Anti-discrimination in Employmet law and Different Treatment Between Regular and Fixed-term Teachers

This article first examines the history and current status of changes in the working conditions of fixed-term teachers. This review confirms that the differences in working conditions between regular and fixed-term teachers are largely based on the practical perception and practice of viewing fixed-term teachers as “non-civil servants.” Furthermore, it confirms that this discrepancy has been eliminated or narrowed through policy decisions by the Ministry of Education and Offices of Education, triggered by complaints to the National Human Rights Commission of Korea.<br/> Next, this article examines whether fixed-term teachers qualify as educational civil servants under the Educational Civil Servants Act. Rather than adopting a positive or negative view, this article presents its views on the strengths and weaknesses of both theories. While the positive view largely aligns with the systematic interpretation of the Educational Civil Servants Act and the National Civil Servants Act, its explanatory power is weakened by the fact that other laws, such as the Public Officials Pension Act, do not recognize fixed-term teachers as educational civil servants. The negative view also lacks the ability to explain the various responsibilities and obligations currently imposed on fixed-term teachers, on par with national civil servants.<br/> This article then examines whether the prohibition against discriminatory treatment under the Fixed-term Workers Act applies to both cases where temporary teachers are considered public officials and cases where they are not. It argued that the prohibition against discriminatory treatment applies to both cases. Furthermore, it argued that the four differences in working conditions in question lack reasonable justification and constitute unfair discrimination. Applying Supreme Court case law, none of the four differences in working conditions warrants differential treatment. This article emphasizes that, particularly when considering fixed-term teachers as public officials, policy or budgetary decisions based on the perception that they are “non-public officials” are not justified.<br/> Finally, this article argues that even if the prohibition against discriminatory treatment under the Fixed-term Workers Act does not apply, the differences in the four working conditions violate the constitutional principle of equality. This article argued that, even in light of the purpose and intent of the norms, regular teachers constitute a comparison group. In particular, this article consideres that differences in employment paths, etc. should not be considered in determining whether a comparison group is applicable, but rather in the next step of determining whether there is a reasonable cause for the difference.