Earticle

초록

영어

Age Discrimination Act of Korea was enacted and became effective on March 22th in 2009. The necessity to protect discrimination against older workers has been arising especially at work-places in Korea. Under these circumstances, I intend to introduce ADEA of U.S. to South Korea through this article. I have another purpose in this research, which is to take a close view on the 'Employment at Will Doctrine' of the U.S. The doctrine is well known as one of the representative legal theories of employment law in the U.S. Conclusions are as follow; ① The fact that the ADEA applies to discrimination against older workers in the all employment process is very notable. The doctrine of 'Employment at Will', of course, applies to the termination of employment against older workers strictly and narrowly. ② I think that the purpose and the content of the ADEA reflect well the importance of older workers' maintaining jobs in our human lives. Korean people remember still that many older workers had to retire compulsorily from their workplace under economic crisis in late 1990s (so-called 'I.M.F. Economy'). First of all, in general, we should have jobs to keep, promote, and enjoy our lives. In this point of view, the ADEA is not only an Act for protecting older workers, but also is an Act for realizing our life's value itself. Thus I think the Act is wonderful. ③ The fact that the burden of proof on an employee in a discrimination case shows a tendency to relax is notable. Theories concerning disparate treatment (including direct evidence, motivation, statistics) and defence (including seniority systems, BFOQ, RFOA, bona fide employee benefit plan etc.) have been permitted traditionally. In case of Smith v. City of Jackson, the Supreme Court held that disparate impact theory is available in ADEA. ④ The Supreme Court's holding in Oubre v. Entergy Operations, Inc. should be evaluated highly. Unless the employer complies with requirement of the statute, in spite of his or her agreement to waive, can the employee claim against the employer's discrimination action based on age? The answer is yes by the Supreme Court. ⑤ Finally, a front pay is one of remedies (including hiring of employees with or without backpay, reinstatement, promotion, compensation, equitable relief, liquidated damages, interest, lawyer fee etc.) in discrimination case. There is also a compensation system similar to a front pay remedy system in Korea. Though there exists difference between these two systems, the front pay system is interesting enough to attract attentions as a remedy in Korea.

목차

I. 서설
 II. 목적 및 적용범위ㆍ보호대상
  1. 목적
  2. 적용법위ㆍ적용대상자의 차별행위유형
  3. 보호대상 및 예외
 III. 차별입증 및 항변
  1. 차별입증
  2. ADEA 적용 대상자의 항변
 IV. 일시해고ㆍ조기퇴직과 연령차별
  1. 노동력삭감
  2. 조기퇴직ㆍ권리포기
 V. 차별규제절차
  1. 연방정부가 사용자가 아닌 경우의 구제절차
  2. 연방정부가 사용자인 경우의 구제절차
  3. 중재제도
 VI. 구제내용
  1. 채용명령ㆍ사전임금ㆍ소입임금지급명령
  2. 손해배상ㆍ부가적 손해배상
  3. 이자ㆍ변호사비용
 VII. 결론에 갈음하여
 Abstract

키워드

저자

• 송강직 [ Song, Kang Jik | 동아대학교 법학전문대학원 교수 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  노동법논총 [The Journal of Labor Law]

• 간기

  연3회

• pISSN

  1229-4314

• 수록기간

  1998~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 336 DDC 363