A Study on Interpretive Approaches to Establishing Standards for Determining Workplace Harassment

Despite the enactment of Articles 76‑2 and 76‑3 of the Labor Standards Act of Korea, which prohibit workplace harassment and require employers to investigate and address such incidents within the workplace under their initiative, a clear and consistent interpretative standard for determining what constitutes workplace harassment has yet to be firmly established, even after a considerable period since their enforcement in 2019.<br/> Several factors contribute to this situation. Notably, the provisions, drafted in the form of abstractly defined risk offenses, have often been interpreted as result-based offenses in practice. In cases where the victim alleges that harm has occurred, practitioners have frequently recognized the existence of workplace harassment without assessing whether the alleged conduct objectively qualifies as harassment under the law. Furthermore, although the statutory framework of the Labor Standards Act suggests that behaviors punishable under criminal law should not fall within its regulatory scope, practical experience has shown that even such conduct has often been treated as constituting workplace harassment under the Act. This approach has significantly contributed to the surge in complaints to the Ministry of Employment and Labor and to delays in the resolution of such cases.<br/> Therefore, while the accumulation of judicial precedents, employer experience in handling incidents, and administrative experience of the Ministry of Employment and Labor remains essential, it is crucial, in interpreting and applying Article 76‑2 and subsequent provisions, to maintain an interpretation consistent with their character as abstractly defined risk offenses. Specifically, efforts should be made to objectively assess whether a given act constitutes “conduct that exceeds the appropriate scope of work, causing physical or mental suffering to another worker or deteriorating the working environment.” Such an approach represents the most direct path toward inductively clarifying the conceptual scope of workplace harassment.<br/> Additionally, it should be emphasized that acts occurring in the workplace that do not meet the statutory definition of harassment under the Labor Standards Act cannot be remedied through this Act. In such cases, the protection and remedies available to victims should primarily rely on general civil procedures based on employer liability, as well as reporting to investigative authorities. Drawing attention to these procedural avenues can facilitate the prompt and effective relief of victims of workplace harassment.