This blog post explores why the prohibition against discrimination in the employment sphere carries different levels of protection depending on the grounds for discrimination. We examine how legal principles, mandatory provisions, and labor market realities interact.
Traditionally, discrimination refers to the act of labeling specific groups as minorities and treating them unfavorably based on factors such as gender, race, religion, ideology, disability, or social status. Generally, the constitutional order of democratic nations incorporates the value judgment that discrimination based on these grounds must be prohibited in the spirit of protecting human rights. Accordingly, our Constitution also declares: “No person shall be discriminated against in any area of political, economic, social, or cultural life on the basis of gender, religion, or social status.” Employment-related fields are a prime example of normative areas where discrimination against minorities is most acutely highlighted. The prohibition of discrimination in employment relationships also places paramount emphasis on protecting workers’ human rights. Therefore, even if relying on policy objectives to establish fair competition and exchange order in the labor market, anti-discrimination legislation loses its legitimacy if it does not align with the purpose of protecting workers’ human rights.
The principle of non-discrimination, or the concept of equality, in employment relationships is based on the principle that ‘equal things should be treated equally’. However, unless specific criteria exist defining what constitutes ‘equality,’ the degree of protection afforded to workers under the anti-discrimination principle may vary depending on the nature of the attributes forming the basis for the prohibited discrimination. For example, even with anti-discrimination laws in place, persons with disabilities may face discrimination during the hiring process due to attributes of their disability directly related to the job content. Furthermore, the level of protection afforded to workers by the prohibition of discrimination varies depending on whether the specific working conditions in an employment relationship are restricted by mandatory regulations or determined by the free will of the parties.
When mandatory regulations prohibit wage discrimination against individual workers, a worker claiming redress for such discrimination can assert their right to equal treatment by proving that their work is equivalent to that of the comparator. Conversely, if wage differences between individual workers result from a free contract between the employer and the worker, such a contract may serve as a reasonable basis justifying wage differences for individual workers, unless mandatory regulations prohibiting wage discrimination against workers under identical conditions exist.
Even in areas where anti-discrimination laws function as mandatory regulations to strengthen worker protection, the degree of protection varies according to the intent of those laws. For example, if the provision stipulating “equal pay for work of equal value between men and women” under the “Act on Equal Employment and Support for Work-Family Balance” is intended merely to passively modify a wage system where factors set by the employer disadvantage women solely because they are women, this falls into a category where the level of protection against discrimination against women is relatively weak. Conversely, if the intent of the same provision reflects the reality that the value of female workers has been persistently undervalued in the actual labor market, aiming to compensate for this and achieve resulting wage equality between men and women, it falls within the category of strong protection under the principle prohibiting discrimination.
Meanwhile, prohibiting discrimination against workers based on age or educational background within the same employment relationship is generally considered to offer relatively weaker protection compared to traditional grounds like gender. Of course, the intent behind anti-discrimination laws or principles for older workers or those with lower educational attainment is no different from that for traditional grounds. Therefore, within the scope that does not excessively restrict an employer’s business activities requiring workers of a specific age group, it is possible to enact anti-discrimination laws for policy objectives in the labor market. However, since changes in labor capacity due to age are an unavoidable universal condition for all humans, arguments are also raised that prohibiting discrimination based on age is unjustified.
