Protection against Employment Discrimination in the Republic of Korea
Upon consideration of a communication submitted before it, the UN Committee on the Elimination of Racial Discrimination held the Republic of Korea accountable for multiple violations of rights under the International Convention on the Elimination of All Forms of Racial Discrimination, including the right to work, and access to an effective remedy.
Following the exhaustion of available legal avenues of redress in the Republic of Korea (Korea), this communication was submitted before the UN Committee on the Elimination of Racial Discrimination (Committee) in 2012. The case concerns mandatory tests for HIV/AIDS and illegal drugs use required of foreign teachers of English in Korea. Korean citizen teachers and ethnic Korean noncitizen teachers are not required to undergo such scrutiny. The petitioner (L.G.) in the present case is a former English teacher from New Zealand who lost her job in 2009 after refusing to undergo a second round of tests to renew her contract. The petitioner has emphasized in her arguments that mandatory HIV /AIDS tests and their consequences on potential employment are not in compliance with international labor and human rights standards. L.G.’s employer, the Ulsan Metropolitan Office of Education, has justified the tests as a means to check the values and morality of foreign English teachers.
In its decision, the Committee ruled against the Korean government, finding that the mandatory testing policy did not appear to be justified on public health grounds or any other ground, and was a breach of the right to work without distinction to race, color, national or ethnic origin (as enshrined in Article 5 (e)(i) of the International Convention on the Elimination of All Forms of Racial Discrimination). The Committee also held the Korean government in violation of the right to an effective remedy (under Article 6 of the Convention) given the inadequate response of the competent authorities in Korea when L.G. had initially brought her complaint before them.
The Committee has issued a set of robust recommendations in this case including, calling on Korea to grant L.G. adequate compensation for the moral and material damages she suffered, including compensation for the lost wages during the one year she was prevented from working. The Committee also urged the authorities to take steps to review regulations related to the employment of foreigners, and abolish any legislation or policy which has the effect of creating or perpetuating racial discrimination.
Implementation of the decision is currently in progress. Enforcing the Committee recommendations will constitute concrete steps by Korea towards meeting its obligations under the Convention. In its decision, the Committee explicitly states that it wishes to receive, within 90 days information from the Korean government about the measures taken to give effect to the Committee’s opinion. With respect to the aforementioned policy of mandatory testing, the Korean government has said in a submission to the Committee that since 2010, mandatory testing is no longer required in order for foreign teachers of English to renew their contract, and that this development rendered the complaint redundant. The government’s assertion however has been disputed, and also, L.G. has emphasized that that mere discontinuance of the policy does not constitute a complete remedy for the violation of her rights. Proper implementation of the Committee decision is thus vital to ensuring justice in this case.
L.G. was represented in this case by Benjamin Wagner, the founder of International Advocacy.
It is noteworthy that in prescribing recommendations, this decision does not refer only to foreign English teachers, but to regulations for all foreign workers. In an increasingly globalized world, particularly as pertains to labor, this case is significant because it highlights the discrimination that can be faced by foreign/migrant workers and upholds their human rights. Moreover South Korea has been criticized in recent years for its treatment of foreign/migrant workers. If properly enforced, the ruling will have an important impact on workers’ rights in Korea. At the very least, as one commentator noted, the case provides ‘a solid foundation on which to pressure the South Korean government.’ The decision will also likely influence developments in other countries where workers face similar violations of their rights.