Supreme Court: Asking Disability-Related Questions Unrelated to Job Duties During Interviews Constitutes Discrimination

The Supreme Court has ruled that asking disabled individuals questions related to their disabilities that are not directly related to the job during the interview process for recruitment constitutes discrimination against persons with disabilities.

According to the legal community on the 22nd, the Supreme Court's First Division (Presiding Justice Seo Kyunghwan) upheld the lower court's ruling in favor of Plaintiff A in a lawsuit seeking the cancellation of a rejection decision against Chairman B of the Personnel Committee of Hwaseong City, Gyeonggi Province, and Hwaseong City itself.

The court stated the reason for dismissing the appeal was that "there was no error in the lower court's judgment that did not violate the rules of logic and experience or exceed the limits of free evaluation, nor was there a misinterpretation or misapplication of Article 50-3, Paragraph 2 of the Local Public Officials Appointment Decree and the legal principles regarding the cure of defects."

A, who has a Grade 3 mental disability, applied in 2020 for the Grade 9 general administration recruitment for persons with disabilities in Hwaseong City. Initially, Hwaseong City announced plans to select nine candidates, but A was the only one to pass the written exam held in June 2020.

The problem arose during the interview process. In September 2020, during the interview, the interviewers asked A questions unrelated to the job, such as "What type of disability do you have?", "Are you registered as disabled?", and "Is your sleepiness due to medication or illness?" Subsequently, A received a "low" rating in the "creativity, willpower, and potential for development" category and was ultimately graded as "insufficient."

Article 50-3 of the Local Public Officials Appointment Decree, a presidential decree, stipulates that for interview evaluations of local public officials below Grade 6, if the majority of examiners rate two or more of the five evaluation elements as "low," or if the majority rate the same evaluation element as "low," the candidate shall be given an "insufficient" grade.

Furthermore, the head of the examination institution may conduct an additional interview for candidates who received "excellent" or "insufficient" grades if deemed necessary to ensure objectivity and fairness, considering the number of applicants, the number of planned recruits, and the interview method.

Hwaseong City conducted an additional interview for A, but A again received an "insufficient" grade and was ultimately rejected.

A filed a lawsuit against the Chairman of Hwaseong City's Personnel Committee, claiming that asking disability-related questions unrelated to the job during the initial interview constituted discrimination prohibited by the Act on the Prohibition of Discrimination against Persons with Disabilities, requesting cancellation of the rejection and claiming 5 million won in damages and delayed interest from Hwaseong City.

The first trial acknowledged that discrimination against A, a person with a disability, occurred during the initial interview but ruled against the plaintiff.

The court pointed out, "Asking a disabled candidate about their disability during an interview is asking questions not posed to non-disabled individuals, treating disabled and non-disabled persons differently. Regardless of the interviewers' intent, such questions can influence other interviewers to hold prejudice or bias against the disabled candidate, cause embarrassment or intimidation to the disabled candidate, and take time away from other questions, potentially resulting in unfavorable outcomes for the disabled candidate."

It added, "Article 47, Paragraph 2 of the Act on the Prohibition of Discrimination against Persons with Disabilities stipulates that the burden of proof lies with the opposing party to prove that the discriminatory act was not based on disability or that there was a justifiable reason. The evidence submitted by the defendants is insufficient to prove that the discriminatory act was not based on disability or that it was unavoidable due to the nature of the specific job or business."

Furthermore, the court stated, "The act of interviewers asking the plaintiff disability-related questions unrelated to the job during the initial interview constitutes discrimination prohibited by the Act on the Prohibition of Discrimination against Persons with Disabilities, and the interviewers' judgment based on such questions constitutes an abuse or excess of discretion."

However, the first trial court accepted Hwaseong City's argument that "A's failure to pass the exam was due to the 'insufficient' grade received in the additional interview, which did not include any disability-related questions or evaluations, so there was no abuse or excess of discretion in the interview process."

The court stated, "Since only candidates who received 'excellent' or 'insufficient' grades in the initial interview take the additional interview, the additional interview cannot be considered a completely separate and independent exam from the initial interview. However, it is reasonable to consider that the discriminatory defect in the initial interview was remedied by the additional interview."

The court reasoned that ▲the purpose of the additional interview is to provide corrective measures or re-evaluation opportunities to candidates who received unusually high or low results due to non-objective or unfair questions or evaluations in the initial interview; ▲if all defects in the initial interview were automatically carried over, the purpose of the additional interview to provide corrective or re-evaluation opportunities would be meaningless; ▲the additional interview was conducted by new interviewers excluding those from the initial interview, without prior information on the initial interview evaluations; and ▲there was no evidence of disability-related questions or other discriminatory acts during the additional interview.

However, the second trial court ruled differently. It canceled B's rejection decision against A and ordered Hwaseong City to pay A 5 million won in damages plus interest.

The second trial court agreed with the first court that discrimination occurred during the initial interview and that no such discrimination occurred during the additional interview.

However, the second trial court held that the results of the initial interview, where discrimination existed, were not severed from the additional interview and influenced the outcome, so the defect was not cured as the first trial court had ruled.

The court stated, "Even if a lawful additional interview is conducted, the illegal results of the initial interview are not completely removed from the final interview grade or final selection decision. Recognizing the cure of defects in the initial interview due to the lawful additional interview would disadvantage the candidate. Therefore, it is reasonable to hold that the defect in the initial interview is not cured by the lawful additional interview," overturning the first trial's ruling.

The court pointed out, "The additional interview is intended to supplement deficiencies in objectivity or fairness within the discretion of the interviewers in the initial interview, not to remedy cases where the initial interview was illegal due to abuse or excess of discretion."

It also noted, "It is difficult to exclude the possibility that the interviewers in the additional interview held a prejudice that the plaintiff had received an 'insufficient' grade in the initial interview, which could have caused disadvantage to the plaintiff."

The court concluded, "Ultimately, the initial interview was illegal due to abuse or excess of discretion, and the defect was not cured by the additional interview, so this decision must be canceled."

The Supreme Court's judgment was the same.

The court stated, "Employment is an important medium for income base, personality realization, and social integration for persons with disabilities, and thus is a core area where discrimination must be prohibited. Prohibiting discrimination in the employment process ensures fair participation and competition between disabled and non-disabled persons, guaranteeing equal opportunities. Therefore, the interview process for hiring persons with disabilities must reflect these principles to the fullest extent."

It continued, "Considering the provisions and system of the Act on the Prohibition of Discrimination against Persons with Disabilities and the nature of employment, if an employer asks a disabled candidate questions unrelated to the job about their disability during the interview, thereby treating the disabled candidate unfavorably, this constitutes discrimination under Article 4, Paragraph 1, Subparagraph 1 of the Act, unless the employer proves that the discrimination was not based on disability or that there was a justifiable reason such as the nature of the specific job or business."

Article 4, Paragraph 1, Subparagraph 1 of the Act on the Prohibition of Discrimination against Persons with Disabilities prohibits discrimination such as restricting, excluding, separating, or refusing persons with disabilities without justifiable reasons based on disability.

The court concluded, "There is no error in the lower court's judgment that did not violate the rules of logic and experience or exceed the limits of free evaluation, nor was there a misinterpretation or misapplication of the interpretation and application of 'discriminatory acts' under Article 4, Paragraph 1 of the Act, 'justifiable reasons' under Paragraph 3 of the same article, or the recognition of abuse or excess of discretion."

Article 4, Paragraph 3 of the Act states that notwithstanding Paragraph 1, discrimination is not recognized if there are justifiable reasons, including 1) excessive burden or significantly difficult circumstances in refraining from prohibited discrimination, and 2) cases where discrimination is unavoidable due to the nature of the specific job or business.

A Supreme Court official stated, "This ruling is the first to clarify that asking questions unrelated to the job about disabilities during the employment process constitutes discrimination prohibited by the Act on the Prohibition of Discrimination against Persons with Disabilities."