The amendment of the Equal Employment Opportunity and Work-Family Balance Assistance Act ("Equal Employment Act") introduced the Labor Relations Commission's remedial procedures for gender discrimination in employment and sexual harassment in the workplace.
Under the current Equal Employment Act, there is a provision that penalizes an employer's failure to perform its obligation to take measures in the event of sexual discrimination in employment or sexual harassment in the workplace. However, since there is no procedure in the Act that allows an employee to apply to the Labor Relations Commission for a correction order or other remedy, it has been noted that it is difficult for employees to obtain sufficient relief or remedies after suffering from sexual discrimination and sexual harassment.
Considering the foregoing, the newly amended Equal Employment Act sets forth a procedure that allows a victimized employee to directly seek correction of gender discrimination in employment and sexual harassment in the workplace ("discriminatory treatment, etc.") from the Labor Relations Commission as follows:
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The employee may file a correction request with the Labor Relations Commission within six months from the date the discriminatory treatment, etc. occurred (if there is a pattern of discriminatory treatment, etc., then six months from the date such treatment stops).
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Upon receiving this correction request from an employee, the Labor Relations Commission must conduct the necessary investigation and interrogation of the relevant parties without delay.
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In the course of the Labor Relations Commission’s investigation, mediation procedures may be commenced upon the request of one or both parties, or ex officio. Furthermore, the parties may also agree to have the Labor Relations Commission arbitrate the matter.
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If discriminatory treatment, etc. is recognized as a result of the investigation by the Labor Relations Commission, the Labor Relations Commission may impose corrective measures on the employer such as ordering (i) the suspension of discriminatory treatment, etc., (ii) the improvement of working conditions, such as wages, (including an order to improve systems, such as the rules of employment.
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In particular, an order to pay compensation must be determined based on the amount of damages suffered by the employee, in principle; provided, however, that if the employer is found to have acted intentionally in carrying out its discriminatory treatment, etc. or if discriminatory treatment, etc. is repeated, a compensation order of up to three times the amount of actual damages may be issued.
In resolving disputes related to discriminatory treatment, etc., the focus is on the following matters: (i) the burden of proof lies with the employer; and (ii) if a corrective order is finalized, the Ministry of Employment and Labor may investigate whether there has been discriminatory treatment against other employees who are not subject to the corrective order and, if such discriminatory treatment is found, it will issue a request for correction. Considering the foregoing, it is highly likely that requests for correction of discriminatory treatment, etc. from the Labor Relations Commission will increase after May 19, 2022, the effective date of the amended Equal Employment Act. We recommend that each business place review their work processes before this effective date to prevent discriminatory treatment, etc. and familiarize themselves with the amendments to the Equal Employment Act so they may take appropriate measures in the event of any future disputes.
