임신 및 출산한 직장 여성에 대한 괴롭힘(maternity harassment) 방지를 위한 일본 법제의 동향 및 시사점

Abstract

Article 32, paragraph 4 of the Constitution states that “a woman’s work is specially protected and not discriminated unfairly in terms of employment, wages and working conditions.” This article declares special protections for the survival, health and maternity protection of working women. Based on this, the Labor Standards Act specifically stipulates the protection of women, and has provisions such as parental leave to support maternity protection and support work-family balance under the Equal Employment Opportunity and Work-family Balance Assistance Act. Furthermore, the so-called “Workplace Harassment Prevention Act” has been implemented in Korea through a revision to the Labor Standards Act in recent years. In order for these regulations to be effective, a work environment without materiality harassment must be established. This is because, in the workplace environment where maternity harassment exists, women can give up using the system guaranteed by the Constitution. On the other hand, although the "Workplace Harassment Prevention Act" was implemented, there are problems. The problems include ambiguity in regulations, ambiguity in scope, and ambiguity in judgment. The biggest problem is that there is no regulations to prevent maternity harassment. As a result, current laws can't provide for the survival, health and maternity protection of working women, and can't prevent maternity harassment, which prevents women's career breaks and ultimately solves low birth rates. In order to solve these problems, we reviewed the legislation to prevent materiality assessment in Japan and found three implications. First, it is necessary to subdivide the types of harassment in the workplace and set up separate regulations for each type of granularity in order to prepare legislation to prevent materiality assessment. Second, if we embark on legislation to prevent the maternity harassment, we need to consult the academic discussions and theories of the subsequent rulings, including the 2014 ruling by Japan's Supreme Court. In particular, we should pay attention to the grounds for determining that dismissal and disadvantageous treatment are invalid. Then, the position of the Supreme Court ruling on the illegality criteria of 'workers consent' and 'special circumstances' should be examined in detail. Third, Korea and Japan academia agree that legislation preventing maternity harassment, maternity protection, work-family balance support, and WLB legislation are closely related to each other. Therefore, it is necessary to keep a close eye on Japan's materiality assessment act and related legislation at all times when preparing legislation to prevent materiality assessment in Korea in the future.