commission (“RLRC”) seeking corrective measures for the alleged discriminatory treatment, but the Gyeonggi RLRC dismissed her claim.
However, the National Labor Relations Commission (“NLRC”) overturned that decision on appeal. It opined that the Employee’s comparable reference point was a male employee who had not taken childcare leave and concluded that the Employee’s exclusion from the recommendation for a promotion constituted both indirect discrimination based on childcare leave use and direct discrimination based on gender. Finding no legitimate justification for such treatment, the NLRC ordered the Company to provide the Employee with a promotion opportunity in 2023 and to compensate her for any resulting wage difference. This was the first corrective order issued by the Labor Relations Commission following the introduction of Korea’s new proactive remedial system for gender discrimination in employment (e.g., introduced in the amendments to the Equal Employment Act in 2022), drawing significant media attention.
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2.
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Kim & Chang’s Arguments and the Court’s Decision
Our team challenged the NLRC decision in the Administrative Court, emphasizing the following three (3) points:
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(1)
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From a legal perspective, we pointed out that the NLRC misapplied the concept and principles of indirect discrimination and selected an inappropriate comparable reference point.
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(2)
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Using statistical analysis, we demonstrated that no statistically significant disparities were found in the Company’s promotion records based on the use of childcare leave or gender. In particular, our team introduced nine (9) years of the Company’s promotion records, demonstrating that there was no discrimination based on gender or the use of childcare leave. This effectively refuted the opposing party’s claims to the contrary.
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(3)
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Based on the specific facts of this case, we further explained that there were legitimate and objective reasons for not recommending the Employee for a promotion.
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The Administrative Court accepted all of our arguments and held that the Company’s decision did not constitute gender discrimination. Accordingly, it overturned the NLRC’s corrective order.
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3.
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Key Takeaways
This case marks the first instance in which the validity of a corrective order from the Labor Relations Commission was successfully challenged since the proactive remedial system for gender discrimination in employment was introduced. As a result, it sets an important precedent for future employment discrimination disputes. Furthermore, given the lack of clear criteria or precedents in this area, this outcome highlights how proactive legal arguments, in-depth statistical analysis, and the discovery of meaningful facts can lead to the successful reversal of a corrective order.
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[Korean Version]
