[1] In a case where an employer dismissed or took any other unfavorable measure against a “worker who has suffered damage in connection with sexual harassment on the job”, whether a tort under Article 750 of the Civil Act is constituted (affirmative in principle) and the standard for determining whether an employer’s measure against a victimized worker is unlawful as an unfavorable measure against the victimized worker, etc. / The burden of proving that the unfavorable measure against the victimized worker is not related to sexual harassment or has a justifiable reason (=the employer)

[2] In a case where an employer helps an employee who was victimized by sexual harassment in the workplace or who claimed sexual harassment damages to an employee who was employed by the employer, thereby taking unfavorable measures against the victimized employee, etc., whether the victimized employee, etc. may be held liable for tort pursuant to Article 750 of the Civil Act (affirmative) / Whether the victimized employee, etc. may be held liable for damages only where the employer knew or could have known the victimized employee, etc.’s damages (affirmative), and the standard for determining the possibility of occurrence thereof

[3] Where an investigation is conducted on a sexual harassment case in the workplace, whether the investigating participant is obligated to keep confidential information (affirmative), and whether the employer should have the investigating participant comply with the above obligation (affirmative)

[1] The Equal Employment Opportunity and Work-Family Balance Assistance Act (amended by Act No. 15109, Nov. 28, 2017; hereinafter “Equal Employment Act”) clarifys that sexual harassment in the workplace is an act legally prohibited, and imposes an employer a duty of prior preventive measures and a duty of follow-up measures with regard to sexual harassment in the workplace. In particular, the employer shall not take unfavorable measures against not only the victimized employee but also the employee who asserts sexual harassment in the workplace, and the offender shall be subject to criminal punishment.

In the event of sexual harassment on the job, the employer is still taking disadvantageous measures or treating the victim even though the employer is obligated to actively protect the victim and relieve the victim from the damage. Such actions may not only lead to side effects with which the victim is faced with damage and covered with the problem, but also cause another mental suffering more than that of having suffered sexual harassment on the job. The above provision aims not only to promptly and appropriately remedy the damage of sexual harassment on the job but also to prevent sexual harassment on the job. The function of the provision is to trust the employer to take appropriate measures, such as taking disciplinary action against the perpetrator, rather than having secondary concerns about the occurrence of sexual harassment on the job.

In a case where an employer dismissed or took any other unfavorable measure against an employee who was victimized by sexual harassment or who claimed sexual harassment in the workplace (hereinafter referred to as “victim employee, etc.”), the employer is in violation of Article 14(2) of the Equal Employment Opportunity Act and constitutes tort under Article 750 of the Civil Act. However, if the employer’s measure against the victimized employee, etc. is irrelevant to the injury of sexual harassment in the workplace or the institution of the issue related thereto, it does not constitute a violation of Article 14(2) of the same Act. Moreover, even if the employer’s measure is not related to the occurrence of sexual harassment in the workplace, it does not constitute

Whether an employer’s measure is an unfavorable measure against a victimized employee, etc. should be determined by comprehensively taking into account the following: (a) whether the unfavorable measure was taken at a time close to the filing of a matter of sexual harassment in the workplace; (b) details and process of the disadvantageous measure; (c) whether the employer had existed before the filing of the matter of the victimized employee, etc.; (d) degree of infringement of other’s rights or interests arising from the act of victimized employee, etc.; (e) degree of disadvantage suffered by the victimized employee, etc. due to the disadvantageous measure; (e) whether the unfavorable measure is taken on an exceptional or discriminatory basis in comparison with previous

The Equal Employment Opportunity Act provides that an employer bears the burden of proof in a dispute resolution (Article 30). This also applies to disputes concerning sexual harassment in the workplace. Therefore, in a case where a dispute arises due to sexual harassment in the workplace, the employer must prove that disadvantageous measures against victimized workers, etc. are not related to sexual harassment or have justifiable grounds.

[2] Article 14(2) of the Equal Employment Opportunity and Work-Family Balance Assistance Act (amended by Act No. 15109, Nov. 28, 2017; hereinafter “Equal Employment Opportunity Act”) provides that an employer shall not dismiss or take any other unfavorable measure against a worker who suffered damage in connection with sexual harassment in the workplace or a worker who claims damage from sexual harassment in the workplace (hereinafter “victim employee, etc.”). Therefore, it is difficult to deem that an employer directly violated Article 14(2) of the Equal Employment Opportunity Act in cases where the employer took a disadvantageous measure against a worker, other than a victimized employee, etc. who aided him/her.

However, in a case where the employer took unfavorable measures against the victimized workers, etc. near the victimized workers, if the contents of such measures were to be unfair and thereby, the victimized workers, etc. suffered emotional distress, the employer may be held liable for tort in accordance with Article 750 of the Civil Act even if the victimized workers, etc. are not the direct counterpart to the unfavorable measures.

An employer has the duty to respect and protect the personality of workers by implementing prompt and appropriate measures to improve the working environment in accordance with the Equal Employment Act and the Equal Employment Act at the time of sexual harassment in the workplace, and by creating a proper working environment to prevent victimized workers, etc. from suffering any subsequent damage. Nevertheless, if the employer took unfair disciplinary action against the same worker who assisted victimized workers, etc., then the employer may be deemed to have violated the duty to protect victimized workers,

Meanwhile, in a case where a disciplinary action against a victimized employee, etc. was taken against a victimized employee, etc. who assisted the victimized employee, such damage constitutes damages due to special circumstances. Therefore, an employer shall be held liable for damages only when he/she knew or could have known such damage pursuant to Articles 763 and 393 of the Civil Act. In such a case, whether predictability exists shall be determined by taking into account the following: (a) the details and motive of the disciplinary action against a victimized employee, etc. against a victimized employee; (b) the developments and motive behind the disciplinary action against a victimized employee; and (c) the distance between the time when the victimized employee and the time when the victimized employee, etc. took relief of sexual harassment; and (d) the disadvantage anticipated that the victimized employee, etc. would have suffered from the victimized employee’s act. In particular, if an employer takes a discriminatory disciplinary action against a victimized employee, etc. immediately after he/she becomes aware of who assisted the victimized employee, etc.’s exercise of rights

[3] Although there is no express provision in the current Equal Employment Opportunity and Work-Family Balance Assistance Act (amended by Act No. 15109, Nov. 28, 2017; hereinafter “Equal Employment Act”), the main text of Article 14(7) of the amended Equal Employment Opportunity Act explicitly states the duty not to divulge confidential information that a person who investigated the occurrence of sexual harassment in the workplace, a person who received a report on the content of the investigation, or any other person who participated in the investigation process (hereinafter “investigation participant”) shall not divulge confidential information known to him/her in the course of the investigation against another person against his/her will, or a worker who claims sexual harassment in the workplace (hereinafter “victim employee, etc.”).

Before the enforcement of the above amended Act, in light of Articles 10 and 17 of the Constitution that guarantees an individual’s personal right, privacy, and freedom, the legislative purport of the Equal Employment Act that intends to prevent sexual harassment in the workplace and protect victimized workers, and the characteristics of sexual harassment in the workplace, etc., where an investigation is conducted with respect to sexual harassment in the workplace, the investigating participant shall not strictly keep confidentiality and maintain fairness, barring any special circumstances. The investigation participant’s disclosure of confidential information known to him/her in the course of investigating sexual harassment in the workplace or of speech and behavior that may infringe on the social value or evaluation of the perpetrator and the victim should be deemed unlawful. Such speech and behavior may cause additional secondary damages to the victimized workers, etc., and ultimately, the employer shall have the investigating participant comply with the above duty.

Meanwhile, “in relation to the performance of an employee’s business”, which is the requirement for an employer’s liability under Article 756 of the Civil Act, is deemed to be objectively related to the employee’s business activity, performance of duties, or performance of duties, without considering the offender’s subjective circumstances. In a case where an employee intentionally committed a harmful act, such as sexual harassment, against another person, even if the act was not itself committed, if the act was conducted in the course of performing all or part of the employee’s duties in close vicinity to the employer’s business time and place, or if the motive of the harmful act is related to his/her duties, the act is deemed to be related to the employee’s performance of duties in an external and objective manner. In such a case, whether the employer took measures to prevent the occurrence of danger may be additionally considered for the fair

[1] Articles 2 subparag. 2, 12, 13(1), 14, 30, and 37(2)2 of the Equal Employment Opportunity and Work-Family Balance Assistance Act (Amended by Act No. 15109, Nov. 28, 2017); Article 750 of the Civil Act; Article 288 of the Civil Procedure Act / [2] Article 14 of the Equal Employment Opportunity and Work-Family Balance Assistance Act (Amended by Act No. 15109, Nov. 28, 2017); Articles 393, 750, and 763 of the Civil Act / [3] Articles 10 and 17 of the Constitution of the Republic of Korea; Article 10 of the Equal Employment Opportunity and Work-Family Balance Assistance Act (Amended by Act No. 15109, Nov. 28, 2017); Article 156 of the Civil Act

[3] Supreme Court Decision 2009Da44457, 44464 Decided October 15, 2009

Plaintiff (Law Firm Han, Attorneys Lee Jong-hee et al., Counsel for the plaintiff-appellant)

Rano Motor Vehicle Co., Ltd. (Law Firm A&S, Attorneys Jeong-hee et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na2003264 decided December 18, 2015

Of the part of the lower judgment against the Plaintiff, the part regarding the claim for damages against the Plaintiff regarding the reprimand disposition dated September 4, 2013, the suspension of duties and standby order as of December 11, 2013, and the suspension of duties as of July 19, 2013 against Nonparty 1 is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief submitted after the deadline for submitting them).

1. The progress and major issues of the instant case

A. On June 11, 2013, the Plaintiff, an employee of the Defendant, filed the instant lawsuit against the Defendant and the co-defendant 2 of the first instance trial against the Defendant on the ground of sexual harassment in the workplace. The grounds for the instant lawsuit against Nonparty 2 are that Nonparty 2, as the Plaintiff’s superior and the head of the team to which he belongs, committed sexual harassment against the Plaintiff. The grounds for the Defendant’s claim against the Defendant are that the Defendant is liable to the Defendant as to the defamation statements, etc. made while investigating the instant sexual harassment in the course of Nonparty 2’s aforementioned sexual harassment and Nonparty 3, the employee

After that, the Plaintiff added a claim for damages against the Defendant on the grounds that (i) the suspension order against Nonparty 1 who assisted the Plaintiff on July 19, 2013 against the Plaintiff; (ii) the reprimand against the Plaintiff on September 4, 2013; (iii) the notification of the assignment of work to the Plaintiff on October 17, 2013 against the Plaintiff; and (iv) the suspension of duties and the standby order, etc. on December 11, 2013 against the Plaintiff constituted “unfair measures” prohibited under Article 14(2) of the Equal Employment Opportunity and Work-Family Balance Assistance Act (hereinafter “Equal Employment Opportunity Act”).

B. The first instance court partially accepted the Plaintiff’s claim against Nonparty 2, and dismissed both the Defendant’s claim and the remainder of the claim against Nonparty 2. Of the first instance judgment, the Plaintiff appealed only to the part of the claim against the Defendant, and the part against Nonparty 2 became final and conclusive.

C. The lower court partly accepted the Plaintiff’s claim against the Defendant as follows.

(1) The Defendant’s employer’s responsibility is recognized with respect to Nonparty 2’s sexual harassment. However, the Defendant’s conjunctive defense that “the Defendant, according to the employer’s responsibility, provided that all of the Defendant’s damages for delay and KRW 7 million were extinguished by Nonparty 2’s repayment after the judgment of the first instance court.” As such, the Defendant’s conjunctive defense of payment is with merit, and the Plaintiff’s claim for the Defendant’s employer’s liability regarding Nonparty 2’

On the other hand, the defendant's employer liability is recognized in relation to the statement of the non-party 3 who has been in charge of investigation related to sexual harassment.

(2) Among the four claims added as seen in the above A, only a claim against the Plaintiff on October 17, 2013 relating to “(3) notification of the assignment of work as of October 17, 2013,” and there is no claim related to “(1) the suspension of work as of July 19, 2013 against Nonparty 1, (2) the reprimand against the Plaintiff as of September 4, 2013, and (4) the suspension of work as of December 11, 2013 against the Plaintiff and the suspension of standby order, etc. against the Plaintiff.”

D. The plaintiff appealed against the above ①, ②, and ④ claims rejected by the court below, and the defendant appealed against the defendant.

E. Ultimately, the issues of the instant case are as follows: (a) whether the Defendant’s liability is recognized with respect to Nonparty 1’s suspension from office as of July 19, 2013 against the Plaintiff; (b) reprimand as of September 4, 2013 against the Plaintiff; and (c) suspension from office and standby order as of December 11, 2013; (b) whether the Defendant’s liability is recognized with respect to Nonparty 3’s remarks in charge of investigation related to sexual harassment; and (c) whether the Defendant’s liability is recognized with respect to the Plaintiff’s remarks.

2. Liability for tort due to unfavorable measures against a victim of sexual harassment on the job

A. The Equal Employment Opportunity Act provides for “sexual harassment in the workplace” as follows (amended by November 28, 2017 is expected to enter into force on May 29, 2018, and more detailed provisions regarding sexual harassment in the workplace than the current law.)

The term “sexual harassment on the job” means that an employer, a superior, or a worker causes sexual humiliation or aversion to another worker by using a position within the workplace or by sexual words or actions related to his/her duties, etc., or gives disadvantages in employment on the ground that he/she did not comply with a sexual speech or actions or any other demand (Article 2 Subparag. 2). An employer, a superior, or a worker shall not engage in sexual harassment on the job (Article 12). An employer shall provide education to prevent sexual harassment on the job in order to prevent sexual harassment on the job and to create a given condition where a worker can work in a safe working environment (Article 13(1)). An employer shall, without delay, take a disciplinary measure or other measures corresponding thereto against a perpetrator (Article 14(1)). In cases where the occurrence of sexual harassment on the job is verified, the employer shall not dismiss or take any other unfavorable measure against a worker who has suffered sexual harassment on the job, or a worker who has claimed damage from sexual harassment on the job (Article 14(2)2)30 or 4(2).

B. The Equal Employment Opportunity Act clearly specifies that sexual harassment in the workplace is an act legally prohibited, and imposes an employer the duty of prevention of sexual harassment in the workplace and the duty of follow-up measures on the employer. In particular, the employer shall not take unfavorable measures against not only the victimized employee, but also the employee who asserts sexual harassment in the workplace, and has an explicit provision that the offender shall be subject to criminal punishment.

In the event of sexual harassment on the job, the employer is still taking disadvantageous measures or treating the victim even though the employer is obligated to actively protect the victim and relieve the damage. Such actions may not only lead to side effects that the victim gets rid of the damage and cover the problem, but also cause another mental suffering that the victim has suffered more than that of having suffered sexual harassment on the job. The above provision aims not only to promptly and appropriately remedy sexual harassment on the job but also to prevent sexual harassment on the job. In order to prevent sexual harassment on the job when the victim raises an issue of sexual harassment on the job, it functions to trust the employer to take appropriate measures, such as taking disciplinary action against the perpetrator.

Where an employer dismisses or takes any other unfavorable measure against a victimized employee, etc., the employer’s violation of Article 14(2) of the Equal Employment Opportunity Act, thereby constituting tort under Article 750 of the Civil Act. However, if the employer’s measure against victimized employee, etc. is irrelevant to the injury of sexual harassment in the workplace or the filing of a matter related thereto, it does not violate Article 14(2) of the same Act. In addition, even if the employer’s measure is a justifiable cause separate from sexual harassment in the workplace, it shall not

Whether an employer’s measure is an unfavorable measure against a victimized employee, etc. should be determined by comprehensively taking into account the following: (a) whether the unfavorable measure was taken at a time close to the filing of a matter of sexual harassment in the workplace; (b) details and process of the disadvantageous measure; (c) whether the employer had existed before the filing of the matter of the victimized employee, etc.; (d) degree of infringement of other’s rights or interests arising from the act of victimized employee, etc.; (e) degree of disadvantage suffered by the victimized employee, etc. due to the disadvantageous measure; (e) whether the unfavorable measure is taken on an exceptional or discriminatory basis in comparison with previous

The Equal Employment Opportunity Act provides that an employer bears the burden of proof in a dispute resolution (Article 30). This also applies to disputes concerning sexual harassment in the workplace. Therefore, in a case where a dispute arises due to sexual harassment in the workplace, the employer must prove that disadvantageous measures against victimized workers, etc. are not related to sexual harassment or have justifiable grounds.

3. Whether a reprimand disposition against the Plaintiff on September 4, 2013 constitutes an unfavorable measure under the Equal Employment Opportunity Act (Plaintiff’s ground of appeal No. 1)

A. On September 4, 2013, the lower court determined that Defendant 4’s head of Defendant ○○○ Headquarters’s reprimanding the Plaintiff, which was a kind of disciplinary action (hereinafter “instant reprimanding disposition”), did not constitute a disadvantageous measure under Article 14(2) of the Equal Employment Opportunity Act. For that reason, the instant reprimand disposition does not relate to the Plaintiff’s filing of a problem with respect to sexual harassment in the workplace of this case, but did not relate to the Plaintiff’s filing of a written statement from Nonparty 5, in the course of receiving the written statement from Nonparty 5, “If the Plaintiff did not promptly go against the family register, it would be the Defendant’s head. If Nonparty 5’s refusal to go against the written statement from Nonparty 5, thereby impairing the Plaintiff’s reputation, it would be the actual reason.”

B. However, examining the reasoning of the lower judgment and the evidence duly admitted, the instant reprimand disposition may be deemed related to sexual harassment on the job, and it is difficult to view that it is irrelevant to, or based on, sexual harassment damage or related issues. The reasons are as follows.

(1) On June 11, 2013, the Plaintiff filed the instant lawsuit against Nonparty 2, who is a sexual harassment perpetrator, and the Defendant who is his employer, and subsequently, during the process of securing evidence of the instant case’s sexual harassment in the workplace, the Plaintiff committed the instant act against Nonparty 5.

(2) Nonparty 5, by itself, prepared the above statement to the Plaintiff, and did not raise any objection to it.

(3) On December 4, 2013, the Gyeonggi Regional Labor Relations Commission accepted the Plaintiff’s request for remedy against the instant reprimand disposition. The National Labor Relations Commission dismissed the Defendant’s request for review. For that reason, the National Labor Relations Commission stated that “the act based on the instant reprimand disposition does not constitute a tort causing criminal prosecution, and does not constitute a necessity of disciplinary action in light of social norms, and thus, it is not reasonable for the Defendant to take the instant reprimand disposition.” The Defendant accepted the said reexamination decision, and revoked the instant reprimand disposition and deleted all the details of the disposition in the personnel records, etc. on March 27, 2014.

(4) The Defendant did not find any similar disciplinary action on grounds of a disciplinary cause similar to the instant reprimand disposition. Rather, it appears that the instant reprimand disposition was rendered by applying strict and complicated criteria to only the Plaintiff.

(5) On October 17, 2013, after the instant reprimand disposition and its announcement, the Defendant issued a notice of job assignment to exclude the Plaintiff and to take charge of non-professionals engaged in common tasks. On December 11, 2013, the Defendant filed a complaint against the Plaintiff on the ground of suspicion of larceny aiding and abetting, etc., and filed a complaint against the Plaintiff, on the ground that the Plaintiff was suspended from office and standby order, and the Plaintiff terminated the said standby order after the said reexamination ruling and ordered the Plaintiff to return to work.

C. Nevertheless, the lower court determined that the instant reprimand disposition did not constitute an unfavorable measure under Article 14(2) of the Equal Employment Opportunity Act. In so determining, the lower court erred by misapprehending the legal doctrine on the foregoing provision, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is correct

4. Whether suspension of duties and standby issuance against the Plaintiff on December 11, 2013 constitutes an unfavorable measure under the Equal Employment Opportunity Act (Plaintiff’s ground of appeal No. 2)

A. On December 11, 2013, the lower court determined that: (a) Nonparty 6, the head of the Defendant’s personnel management team, issued a suspension of duties and a standby order (hereinafter collectively referred to as “instant standby order, etc.”) against the Plaintiff on December 11, 2013; and (b) filed a complaint against the Plaintiff for aiding and abetting the theft at around that time does not constitute a disadvantageous measure under Article 14(2) of the Equal Employment Opportunity Act; (c) on December 6, 2013, the lower court determined that “The suspicion of the Plaintiff’s participation in the act of illegally taking out the Defendant’s document from the Defendant’s office in △△ Design Center (hereinafter referred to as “instant suspicion of the instant issue”), which is likely to be assessed as a ground for disciplinary action, such as the act causing criminal prosecution.”

B. In principle, personnel orders, including a standby order, are recognized as the inherent authority of the personnel management authority and considerable discretion to the extent necessary for business (see Supreme Court Decision 2000Du8011, Dec. 26, 2002, etc.). However, in light of the reasoning of the lower judgment and the following facts revealed based on the evidence duly admitted, the charge of the instant issue cannot be deemed as being committed within the scope of the legitimate personnel authority, and there is room to view that the instant standby order, etc. issued by the Defendant against the Plaintiff is a disadvantageous measure under Article 14(2) of the Equal Employment Opportunity Act.

(1) On December 4, 2013, the Gyeonggi Regional Labor Relations Commission received an application for remedy against the Defendant’s suspension from office on July 19, 2013 against Nonparty 1. The Defendant, on December 6, 2013, notified Nonparty 1 of suspension of office and standby order on the ground that “the submission of materials in the procedure for the request for remedy by Nonparty 1 is likely to constitute a cause of disciplinary action.” Nonparty 1 was immediately released from the same day, and the Plaintiff accompanied Nonparty 1 and the Plaintiff. The Plaintiff was accompanied by Nonparty 1 and the Plaintiff. The Plaintiff was dispatched with the Plaintiff and the police officer upon the Plaintiff’s report. Nonparty 1 was obviously Nonparty 1’s documents that were presented as the Defendant’s documents, and Nonparty 5 each other’s documents recognized as the Defendant’s documents (hereinafter “the instant documents”) and Nonparty 1 did not have any economic value as well as the instant documents.

(2) On December 11, 2013, after receiving the instant documents, the Defendant filed a complaint with Nonparty 1 and the Plaintiff on charges of larceny and aiding and abetting the instant documents. On June 30, 2014, Nonparty 1 received a disposition of suspension of indictment from a prosecutor on the ground that the act of removing the instant documents constitutes larceny, but the act of removing the documents did not constitute larceny, and that the documents were returned. However, on February 26, 2015, the Constitutional Court revoked the disposition of suspension of indictment on the grounds that it was difficult for Nonparty 1 to view that the Defendant had an intention to intentionally or unlawfully obtain the said documents.

In addition, the Plaintiff was subject to the disposition of “no suspicion” as to larceny on the ground that it is difficult to view that Nonparty 1 was aware of Nonparty 1’s act of taking out the Defendant documents.

(3) In the event the Defendant had no choice but to issue the instant standby order, etc. to the Plaintiff on the grounds of the instant charge, the Defendant actively submitted relevant CCTV files (hereinafter “the instant video files”) at the time of Nonparty 1 and the Plaintiff’s retirement. However, the Defendant refused to submit the instant video files, and the Plaintiff filed an application for submission of the instant video files with the first instance court.

(4) On March 17, 2014, the National Labor Relations Commission dismissed the Defendant’s application for reexamination related to the instant reprimand, and on March 27, 2014, the Defendant revoked the instant reprimand disposition by respecting the decision to dismiss the Plaintiff’s application for reexamination, even before the closure of the instant complaint on the Plaintiff’s charge of aiding and abetting thief. In addition, the Defendant voluntarily disclosed the need for protection of and remedy against sexual harassment victims, etc., and ordered the Plaintiff to terminate the instant standby order, etc. and return to their original position.

(5) In the previous case of the same degree as the instant case’s suspicion, the Defendant did not find out the case where the Defendant issued a suspension order and standby order to the employee on the sole basis of such doubt.

C. As above, there is no circumstance to deem that the grounds for the charge of this case’s key issue are very rare and that the provision of the Plaintiff’s labor is very inappropriate in the current situation. Therefore, it is difficult to recognize the necessity of the instant standby order against the Plaintiff.

Nevertheless, the lower court determined that the Defendant’s instant standby order against the Plaintiff did not constitute a disadvantageous measure under Article 14(2) of the Equal Employment Opportunity Act. In so determining, the lower court erred by misapprehending the legal doctrine on the foregoing provision, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is

5. tort liability due to unfavorable measures against a third party who assisted sexual harassment victims, etc. (Plaintiff’s ground of appeal No. 3)

A. Article 14(2) of the Equal Employment Opportunity Act merely stipulates that an employer shall not dismiss or take any other unfavorable measure against a victimized employee. Therefore, in a case where an employer took a disadvantageous measure against a victimized employee, not a victimized employee, etc., but a paid-in employee who assisted him/her, it is difficult to deem that the employer directly violated Article 14(2) of the Equal Employment Opportunity Act.

However, in a case where the employer took unfavorable measures against the victimized workers, etc. near the victimized workers, if the contents of such measures were to be unfair and thereby caused mental pain to the victimized workers, etc., the employer may be held liable for tort in accordance with Article 750 of the Civil Act even if the victimized workers, etc. are not the direct counterpart to the unfavorable measures. The specific reasons are as follows.

(1) Article 750 of the Civil Act provides that “Any person who causes damage to another person due to an intentional or negligent act shall be liable to compensate for such damage.” This provision does not limit the claimant to the direct counter-party to the harmful act. Therefore, if a third party, who is not the direct counter-party to the harmful act, suffers damage due to the harmful act, such as the infringement of his/her legal interest, it shall be deemed that the perpetrator may claim damages on the ground of the tort.

Article 752 of the Civil Act provides for the claimant for consolation money in the event of infringement of life, which is an exemplary provision (see Supreme Court Decision 98Da41377, Apr. 23, 199, etc.). Therefore, regarding a type of illegal act, other than infringement of life, a third party, who is not the other party, may claim compensation against the perpetrator by proving the infringement of his/her legal interest or mental suffering arising from the illegal act, is consistent with the language and structure of Articles 750 and 752 of the Civil Act.

Article 763 and Article 393 of the Civil Act, which provides limited compensation for damages, shall apply to the scope of damages. In general, in a case where a third party is closely related to the other party of a harmful act, and the perpetrator knew or could have known the fact that the damage would occur to a third party due to his/her own act, the perpetrator shall be deemed liable for damages (see, e.g., Supreme Court Decisions 94Da5472, Jan. 26, 1996; 2007Da7777, Sept. 11, 2008). In a specific case, the recognition of liability should be comprehensively taken into account the content and friendlyness of the social or legal relationship between the other party to the harmful act and the third party; the process and degree of the infringement; the content and degree of infringement of the legal interests of the third party caused by the harmful act; and the time and place of infringement between the third party and the harmful act and the third party; and

(2) If an victimized employee, etc. is actively given discriminatory treatment to a worker assisted by an employer, such as an employer’s advice in connection with the procedure for remedy or the exercise of the right, or if the victimized employee, etc. is subject to unfair disciplinary action, etc., the victimized employee, etc. may also have suffered infringement of personal interests or mental suffering. In light of the unique characteristics of sexual harassment in the workplace in our society, the victimized employee, etc. may have a close relationship with the victimized employee, etc., with a deep emotional ties. The victimized employee, etc. may be deemed to have been subject to disadvantageous measures on his/her own account, and other employees may also be able to avoid the injury employee, etc. from having any similar thought, and thus, have the victimized employee, etc. assist the victimized employee, etc. or having an friendly relationship with the victimized employee. If such situation is aggravated, the victimized employee, etc. may have a relation with the same workplace, and thus, become virtually isolated within the workplace. In addition, the victimized employee, etc. may not be held liable for damages against the victimized employee, etc. by taking account of such unfavorable measures against the employer.

As can be seen, the issue is whether an employer violates the duty to protect victimized workers, etc. in accordance with the Equal Employment Act and subordinate statutes. In the event of sexual harassment in the workplace, an employer has a duty to promptly and appropriately improve the working environment and to respect and protect the personality of victimized workers by creating adequate working conditions so that victimized workers, etc. do not suffer any subsequent damage. Nevertheless, if an employer took unfair disciplinary action against victimized workers, etc. against victimized workers, barring any special circumstance, barring any special circumstance, the employer may be deemed to have violated the duty to protect victimized workers, etc.

(3) Meanwhile, in cases where a disciplinary action, etc. against a victimized employee caused damage to a victimized employee, etc. due to a disciplinary action, etc. against a victimized employee, such damage constitutes damage due to special circumstances. Therefore, an employer should be held liable for damages only when he/she knew or could have known such damage pursuant to Articles 763 and 393 of the Civil Act. In such a case, whether predictability exists shall be determined by taking into account the following: (a) details and motive of the disciplinary action, etc. against a victimized employee; (b) the time when the victimized employee, etc. committed an act to seek relief from sexual harassment or right; and (c) the distance between the time when the victimized employee, etc. took the disciplinary action, etc.; and (d) the disadvantage anticipated that the victimized employee, etc.’s act would result in the victimized employee’s act. In particular, if an employer takes a discriminatory disciplinary action, etc. against a victimized employee immediately after he/she becomes aware of who assisted the victimized employee, etc.

B. The lower court determined that even if a third party, other than the victimized workers, etc., helps the victimized workers, etc. himself/herself, it cannot be subject to disadvantageous measures under Article 14(2) of the Equal Employment Opportunity Act. Furthermore, the Plaintiff’s assertion that Nonparty 7, the head of the △△ Design Asian Center, who was the Defendant’s head of the △△△ Design Asian Center, constitutes a disadvantageous measure under Article 14(2) of the Equal Employment Opportunity Act, which was the one week of suspension from office against Nonparty 1 (hereinafter “the suspension from office against Nonparty 1”), constituted a disadvantageous measure against Nonparty 1 on July 19, 2013, dismissed the Plaintiff’s claim on the ground that the lower

C. The lower court’s determination that Nonparty 1, who is not the victimized employee, cannot become the counter-party to the unfavorable measure under Article 14(2) of the Equal Employment Opportunity Act is acceptable as it is in accordance with the aforementioned legal doctrine. However, it is difficult to accept the Plaintiff’s claim for damages on the ground of the suspension from office against Nonparty 1.

(1) According to the record, the Plaintiff asserted the following facts in the briefs submitted to the lower court on July 8, 2015, and stated the said briefs on the date of pleading.

The Defendant’s series of disadvantageous measures against Nonparty 1, as a whole, shows to other workers that “the person who aided and abetted the Plaintiff,” thereby leaving the Plaintiff in the company, not only isolated the Plaintiff, but also prevented the Plaintiff from receiving necessary and appropriate assistance in the process of remedying sexual harassment in his/her workplace, and thereby making the Plaintiff’s own right in good faith, may be evaluated as disadvantageous measures against the Plaintiff. This is not only a malicious form of “unfavorable measures” prohibited under Article 14(2) of the Equal Employment Opportunity Act, but also an employer’s violation of the duty to protect the Plaintiff, who is an employee.”

This assertion is understood as an unlawful act that the Defendant’s disposition of suspension from office against Nonparty 1 is liable for tort against the Plaintiff, but the lower court did not render a judgment on such an act.

(2) Examining the reasoning of the lower judgment and the evidence duly admitted, the Defendant, immediately after receiving the instant complaint and becoming aware of the fact that Nonparty 1, an employee of the Plaintiff’s club, assisted the Plaintiff in connection with the submission of evidence, etc., was subject to discriminatory and unfair disciplinary measures against only Nonparty 1. Furthermore, such measures are in violation of the Plaintiff’s personal interest or the duty to protect the Plaintiff, and thus, constitute tort against the Plaintiff, and the Defendant knew or could have known the Plaintiff’s losses. The reasons are as follows.

(A) On June 11, 2013, at the time of the filing of the instant lawsuit, the Plaintiff attached the evidence Nos. 5 [A] to the complaint. At the time, the Plaintiff revealed that “The evidence No. 5 stated that the Plaintiff’s name of the other party to the conversation (excluding Nonparty 1) was removed and indicated as “A”, and that only the name of the other party to the conversation (including Nonparty 1’s English name omitted) was made anonymous for the sake of protecting “A” in the content of the Mesenger’s conversation with the Defendant’s employee (a) with respect to the false novel that was distributed in the company, or for the protection of “A” in the Defendant’s office. However, the part on the screen of the Mesenger’s name (excluding Nonparty 1) was deleted.

(B) On June 17, 2013, the Defendant received the above evidence No. 5 along with the instant complaint.

(C) From July 3, 2013, the Defendant investigated the entry records for a long period of time for only Nonparty 1, and notified Nonparty 1 of his/her attendance at the Disciplinary Committee on July 10, 2013. On July 12, 2013, the Defendant held a Disciplinary Committee on July 12, 2013 and notified Nonparty 1 of his/her suspension from office on the ground that the number of days during which Nonparty 1 was not in compliance with eight hours of working period from January 14, 2013 to June 26, 2013 (one hundred-five days of working day) is total 48 days, and notified Nonparty 1 of his/her suspension from office on July 19, 2013.

(D) On December 4, 2013, the Gyeonggi Regional Labor Relations Commission recognized that the suspension order against Nonparty 1 was an unfair disciplinary measure. On March 7, 2014, the National Labor Relations Commission dismissed the Defendant’s application for reexamination. On February 11, 2015, the Daejeon District Court dismissed the Defendant’s claim for revocation of the retrial on the ground that the suspension order against Nonparty 1 was unlawful by deeming that the suspension order against Nonparty 1 significantly lacks validity under the generally accepted social norms, thereby deviating from and abusing the scope of the disciplinary discretion. The Defendant appealed against the said judgment, but voluntarily withdrawn the lawsuit on August 17, 2015.

(E) The following grounds are that the suspension disposition against Nonparty 1 is unlawful in the case of cancellation of review. ① The Defendant has no prior notification to the employees including Nonparty 1 that it is possible to operate the fixed-term management system or to verify the entry and absence by using the security card straw, etc. ② The security card straw up is difficult to promptly understand the worker’s commuting time of work, and it was difficult for the worker to take a warning about the working hours. ③ The office with the security card straw up to the △ Asian Design Center to be kept in place, so it is difficult to view that the office was issued to all workers at the same level. ④ The Defendant Company was in a relatively flexible manner for the fixed-term period of time due to Nonparty 1’s failure to take disciplinary action on the part of Nonparty 1’s employees, and the Defendant did not have been given disadvantage to Nonparty 1 due to Nonparty 1’s failure to take disciplinary action on the part of Nonparty 1’s employer.

D. The lower court should specifically examine the details and the subsequent process of the suspension from office against only Nonparty 1 who aided the Plaintiff in relation to the instant lawsuit, the Defendant’s intentional intent or intent, and the Defendant’s predictability as to the disadvantage suffered by the Plaintiff due to the Defendant’s above-mentioned measures, and consider whether the suspension from office against Nonparty 1 constituted tort against the Plaintiff and whether there was damage to the Plaintiff, and determine whether the suspension from office against the Plaintiff 1 constituted tort against the Plaintiff and whether the suspension from office against the Plaintiff incurred damages to the Plaintiff. The lower court should have determined

Nevertheless, without deliberating on such circumstances, the lower court rejected the Plaintiff’s claim as to this part solely on the ground that Nonparty 1 cannot be subject to disadvantageous measures under Article 14(2) of the Equal Employment Opportunity Act. In so doing, the lower court erred by misapprehending the employer’s duty to protect victimized workers, etc. and the legal doctrine on tort under Article 750 of the Civil Act, thereby failing to exhaust all necessary deliberations, and omitting judgment, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s allegation contained in the grounds

6. Defendant’s ground of appeal

A. Whether an employer’s liability related to sexual harassment on the job of Nonparty 2 was established (Defendant’s ground of appeal No. 1)

In the lower judgment, the Plaintiff asserted that, from April 2012 to March 2013, Nonparty 2 (Co-defendants of the first instance court), who is the Plaintiff’s superior, committed an unlawful act of sexual harassment in the workplace against the Plaintiff, and that the Defendant was liable for damages against Nonparty 2’s unlawful act. As to this, the lower court recognized the Defendant’s employer’s liability, but accepted the Defendant’s conjunctive defense that, according to the Defendant’s employer’s liability, the Defendant’s claim was dismissed for this portion of the Plaintiff’s claim. The Plaintiff and the Defendant did not appeal against this part of the lower judgment, and the Defendant appealed only against the part against the Defendant among the lower judgment.

The Defendant’s argument in this part of the Defendant’s ground of appeal is that: (a) the act of sexual harassment against the Plaintiff by Nonparty 2 is not related to the performance of duties; and (b) the Defendant has the grounds for exemption under the proviso of Article 756(1) of the Civil Act. However, among the Plaintiff’s claim in this case, the part on which Nonparty 2 is liable for the Defendant’s employer’s liability against the illegal act by Nonparty

B. Whether notification of work assignment to the Plaintiff on October 17, 2013 constitutes an unfavorable measure under the Equal Employment Opportunity Act (Defendant’s grounds of appeal Nos. 2 and 3)

(1) On October 17, 2013, the lower court determined that: (a) on the part of the director, Nonparty 8, the director of the system engineering malfunction department of the Defendant research institute, notified the Plaintiff of the division of work (hereinafter “instant allocation”); and (b) this constitutes a disadvantageous measure under Article 14(2) of the Equal Employment Opportunity Act, related to raising the Plaintiff’s issue of sexual harassment on the job of the instant case; and (c) such notification constitutes a disadvantageous measure

Examining the aforementioned legal principles and records in light of Article 14(2) of the Equal Employment Opportunity Act, the lower court did not err in its judgment by misapprehending the principle of clarity or the legal doctrine under Article 14(2) of the Equal Employment Opportunity Act, contrary to what is alleged in the grounds of appeal.

(2) Furthermore, the lower court deemed that the Plaintiff’s claim on this part included the Defendant’s liability for employer under Article 756 of the Civil Act in relation to the assignment of Nonparty 8’s business of this case, and recognized the Defendant’s employer liability on this premise.

Examining the record in light of the record, the lower court did not err in its judgment by either violating the principle of pleading or disposition or by exercising the right of explanation, contrary to what is alleged in the grounds of appeal.

C. Whether an employer’s liability is established due to an employee’s violation of the duty to investigate sexual harassment on the job (Defendant’s ground of appeal No. 4)

(1) The Constitution provides that all citizens shall have dignity and value as human beings (Article 10) and shall not be infringed on the secrecy and freedom of privacy (Article 17). The Criminal Act is punishing any act infringing on or divulging a certain individual’s secret to protect the confidentiality and peace of individuals (Articles 316 and 317).

Although there is no express provision in the current Equal Employment Act, the main text of Article 14(7) of the amended Equal Employment Opportunity Act stipulates that a person who investigates the occurrence of sexual harassment in the workplace, a person who has received a report on the contents of the investigation, or any other person who participated in the investigation process (hereinafter referred to as “investigation participant”) shall not divulge confidential information he/she has become aware of in the course of the investigation to any other person against the will of the victimized employee, etc.

Before the enforcement of the above amended Act, in light of the above constitutional provision guaranteeing an individual’s personal right, privacy, and freedom, the legislative purport of the Equal Employment Act to prevent sexual harassment in the workplace and protect victimized workers, and the characteristics of sexual harassment in the workplace, etc., where an investigation is conducted with respect to sexual harassment in the workplace, the investigating participant should strictly keep confidentiality and not lose fairness, barring any special circumstances. It should be deemed unlawful for the investigating participant to divulge confidential information he/she has become aware of in the course of investigating sexual harassment in the workplace or to make a speech or behavior that may infringe on the social value or evaluation of the perpetrator and the victim. Such speech or behavior may cause additional secondary injury to the victimized employee, etc., which eventually leads to the victimized employee, etc. to pay a full attention to reporting sexual harassment in the workplace. As such, an employer should have the investigating participant comply with the above duty.

Meanwhile, “in relation to the performance of an employee’s business”, which is the requirement for an employer’s liability under Article 756 of the Civil Act, is deemed to be objectively related to the employee’s business activity, performance of duties, or performance of duties, without considering the offender’s subjective circumstances. In cases where an employee intentionally committed a harmful act, such as sexual harassment, against another person, even if the act was not itself committed, if the act was conducted in the course of performing all or part of the employee’s business activity in close vicinity to the employer’s business time and place, or if the motive of the harmful act is related to the employee’s business activity, then the employer’s liability is established by deeming that the act was related to the employee’s performance of duties in an external and objective manner. In such cases, whether the employer took measures to prevent occurrence of danger may be additionally considered for the fair burden of damages (see, e.g., Supreme Court Decision 2009Da4457, 44464, Oct. 15,

(2) For the following reasons, the lower court acknowledged the Defendant’s employer’s responsibility for Nonparty 3’s remarks who conducted the investigation of sexual harassment on the job of the instant case.

At the early stage of investigating the instant case, Nonparty 3 made a statement that may infringe on the Plaintiff’s social value or assessment, which is the victim. This is an unlawful act committed by the investigator of the sexual harassment case in the workplace, regardless of whether the content of the statement is a mere expression of opinion or a statement of fact by indirect or indirect means. Therefore, pursuant to Article 756 of the Civil Act, the Defendant is liable to compensate for the emotional distress suffered by the Plaintiff due to Nonparty 3’s tort regarding the performance of the said business.

(3) Examining the details and progress of Nonparty 3’s remarks as indicated in the reasoning of the lower judgment, the lower court’s determination recognizing the relationship between Nonparty 3’s illegal act and performance of duties is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on tort liability or employer liability, contrary to what is alleged in

7. Conclusion

Of the part of the lower judgment against the Plaintiff, the part regarding the claim for damages against the Plaintiff regarding the reprimand disposition dated September 4, 2013, the suspension of duties and standby order as of December 11, 2013, and the suspension of duties as of July 19, 2013 against Nonparty 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)