Asking about applicant's disability during hiring process discriminatory: Supreme Court

South Korea's Supreme Court on Monday confirmed a lower court ruling that asking person with a disability if that disability made them "extra sleepy" is an act of discrimination.

In a recently-confirmed ruling, the Supreme Court stated that the plaintiff had been discriminated against by the Hwaseong city government by being asked if his mental disability, or the medication he takes because of it, makes him particularly prone to sleepiness. The plaintiff applied in 2020 for a grade 9 public servant post, and was given an "unsatisfactory" grade by interviewers who said he "lacked creativity, will and potential."

"Banning discriminatory actions in the hiring process is to ensure fair competition between those with or without disabilities, and provide equal opportunity," the court said in its verdict.

"If the employer asks an applicant about their disability, which has no direct relation to the job, thereby hurting one's chance in being hired, it should be considered an act of discrimination, unless (the employer) can prove that such an action was not discriminatory or was crucial to the job."

This decision marks the first time the Supreme Court has specified that asking about one's disability in a job interview can be an act of discrimination, if the question is unrelated to the job in question.

The Act on the Prohibition of Discrimination Against Persons with Disabilities and Remedy Against Infringement of Their Rights states that no person with a disability should be discriminated in relation to the hiring, wage, benefits, education, promotions, retirement, dismissal or any process related to one's work.

But the Article 4 of the act states that acts of potential discrimination -- such as refusing to hire a person with a disability -- could be considered not discriminatory if it can be proven to be essential due to the nature of the job, referring to cases when the disability would make it impossible for the applicant to carry out the job.

The plaintiff claimed he had been discriminated against by being asked about his disability, requesting that the city reverse its decision to reject his application. The district court had ruled in favor of the city, whereas Suwon High Court had overturned its ruling, leading to the city taking the case to the Supreme Court.

By Yoon Min-sik(minsikyoon@heraldcorp.com)