임금차별의 판단과 사법적 구제

Abstract

Hyosung wage discrimination case raises a question how the Courts could remedy wage discrimination against women has originated from occupational segregation in placement and promotion. To solve this question, it is considerable to approach to current wage discrimination clause in EEO law from a new perspective. Usually comparable worth clause under EEO law is read that evaluation of job value is the first step to adjudicate wage discrimination. Problem is that it is very hard for women workers, trade unions and feminist litigators to use the objective job analysis system in Korea. They cannot afford cost for the evaluation. Another problem is that, as job segregation has been prevailed since the enactment of law, it is likely to conclude that female dominant job and male dominant job are not the same in terms of job value. It is possible for victims of discrimination in placement and promotion not to be remedied by comparable worth clause. Thus, it is necessary to read comparable worth purposefully and broadly. This paper suggests that past discrimination should be considered as important evidence of wage discrimination. In Cortek case decision, the courts ordered back pay for wage discrimination for the first time in Kore. As there is no remedies clause under Korean EEO law, it has been controversial whether back pay remedy for wage discrimination can be available to plaintiffs. Cortek case decision stated that the plaintiffs were eligible for back-pay that they would have received without discrimination.