Amid the widespread attention that sexual harassment/violence in the workplace has received due to international movements such as the “Me Too” movement, the Supreme Court of Korea has recently rendered a significant decision on the need to reform the judicial system’s approach to sexual harassment cases.

In its ruling in 2017DU74702,

the Supreme Court emphasized the need for “gender sensitivity” in judicial

review of sexual harassment cases, stating that courts must base their

decisions on the understanding of societal and cultural factors that affect gender-based

discrimination and the fear that many victims face in sexual harassment cases.

In assessing the credibility of a sexual harassment claim, courts must take

special consideration of the victim’s circumstances and the potential for

additional humiliation that may arise during the judicial process.

In this particular case, the

lower court questioned and ultimately dismissed the credibility of the sexual

harassment claim brought by two female students against their male professor.

The lower court determined that a finding of sexual harassment was inconclusive

because the first victim had given the professor positive marks on an anonymous

evaluation and subsequently continued to attend the professor’s classes after

the alleged sexual harassment incident, while the court found that the second

victim’s testimony was unconvincing and that it was doubtful that the second

victim would have filed a claim at all without the first victim’s request.

It appears that in failing to

incorporate gender sensitivity in its review, the lower court based its

decision on an extremely narrow interpretation of sexual harassment. In

response to the lower court’s decision, the Supreme Court emphasized that

gender sensitivity must be a part of judicial review and that it was a common

occurrence for victims to delay disclosing their trauma due to fear of negative

repercussions, such as losing credibility, fear of retaliation, fear of not

being believed, and the additional humiliation and distress that can come from

pursuing a sexual harassment claim. Therefore, without having a better

understanding of the circumstances and the fear that most victims feel, courts

cannot be allowed to dismiss sexual harassment claims so easily.

Sexual harassment cases require

understanding and evaluation of not only the content of the sexual harassment,

but also the context in which the sexual harassment occurred. As part of this

evaluation, courts must consider the societal position and the relative power

dynamics at work between the victim and the offender. This is especially true

with respect to sexual harassment in the workplace, where so often it involves

a subordinate and his/her superior.

In this regard, the timing of

the Supreme Court’s recent decision seems apt and of particular significance.

It calls for gender sensitivity in our legal system and appropriately confirms

that in reviewing such sexual harassment claims, the standard should not be

that of an ordinary person, but that of a person in the same position as the

victim of sexual harassment.

BKL has a dedicated team of

professionals who can provide assistance in investigating sexual harassment

complaints in the workplace, training and education on sexual harassment

prevention, implementing policies and procedures to prevent reoccurrence of

sexual harassment in the workplace, and providing effective representation in

sexual harassment-related litigation.

Please feel free to contact our

Labor & Employment Practice Group if you have any questions or require

assistance with a sexual harassment issue.