국가인권위원회의 숙직 근무에 있어서의 남녀 차별에 관한 결정에 대한 비판적 검토 -「국가인권위원회법」상의 차별 개념을 중심으로 -

Abstract

On October 18, 2022, the National Human Rights Commission of Korea made a decision on the petition claiming that the Defendant's act of assigning female employees exclusively to holiday and weekend day duties and male employees exclusively to night duties in the staff-duty assignment was discrimination against men. The commission rejected the petition based on the judgment that it was difficult to see the Defendant's staff-duty assignment as a discriminatory practice against women. However, the commission expressed the opinion that the Defendant would need to gather opinions from female employees regarding the operation of night duties and establish reasonable, efficient strategies for them in consultation with the labor union. This decision was not made with reference to Article 11 of the Constitution as an adjudicatory norm. The so-called indirect application theory implies that the corresponding norm does not constitute the major premise of the trial. In this case, the only issue of the trial is whether the Defendant's staff-duty assignment is deemed to be the "discriminatory act violating the equal right" prescribed in subparagraph 3 of Article 2 of the National Human Rights Commission Act. In this decision, it was not clear whether the commission determined that the Defendant's staff-duty assignment was deemed to be "discriminatory," but the corresponding act was based on "justifiable grounds," or the commission viewed the Defendant's staff-duty assignment as non-discriminatory. The latter may hold true from a formal point of view, while the former may hold when its content is considered. The corresponding act cannot be deemed to be non-discriminatory because, in this case, male and female employees were not equally treated. It was seemingly the case that the corresponding act did not result in significant detriment and thus was not recognized as discriminatory; however, even a "distinction" is deemed to be discriminatory in law. It seemed that the commission mistook the concept of "equality" provided in the National Human Rights Commission Act. The proof for that can be found in the commission's description of "formal, mechanical equality." In law, "formal, mechanical equality" is regarded as an ideal value. If "formal, mechanical equality" was violated, the issue would have to be dealt with through constitutional trials. It is inappropriate to deny the ideal of law even without such procedures.