earticle

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.