장애인 공무원의 근로자성과 채용단계에서의 장애차별 —채용 신체검사와 장애인차별금지법상 의학적 검사 금지를 중심으로— = Nature as Employees of the Public Officials with Disabilities and Disability Discrimination in the Hiring Process -Focused on the Recruitment Physical Examination and the Prohibition of Medical Examination under the Anti-Discrimination against Persons wi

다국어 초록 (Multilingual Abstract)

Issues such as employers discriminating against employees with disabilities on the basis of disabilities or refusing to fulfill their duty to provide reasonable accommodations are mainly to be discussed on the premise of a civil labor relationship. However, even in the case of public officials, they have the characteristics of employees who have the state or local government as their employers. However, in most cases, there are separate provisions in the public laws on the hiring and working conditions of public officials, so the labor-related laws, which have the nature as civil laws, such as the Labor Standards Act, do not apply well to public officials. Regarding the prohibition of discrimination on the basis of disability, the obligation to provide accommodations, and the prohibition of medical examination before employment, which are applicable to employees in civil labor relationship, may also be applied to public officials. This article reviews whether or not the provisions on the prohibition of discrimination in hiring and medical examination before employment under the Anti-Discrimination against Persons with Disabilities Act in relation to the medical examination in the hiring process for public officials, in particular, can be applied to public officials with disabilities. And according to its applicability, the interpretative and legislative solutions for problems of the public official recruitment physical examination regulations were reviewed. Article 12 of the Anti-Discrimination against Persons with Disabilities Act stipulates the prohibition of medical examination before employment. In the case of public officials, the physical examination for public officials recruitment at the pre-employment stage is widely permitted, and the standards include content for screening the severely disabled. In particular, private companies and public corporations often borrow the criteria for failing the physical examination set out in the public official recruitment physical examination regulations. If the public official recruitment physical examination is converted to an exceptional type of system for job performance evaluation after a job offer, the resulting improvement effect can have a significant impact on private and public enterprises. Such improvement should be made through a radical revision of the provisions of the physical examination for public officials recruitment that violate the provisions of the Anti-Discrimination against Persons with Disabilities Act and the provisions on the prohibition of medical examination prior to employment. It should be stipulated that the medical examination can only be performed after the notification of passing the exam, which can be considered as a job offer, is made. Medical experts should check only the reasons that may cause problems with their job performance and should not make any other pass or fail judgments. By fundamentally changing the normative structure of the public official recruitment physical examination regulations, if the state or local governments intend to reject employment based on the results of the physical examination, the applicant's inability to perform his/her duties must be proven through a separate committee's hearing procedure. Even before the legislative improvement, it is necessary to attempt a legal interpretative solution through the use of temporary injunctions and injunctions through the courts stipulated in the Anti-Discrimination against Persons with Disabilities Act.

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