HRM EEO (Equal Employment Opportunity)

Equal Employment Opportunity

• Equal employment opportunity (EEO)

  • The right of all people to work and to advance on the basis of merit, ability, and potential

  • Not on the bases of gender, age, disability, race, color, nationality, etc

EEO related Laws (Korea)

• Constitution: Article 32-4

• The labor Standard Act

• Act on Equal Employment And Support For Work-family

• Act on Employment Promotion and Vocational Rehabilitation for Disabled Persons

• Act on the Promtion of Employment for the Elderly

• Act on the Protection, etc. of Fixed-Term and Part-Time

• Trade Union and Labor Relations Adjustment Act

• National Human Rights Commision Act

Constitution: Article 32-4

Special protection shall be accorded to working women, and they shall not be subjected to unjust discrimination in terms of employment, wages, and working conditions.

The Constitution of Korea establishes some basic principles of employment. Article 32 provides that all citizens “have the right to work,” and contemplates legislation providing minimum wages and working conditions “to ensure human dignity.”

Article 32 also forbids gender discrimination in employment and work conditions. minors, and “preferential” work opportunities for At the same time, Article 32 allows for “special protection” for working military personnel and policemen or their family members following injury or death in the line of duty.

The Labor Standard Act

Article 6 (Equal Treatment):

No employer shall discriminate against workers on the basis of gender, or give discriminatory treatment in relation to the working conditions on the basis of nationality, religion or social status.

Labor Standards Act prescribes the minimum work conditions that an employer must provide to its employees, including minimum standards for work hours, overtime pay, vacation and other paid leace, severance, and other allowances and benefits. The LSA applies to every employer that continuously employs 5 or more employees, including foreign employers with 5 or more employees at any office or “workplace” in Korea (certain provisions of the LSA also apply to smaller companies).

Penalty: 5 years of imprisonment or a fine of up to 50 million KRW

Act on Equal Employment And Support For Work-family Reconciliation

(1) The term “discrimination” means that an employer applies different conditions of employment or work to workers, or takes any other disadvantageous measures against them without any reasonable reasons on account of sex, marriage, status within family, pregnancy, or child-birth etc.

Equal Opportunity and Treatment for Men and Women

Article 7 (Recruitment and Hiring) a penalty of 5,000,000 Won or less

(1) An employer shall not discriminate against men or women based on gender in recruitment and hiring.

(2) When recruiting and hiring female workers, an employer shall not present nor demand certain physical conditions such as appearance, height, weight, etc., unmarried status, and other conditions determined by the Ordinance of the Ministry of Labor which are not required to perform a certain job.

Act On Equal Employment And Support For Work-Family Reconciliation

Article 8 (Wages)

(1) An employer shall pay the equal wage for the work of equal value in the same business.

(2) The criteria for the work of equal value shall be the skills, efforts, responsibility and working conditions, etc., required to perform the work. And in setting the criteria, an employer shall listen to opinions of a member representing employees at the Labor-Management Council as prescribed in Article 25.

(3) A separate business established by an employer for the same purpose of wage discrimination shall be considered the same business.

Three years or less imprisonment or a penalty of 30,000,000 Won or less

Article 9 (Money and Goods, etc. other than Wages)

An employer shall not discriminate against men or women in managing welfare programs such as payment of money and goods or loans other than wages in a bid to support workers lives.

A penalty of 5,000,000 Won or less

Act On Equal Employment And Support For Work-family Reconciliation

Ensuring Equal Opportunity and Treatment, etc. for Men and Women in Employment

Article 10 (Training, Deployment and Promotion)

An employer shall not discriminate against men or women in training, posting and promotion.

a penalty of 5,000,000 Won or less

Article 11 (Retirement Age, Retirement and Dismissal)

(1) An employer shall not discriminate against men or women with respect to retirement age, retirement and dismissal.

(2) An employer shall not enter into a labor contract stipulating marriage, pregnancy or child-birth of a woman worker as a cause of retirement.

Five years or less improsment or a penalty of 30,000,000 Won or less

Act On Employment Promotion And Vocational Rehabilitation For Disabled Persons

Article 5 (Obligations of Employers)

(1) Employers shall have the obligation to cooperate with the government in implementing policies on the employment of disabled persons, provide them with employment opportunities by evaluating their abilities fairly and conduct employment management for them in a proper way.

(2) Employers shall not discriminate against any worker in personnel management, such as hiring, promotion, transfer, education and training, etc., merely on the ground that the worker is a disabled person.

(3) Employers shall provide education to improve the awareness of disabled persons in order to create stable working conditions and expand the employment for disabled workers.

Company with 50+ employees should hire 2.7% of their entire labor.

Act on the Promotion of Employment for the Elderly

• No age restriction on compensation, benefits, training, hiring, promotion, dismissal, retirement, transfer

• Fines up to 10 million KRW

Article 4 (Employer’s Obligations)

An employer shall make efforts to eliminate age discrimination in employment, to provide the aged with employment opportunities suitable for their abilities by developing and improving their vocational skills and improving work facilities and work, and to increase the employment of teh aged by extending retirement ages.

Age Discrimination in Employment and Aged Employment Promotion Act

Article 4-4 (Prohibition of Age Discrimination in Recruitment, Employment, etc.)

(1) An employer shall not discriminate against a worker and a person who intends to be a worker on the grounds of age without any reasonable cause in the following areas:

1. Recruitment and employment;

2. Provision of wages, and other money and valuables, and welfare benefits;

3. Education and training;

4. Assignment, transfer or promotion; and

5. Retirement or dismissal

Age Discrimination (US)

• Age Discrimination in Employment Act

  • Prohibits discrimination against employees over 40 years.

  • Exception: When age is a bona fide occipational qualification (BFOQ)

How to address employment discrimination

• File a petition with the National Human Rights Commission

• Request relief from the Regional Labor Relations Commission

• Report the issue to the Ministry of Employment and Labor

• File a civil lawsuit

• Government agencies conduct periodic inspections of companies to identify any violations of discrimination laws.

• First-time violations result in a written warning.

• Repeat offenders may face legal action.

Disparate Treatment vs. Disparate Impact

• When investigating employment discrimination, distinguishing the case as a disparate treatment vs. a disparate impact is important

• The legal approach and burden of proof differ for the two concepts.

• The outcome when proven differs as well.

Disparate treatment = Adverse treatment

• intentional discrimination; treating one class of employees differently from other employees

• Employer intentionally discriminates based on factors like age, gender, race, etc.

• Ex: Limiting recruitment to a specific age group or making discriminatory comments about gender. The employee who filed the case must provide evidence (statements, emails, treatment patterns).

• Legal outcome: Employer must correct the discriminatory behavior if proven.

Possible examples of Disparate Treatment

A) A female employee discovers that she is being paid less than her male counterparts for doing the same job with similar levels of experience and performance.

B) A qualified applicant is not hired because he/she wears religious attire during the interview process, and the employer believes it will not fit the company’s image.

C) A company undergoing restructuring lays off a significant number of older employees while keeping younger ones, even though the older employees have equal or better performance records.

D) An employee with a disability requests reasonable accommodations to perform his/her job effectively. The employer refuses and instead decides to terminate the employee due to his/her disability.

Disparate impact = adverse impact

• Unintentional discrimination involving employment practices that appear to be neutral but adversely affect a protected class of people; when a facially neutral employment practice disproportionately excludes a protected group from employment opportunities (facially neutral means that it lacks obvious discriminatory content yet affects one group to a greater extent than other groups)

• A policy or practice seems neutral but has a disproportionate negative impact on a particular group.

• The employee who reported the discrimination must show the policy unfairly affects the group (requires statistical or data analysis).

• Legal outcome: Employer must adjust or modify the policy if proven.

Possible examples of Disparate Impact

A) An employer requires a high school diploma for job positions that, in practice, do not need such a level of education.

B) A fire department requires all applicants to pass a rigorous physical test, which includes activities that favor individuals with certain body types.

C) A new housing policy requires tenants to have a certain credit score to rent an apartment.

D) A company changes its scheduling policy, requiring employees to work rotating shifts with little notice.

Bona Fide Occupational Qualification (BFOQ)

• Companies are required to provied evidence that the employment practice that led to discrimination was not discriminatory but was job related for the position in question and consistent with business necessity

• Bona Fida Occupational Qualification

  • Permits employer to use religion, age, sex, or national origin as a factor in its employment practices when reasonably necessary to normal operation of that particular business

  • Race can never be BFOC

Where Disparate Treatment or Disparate Impact exists

• Job-relatedness & Business necessity

  • Companies are required to provide evidence that the employment practice that led to discrimination was not discriminatory but was job-related for the position in question and consistent with business necessity

  • The focus is on the validity of stated job qualifications and their relationship to the work performed.

• Employer has option to modify or eliminate procedure that produces employment discrimination.