[1] The meaning of and criteria for determining “sexual speech and behavior, etc.” under Article 2 subparag. 2 of the former Act on Prohibition of and Remedies for Gender Discrimination

[2] The case holding that the behavior of an assistant principal twice to give female teachers the alcohol to the principal at an elementary school's model does not constitute sexual speech and behavior which objectively or generally causes female teachers to feel sexual humiliation or aversion in light of the circumstances and the speaker's intent, etc.

[1] The term “sexual speech and behavior, etc.”, which is a prerequisite for sexual harassment under Article 2 subparag. 2 of the former Act on Prohibition of and Remedies for Gender Discrimination (amended by Act No. 6915 of May 29, 2003), means physical, verbal, and visual acts related to the male or female physical characteristics, or physical characteristics of male or female, which are objectively permitted to cause a general and average person at the same location as the other party to feel sexual humiliation or aversion. In light of the sound common sense and practice of the community, objectively, in light of the social community’s sound common sense and practice, the act should be objectively acknowledged as having the other party feel sexual humiliation or aversion. In order to establish sexual harassment under the above provision, the act does not necessarily have to have the sexual motive or intent. However, in light of the relationship between the parties, place and situation where the act was committed, the other party’s explicit or presumed response to the act, the content and degree of the act, whether the act was one time or for a short time, or whether the other party’s sexual humiliation or aversion was continued.

[2] The case holding that the behavior of an assistant principal twice to give female teachers an alcohol to the principal at an elementary school's model does not constitute sexual speech and behavior which objectively or generally causes female teachers to feel sexual humiliation or aversion in light of the circumstances and the speaker's intent, etc.

[1] Article 2 subparagraph 2 of the former Act on Prohibition of and Remedies for Gender Discrimination (amended by Act No. 6915 of May 29, 2003) (see Article 3 subparagraph 4 of the current Framework Act on Women's Development) / [2] Article 2 subparagraph 2 of the former Act on Prohibition of and Remedies for Gender Discrimination (amended by Act No. 6915 of May 29, 2003) (see Article 3 subparagraph 4 of the current Framework Act on Women's Development)

Plaintiff (Attorney Nam-chul et al., Counsel for plaintiff-appellant)

National Human Rights Commission (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Nu4286 delivered on May 26, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, 3, and 5

Article 2 Subparag. 2 of the former Act on the Prohibition of and Remedies for Gender Discrimination (amended by Act No. 6915, May 29, 2003; hereinafter “the Act”) provides that “sexual harassment means an act that causes sexual humiliation or aversion to workers, employers or workers of public institutions in relation to their duties, employment and other duties, etc., or giving disadvantages in employment on the ground of non-compliance with sexual words and actions or other demands by using their status or with respect to their duties.” Here, “sexual words and actions, etc.” as the premise of sexual harassment, means physical, verbal, and visual acts related to the physical relationship between men and women or women’s physical characteristics, which are objectively and objectively acts that may cause the general and average person at the same place as the other party to feel sexual humiliation or aversion. In order for sexual harassment to be established under the above provision, whether the other party would have objectively feel sexual humiliation or aversion, or whether the other party would have objectively feel sexual humiliation or aversion with the other party’s sexual desire or aversion, or whether the other party’s act was objectively and objectively committed.

The court below acknowledged that the plaintiff, an assistant principal of the third grade school, attended with the non-party 1 and the non-party 2 who is the principal of the school, the principal of the school, and had conversations on learning, such as student guidance, evaluation of basic academic background for the third grade school nationwide elementary school, English guidance, etc. Among the non-party 1's attending the third grade school, the non-party 1 gave to 3 female teachers among the school teachers in the third grade school, and the three male teachers were paid to 30,000 male teachers according to their answers, and that it was difficult to see that the plaintiff's behavior was in violation of social order at the time of the plaintiff's participation in this case's behavior in light of the following circumstances: it was difficult to see that the plaintiff's behavior was in violation of social order in light of the contents of conversation at the above school and the circumstances where the plaintiff made the above speech to 30,000 male teachers, and that it was difficult to see that the plaintiff's behavior was in violation of social order.

In light of the above legal principles and records, since the plaintiff's behavior of this case does not constitute sexual speech and behavior that causes female teachers to feel sexual humiliation or aversion with sexual humiliations on two occasions of giving alcohol to female teachers, the court below' decision that held that the decision of this case as sexual harassment is unlawful is just and there is no error in the violation of the rules of evidence or in the misapprehension of legal principles as to the interpretation of sexual harassment under Article 2 (2) of the Act, contrary to the allegations in the grounds of appeal.

2. As to the fourth ground for appeal

Since a decision of sexual harassment under Article 28 of the Act is a binding act, there is no illegality of deviation or abuse of discretion in the decision of this case on the premise that the decision of sexual harassment is a discretionary act. The ground of appeal on this part is without merit.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)