Cases of Correction of Discrimination in Childcare Leave
Bongsoo Jung (Korean labor attorney, KangNam Labor Law Firm)

I. Introduction
The low birthrate problem in our country has become so serious that it threatens even the survival of the nation. In order to solve the low birthrate problem, the Maternity Protection Act is continuously being revised, and the use of childcare leave is being actively encouraged. Childcare leave is a system in which a worker takes a leave of absence in order to raise a child under the age of 8 or in the second grade of elementary school or below. It can be used regardless of gender, and the proportion of men is gradually increasing. In 2020, 112,000 people used childcare leave, and male workers accounted for 24.5%. In 2024, 132,000 people used childcare leave, and male workers increased to 31.6%. Behind this increase is the government’s consistent efforts to protect maternity and the institutionalization of prohibiting discrimination caused by the use of childcare leave. Nevertheless, the overwhelming majority of workers are reluctant to use childcare leave, and social perception is that if one uses childcare leave, one must give up some degree of success in the workplace.
According to the “Survey on the Actual Condition of Discrimination in Pregnancy, Childbirth, and Childcare Leave” conducted by the National Human Rights Commission in 2018, among respondents who used childcare leave, 69.8% experienced discrimination in placement and promotion, and 71.1% experienced discrimination in compensation and evaluation. Article 19(3) of the Equal Employment Opportunity Act stipulates that “An employer shall not dismiss or take any other disadvantageous treatment against a worker on the grounds of childcare leave, and during the period of childcare leave, the employer shall not dismiss the worker.”
In October 2023, there was a case at the National Labor Relations Commission correcting discrimination that had occurred due to the use of childcare leave (Central 2023 Discrimination Case No. 15). The National Labor Relations Commission recognized discrimination in promotion on the grounds of childcare leave.
It ruled that the worker concerned should be retroactively granted the opportunity for promotion, and if promoted after re-examination, the worker should be paid the amount of wages that would have been received if such discrimination had not occurred.
Since the Labor Relations Commission Act introduced duties regarding violations of obligations concerning measures against gender discrimination and sexual harassment on May 19, 2022, this was the first decision in which the Labor Relations Commission issued a corrective order for discrimination related to childcare leave. This decision is considered to play the role of a catalyst in activating childcare leave in the future.
In the main text, we intend to examine the contents of this decision in detail.
In addition, we intend to examine administrative interpretations of similar cases and establish criteria for determining whether discrimination arises due to childcare leave.

II. Case of Correction by the Labor Relations Commission of Gender Discrimination on the Grounds of Childcare Leave
1. Case Overview
In the case at issue, the worker joined the company on November 6, 2006, and worked as a team leader in a certain department. After applying for maternity leave and childcare leave on November 1, 2018, the worker was demoted from team leader to employee (inspector). After returning from childcare leave, the worker was excluded from promotion every year and was again excluded from promotion on February 16, 2023, and thus applied to the Labor Relations Commission for relief, claiming that she had been subjected to discriminatory treatment. The company’s rules of employment provided a discriminatory provision stating that “the rate of increase in base salary during the period of childcare leave may be adjusted,” and the promotion regulations stipulated that “those who are on leave shall be excluded from promotion.”
However, the employer argued that as a result of the personnel evaluation conducted on the worker, it was judged that the worker lacked the work ability to serve in the position of deputy general manager, and therefore she was excluded from the promotion review. The employer claimed that this had nothing to do with maternity leave or childcare leave, and that the failure to promote in this case did not constitute discriminatory conduct between men and women.
In the initial trial, it was premised that this case, on the grounds of childcare leave, constituted a gender discrimination case subject to relief by the Labor Relations Commission. However, considering that the comparator in this case was seen as a man who had used childcare leave, and that there was no significant difference in the average time required for promotion between comparator workers, and that there were also cases of women who had used childcare leave and were promoted in this company, and that the transfer and removal from the team leader position upon the worker’s return from childcare leave could not necessarily be seen as disadvantageous measures due to maternity leave or childcare leave, it was determined that the failure to promote in this case could not be considered as discriminatory conduct between men and women.
Accordingly, the worker applied for re-examination to the National Labor Relations Commission, arguing that although she had met the required promotion evaluation scores, the employer excluded her from promotion on the grounds that she had not received the recommendation of the department head, and that the department head excluded her from recommendation because she had used maternity leave and childcare leave. The worker argued that the failure to promote in this case was disadvantageous treatment on the grounds of maternity leave and childcare leave, and that the act of not granting her the promotion opportunity in 2023 constituted discriminatory conduct between men and women. Furthermore, she demanded that, with respect to promotions in the first half of 2023, the company grant her a promotion opportunity, compensate her for the lost wages and consolation money arising from such discriminatory treatment, and improve the rules of employment and promotion regulations that contained discriminatory provisions.
The National Labor Relations Commission acknowledged that the employer’s act of not granting the worker a promotion opportunity in the first half of 2023 constituted discriminatory treatment. It ruled that the company should grant the worker a promotion opportunity in the first half of 2023, and if the worker was evaluated as qualified for promotion through this opportunity, the company should immediately pay, on the date of such promotion, the wage difference accrued from the time the worker was not promoted due to such discrimination until the time of promotion. The Commission also ordered the company to improve the rules of employment and promotion regulations that formed the basis of the discriminatory treatment.

2. Criteria for Judgment of the Decision
The issues to be dealt with in this case can be summarized as :
(i) whether a promotion discrimination case on the grounds of childcare leave is subject to relief by the Labor Relations Commission,
(ii) whether it is necessary to select a comparator in cases of childcare leave discrimination,
(iii) whether there was discrimination or disadvantageous treatment against the worker compared to the comparator, and
(iv) if there was disadvantageous treatment, whether there was a reasonable justification for such disadvantageous treatment.

(1) Promotion discrimination due to use of childcare leave
Article 2(1) of the Equal Employment Opportunity Act defines “discrimination” as a case where an employer, without a reasonable cause, treats differently in hiring or working conditions, or takes other disadvantageous measures against a worker on grounds such as sex, marital status, family status, pregnancy, or childbirth.
Whether a situation constitutes disadvantageous treatment should be judged by reference to the usual personnel practices of the workplace, but generally, disadvantageous treatment includes cases where the worker is not reinstated after the expiration of the childcare leave period, or is unreasonably transferred, or where the period of childcare leave is not included in the length of service used as the basis for promotion, pay increases, retirement allowance, or accrual of annual leave days. Therefore, promotion discrimination arising from the use of childcare leave also falls within the scope of relief by the Labor Relations Commission for gender discrimination.

(2) Comparator workers for those who used childcare leave
In selecting comparator workers, the National Labor Relations Commission took a broad approach, designating male workers who did not use childcare leave as comparators, thereby expanding the standard. The Local Labor Relations Commission, on the other hand, regarded male workers who had used childcare leave as comparators. In this selection of comparators, the National Labor Relations Commission viewed the matter more broadly, considering as comparators all male workers who were eligible to use childcare leave but did not, thus making it easier to determine the existence of discrimination.

(3) Discrimination or disadvantageous treatment compared to comparator workers
The key issue is whether there was discrimination or disadvantageous treatment between workers who used childcare leave and those who did not.
First, the rules of employment defer wage increases for those on childcare leave, and the promotion regulations explicitly specify “those on childcare leave” as grounds for disqualification from promotion. This constitutes discrimination on the grounds of childcare leave.
Second, the removal of the worker from the team leader position and transfer to inspector, even if not explicitly intended as discriminatory treatment, can be presumed to have been caused by the childcare leave, and thus constitutes discrimination.
Third, even though the worker in this case satisfied the objective qualifications for promotion, she was excluded from promotion; this can be considered as discrimination because it is judged that this would not have happened without the childcare leave. In this company, it generally takes about 11 to 12 years for a university graduate employee to be promoted to deputy general manager, while for those who have used childcare leave, it takes about 12 to 16 years at the shortest. The promotion period for workers who used childcare leave is significantly longer than for those who did not.

(4) Reasonableness of discrimination due to use of childcare leave
The determination of the existence of discrimination and the judgment of its justification should be distinguished. In deciding on the existence of discriminatory treatment, the Commission actively interpreted the situation as discrimination, given that the worker was excluded from promotion even though she met the qualifications, and that without maternity and childcare leave, she would not have been excluded. In judging the justification or reasonableness of the discrimination, the Commission clarified the requirements necessary for the employer to be recognized as acting within legitimate exercise of managerial discretion. In addition, according to the relevant laws, the burden of proof is placed on the employer.

3. Corrective Order of the Labor Relations Commission
In the corrective order, instead of ordering reinstatement to the status the worker would have had without discrimination, the Commission ordered the retroactive granting of promotion opportunities. That is, considering the purpose of the current legal system, it did not order restoration to the position the worker might have held had there been no discrimination, but, taking into account the employer’s managerial authority, ordered the retroactive granting of promotion opportunities, thereby considering both the legal principle of reinstatement and the employer’s personnel authority at the same time.

III. Administrative Interpretations Related to Childcare Leave
1. Related Case (1/2): Inquiry on whether exclusion from automatic appointment to deputy position due to non-recognition of childcare leave period as length of service, resulting in disadvantages in retirement allowance, etc., constitutes a violation of law
▶ Question:
I joined the company on May 29, 1989, and was promoted and advanced in grade to Grade 4 as of March 1, 1995. According to the company’s personnel regulations, I should have automatically been classified as holding a deputy position as of September 1, 1998 (Personnel Regulations: those who have passed 3 years and 6 months since promotion to Grade 4 are automatically designated as deputy, and those with less than 3 years and 6 months are classified as senior staff), and allowances, etc. should have been paid. However, due to the restriction in the personnel regulations, the period of childcare leave was not counted as part of the length of service, and thus I was excluded from promotion and advancement. Therefore, does this constitute disadvantageous treatment on the grounds of childcare leave under Article 19 of the Equal Employment Opportunity Act? In addition, can I demand recalculation of retirement allowance and other benefits that were not paid because of this?
▶ Reply:
Article 19(3) of the Equal Employment Opportunity Act stipulates that an employer shall not treat a worker unfavorably on the grounds of childcare leave and that the period of childcare leave shall be included in the length of service. Therefore, if, as in your case, the personnel regulations did not include the period of childcare leave as part of the length of service that serves as the basis for promotion or advancement, resulting in the worker being excluded from promotion or advancement, this constitutes a violation of Article 19(3) of the Equal Employment Opportunity Act. Furthermore, the right to claim wages, etc., arising from disadvantageous treatment on the grounds of childcare leave shall remain valid unless the statute of limitations under Article 49 of the Labor Standards Act has expired.

2. Related Case (2/2): Claim for salary step increase not possible due to expiration of statute of limitations for childcare leave not used 10 years ago
▶ Inquiry:
Recently, an embassy made an inquiry. An employee used childcare leave from January 1, 2020, to December 31, 2020. According to the embassy’s practice, if a worker took leave for more than six months, the automatic annual step increase was not granted. In July 2025, a female embassy employee claimed that childcare leave should not cause any disadvantage in length of service, and therefore requested payment of the entire amount of money lost due to not receiving step increases over the past four years and six months. After reviewing the relevant laws, the embassy retroactively raised the employee’s salary step and paid the difference in the amount underpaid during that period. Following this, another female embassy employee also claimed that she had used one year of childcare leave from 2016 to 2017 and had been disadvantaged because the embassy did not increase her salary step, and she applied for payment of the unpaid step increase wages over the past eight years. The embassy inquired with the Ministry of Labor regarding this.
▶ Reply:
According to Article 19(3) of the Equal Employment Opportunity Act, an employer shall not dismiss or otherwise treat a worker unfavorably on the grounds of childcare leave. In this context, “unfavorable treatment” refers to measures such as suspension, disciplinary suspension, transfer, reassignment, prohibition of reporting to work, suspension of promotion, reduction of wages, etc., which cause economic, mental, or livelihood disadvantages to the worker without reasonable cause after childcare leave.
If a salary step increase was omitted without reasonable cause after childcare leave, it could be considered unfavorable treatment. However, as of 2025, the statute of limitations under Article 249(1)5 of the Criminal Procedure Act has already expired, and therefore unfavorable treatment against a worker who used childcare leave cannot be presumed.

IV. Implications
Childcare leave is being encouraged as a way to solve the low birthrate problem in our country. In reality, the reason many workers are unable to use childcare leave is because they anticipate discrimination and disadvantages in personnel matters resulting from its use. To correct this, both a change in social awareness and institutional support are necessary. Regarding childcare leave, there must be an awareness of shared responsibility for child-rearing and gender equality, recognizing that the duty of raising children is not only on women but also on men. Through this, it will be possible to promote women’s participation in the labor market, who have traditionally borne the main role of caregivers, and to prevent career interruptions.
Corrective measures against discrimination through the Labor Relations Commission will serve as the most desirable channel for rectifying discrimination related to childcare leave. There are several reasons why the role of the Labor Relations Commission is important. First, in cases of discrimination correction under the Labor Relations Commission Act, the burden of proof that no discrimination in relation to childcare leave occurred lies with the employer (Article 30 of the Equal Employment Opportunity Act). Second, the Labor Relations Commission has the advantages of speed and expertise. That is, once a discrimination correction case is filed, it is required in principle to make a ruling within 60 days, thereby handling the matter swiftly, and in the process of adjudication, labor-management experts (representatives of workers, employers, and public interest members) directly examine the parties, which results in high acceptance of the decision. Finally, if an employer fails to implement a corrective order issued by the Labor Relations Commission without justifiable reason, an administrative fine of up to 100 million won may be imposed (Article 39 of the same Act), thereby enhancing the enforceability of the Commission’s decisions.
It is hoped that the active use of childcare leave in the future will become a necessary tool to help solve the low birthrate problem in our country.