Hiring

Prepare

Overview

In this module, we will look at employment rights, especially those that directly or disproportionately affect working women. We will look at two pieces of Japanese legislation: the Equal Employment Opportunity Act (EEOA) (on gender equality and sexual harassment) and the Comprehensive Promotion of Labour Policies Act (on workplace bullying).

Read

To prepare, please download and complete the assigned reading for this module.

Demonstrate Class Engagement

Demonstrate class engagement by submitting evidence of (a) pre-reading and (b) post-class reflection in relation to any five modules of the course.

Come to Class

The class is on 19 January 2025 (intensive class).

Participate

Contextualise

How did (a) equal employment opportunity, (b) sexual harassment and (c) workplace bullying emerge as social issues and what role, if any, did the law play in bringing attention to them?

Gender Equality

Workplace Bullying

Since 2012, workplace bullying ("power harassment") has been the most commonly complained about issue brought before the General Labour Counselling Desk (1/4 of cases in 2016). n 2015, the MHLW launched a website and Twitter account to provide guidance on power harassment (https://www.no-harassment.mhlw.go.jp/).

A 2016 survey revealed that:

1/3 workers said they had been bullied at work in last 3 years
only 52% of companies took any action
40% of victims did nothing (believing nothing would change = 75% or that they would suffer detriment = 25%)

Judge

How did the courts resolve new social problems, such workplace inequality, sexual harassment and workplace bullying, before there were specific laws in place

Using the Japanese Constitution and Civil Code, extracted below, how would you rule on the following fact patterns if you were a Japanese judge?

Sex Discrimination Cases

Problem One
(Resignation Case)

A-san worked at Mitsui Shipbuilding Company. When she was about to get married at the age of 23, she was celebrated at a company function,. But she was also required to resign from her continuing position and accept a position on renewable, once-year contracts. Upon falling pregnant a few years later, her contract was not renewed for the following year.

Problem Two
(Retirement Case)

B-san worked at Nagoya Broadcasting Corporation. Under the company's work rules, women were required to retire at 58 and women at 48. B-san's duties included office administration, researching news stories, and proof-reading scripts. When she asked Human Resources about the age discrepancy, she was told that it is because there was undisputed medical advice that women become physically weaker after the age of 55.

Would it make any difference if B-san worked at Kuratsu Red Cross Hospital as an emergency department nurse, and that the retirement policy was 60 for men and 55 for women?

Sexual Harassment Cases

Problem Three
(Unwanted Sexual Attention)

C-san was a hotel employee. Her immediate supervisor, the Chief of Accounts, started touching her; demanded that she go with him to a motel so that he could “see her naked”; and kissed her repeatedly against her will. When C-san resigned and brought a lawsuit against the Chief of Accounts, he did not even bother to enter a defence or appear in court when summoned.

Would it make any difference if the Chief of Accounts did put in a defence, rejecting the allegations as unsupported by independent witnesses, and then counter-sued for defamation when C-san complained to Head Office about his conduct towards her?

Problem Five
(PTSD)

E-san was a 45-year old experienced secretary. When she was alone in the office, her superior suddenly hugged her from behind, inserted his hand under her waist and started rubbing her breasts, hips and abdomen. Making no attempts to escape, the plaintiff endured this for about twenty minutes. Before deciding to seek legal advice more than a year later, she told no one, including her husband, sister and closest friends.

Would it make any difference is E-san was 22-years old, tried to resist the attack -- crying and screaming all the while -- and rushed home to tell her mother what had happened?

Problem Four
(Rumours of Promiscuity)

D-san was an editorial assistant at a publishing house. The editor-in-chief took an instant dislike to her (the feeling was mutual). He started spreading rumours and making defamatory comments about her sexual behaviour to other employees, executive officers and even the company’s business clients. The comments ranged from allegations that the plaintiff was, at various times, having affairs with a senior officer of the company, an employee cover designer, two staff reporters and a business client, to assertions that the plaintiff had uncontrollable sexual urges and was a mere pleasure seeker who led a pornographic lifestyle. When management refused to intervene despite the plaintiff's repeated requests, the plaintiff reluctantly resigned.

Problem Six
(Gender Harassment)

F-san was a mid-ranking official at the prefectural labour union association. She was required to run meaningless errands, buy cigarettes, serve tea and endure chauvinistic comments. Unable to endure meaningless work and weary from the insulting comments, she resigned.

Workplace Bullying Cases

Problem Seven

(Boss from Hell)

G-san was an entry-level surveyor. During her first six months of on-the-job training, her supervisor insulted her with comments such as, "What the hell are you doing, idiot?", "dumb-ass", and "if you are this stupid, you should really kill yourself." The supervisor claimed he was pointing out her errors and instructing her on how to remediate her work. He also said his rough language was "all in jest". G-san committed suicide.

Relevant Law

Constitution

Article 13. All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.

Article 27. All people shall have the right and the obligation to work.

Civil Code

Article 1. (1) Private rights must be congruent with the public welfare. (2) The exercise of rights and performance of duties must be done in good faith. (3) Abuse of rights is not permitted.

Article 90. A juridical act that is against public policy is void.

Article 709. A person that has intentionally or negligently infringed the rights or legally protected interests of another person is liable to compensate for damage resulting in consequence.

Article 715. A person that employs another person for a business undertaking is liable to compensate for damage inflicted on a third party by that person's employees with respect to the execution of that business; provided, however, that this does not apply if the employer exercised reasonable care in appointing the employee or in supervising the business, or if the damage could not have been avoided even if the employer had exercised reasonable care.

Legislate

How did policymakers respond legislatively to these social issues and the waves of litigation arising in the (a) 1960s and 1970s (gender discrimination), (b) 1990s (sexual harassment) and (c) 2010s (workplace bullying)?

See the legislation extracted below.

What are the advantages and disadvantages of this approach to law-making?
How do scholars explain why Japan adopted this approach to legislating for employment rights in Japan?

Law to Promote the Welfare of Female Workers by Providing for Equality of Opportunity and Treatment in Employment for Women (Act No. 113 of 1972) (1986 version)

...

Article 7 (Recruitment and Hiring). Employers shall endeavor to give equal opportunity to men and women in the areas of recruitment and hiring.

Article 8 (Job Assignment and Promotion). Employers shall endeavor to give equal treatment to male and female workers in the areas ofjob assignment and promotion.

Article 9 (Education and Training). Employers shall not discriminate against female workers by reason of their sex in giving employees the education and training determined by Ministerial Ordinance to be necessary to development of the basic abilities needed for the proper performance of their duties.

Article 10 (Employee Benefits). Employer shall not discriminate against female workers by reason of their sex in granting employee benefits such as company-subsidized loans for the building or purchase of homes and other like benefits, as established by Ministerial Ordinance.

Article 11 (Mandatory Retirement Age, Retirement, and Dismissal).

Employers shall not discriminate against female workers by reason of their sex in the areas of mandatory retirement age, retirement, or dismissal. 2
Employers shall not establish rules that mandate retirement at the time of marriage, pregnancy, or childbirth.
Employers shall not dismiss female workers for the reason that they have married, become pregnant, given birth, or taken leave from work in accordance with the provisions of the Labor Standards Law, art. 65, paras. 1-2 (maternity leave).

.,,

Article 13 (Voluntary Resolution of Complaints). Employers shall endeavor to bring complaints by female workers relating to any of the provisions in articles 8 through 11 to resolution on a voluntary basis by referring the complaint to a Complaint Resolution Board (established to resolve the complaints of workers and comprised of representatives of both management and the workers at that particular workplace) or utilizing another method of voluntary dispute resolution.

Article 14 (Assistance in the Resolution of Disputes). In the event of a dispute between an employer and a female employee on any matter in regard to which Ministerial Ordinance has established that employers shall take measures to achieve equality of opportunity and treatment for men and women in the area of employment, if either one or both of the parties to the dispute requests assistance, the Director of the Prefectural Office of Women's and Young Workers' Affairs is empowered to give any necessary assistance in the form of advice, guidance, and recommendations to the parties.

Article 15 (Referral to Mediation). When either one or both parties to any dispute covered in article 14 above (article 7 in regard to recruitment and hiring is excepted) requests mediation, the Director of the Prefectural Office of Women's and Young Workers' Affairs shall-if he or she finds it to be necessary to the resolution of the dispute (and Article 25 (Employer Measures to Facilitate Reemployment)

Law to Promote the Welfare of Female Workers by Providing for Equality of Opportunity and Treatment in Employment for Women (Act No. 113 of 1972) (1997 version)

...

Article 5 (Recruitment and Hiring). With regard to the recruitment and hiring of workers, employers shall provide women equal opportunity with men.

Article 6 (Assignment, Promotion, and Training). With regard to the assignment, promotion, and training of workers, employers shall not discriminate against a woman worker as compared with a man by reason of her being a woman.

Article 7 (Fringe Benefits). With regard to loans for housing and other similar fringe benefits as provided by ordinance of the Ministry of Health, Labour and Welfare, employers shall not discriminate against a woman worker as compared with a man by reason of her being a woman.

Article 8 (Mandatory Retirement Age, Retirement, and Dismissal)

With regard to the mandatory retirement age and dismissal of workers, employers shall not discriminate against a woman worker as compared with a man by reason of her being a woman.
Employers shall not stipulate marriage, pregnancy or childbirth as a reason for the retirement of women workers.
Employers shall not dismiss a woman worker by reason of marriage, pregnancy or childbirth, or for having taken a leave as stipulated in Article 65, paragraph 1 or 2, of the Labour Standards Law (Law No. 49 of 1947).

Article 9 (Exception Relating to Measures Associated with Women Workers)

The provisions of Articles 5 through 8 above shall not prevent employers from taking measures in connection with women workers with the purpose of improving circumstances that impede the securing of equal opportunity and treatment between men and women in employment.

Article 10 (Guidelines).

The Minister of Health, Labour and Welfare shall formulate guidelines that are necessary for the purpose of employers dealing appropriately with the matters provided for in Articles 5 and 6 (referred to as “Guidelines” in the following paragraph).
The provisions of Article 4, paragraphs 4 and 5 shall apply mutatis mutandis to the formulation and amendment of the Guidelines. In the se cases, the phrase “shall consult such deliberative council as shall be provided for by Cabinet Order and request the opinions of the prefectural governors” contained in Article 4, paragraph 4 shall be read as “shall consult such deliberative council as shall be provided for by Cabinet Order.”

Article 11 (Voluntary Settlement of Complaints). Employers shall, when a complaint is submitted by a woman worker concerning a matter stipulated in Articles 6 to 8, endeavor to achieve a voluntary settlement by such means as referring said complaint to a grievance body (which is a body for resolving complaints from the workers of the establishment, composed of representatives of the employer and representatives of the workers of the establishment concerned).

Article 12 (Assistance in the Settlement of Disputes).

The Prefectural Labour Director may, when asked either by a woman worker or an employer (hereinafter referred to as the “Parties Concerned”) or by both of them for assistance to settle a dispute between them in respect of such employers’ measures relating to equal opportunity and treatment between men and women in employment, as provided by ordinance of the Ministry of Health, Labour and Welfare, give any necessary advice or guidance or make any necessary recommendation to the Parties Concerned.
Employers shall not dismiss or otherwise treat a woman worker at a disadvantage by reason of said woman worker requesting the assistance provided for in the preceding paragraph.

Article 13 (Referral for Mediation)

The Prefectural Labour Director shall refer to the Equal Opportunity Mediation Commission for Mediation a dispute provided for in paragraph 1 of the preceding Article (except for a dispute on matters provided for in Article 5) when either one or both of the Parties Concerned apply for Mediation and the Director considers Mediation necessary to settle said dispute.
The provisions of paragraph 2 of the preceding Article shall apply mutatis mutandis to the case in which a woman worker applies for Mediation as provided for in the preceding paragraph.

...

Article 21 (Employment Management Considerations Concerning Problems Caused by Sexual Speech and Behavior in the Workplace)

Employers shall give necessary consideration from the viewpoint of employment management so that women workers they employ do not suffer any disadvantage in their working conditions by reason of said women workers’ responses to sexual speech and behavior in the workplace and their working environments do not suffer any harm due to said sexual speech and behavior.
The Minister of Health, Labour and Welfare shall formulate guidelines with regard to the matters for employers’ consideration based on the provisions of the preceding paragraph (referred to as “Guidelines” in the following paragraph).

...

Comprehensive Promotion of Labour Policies Act ( Act on Comprehensive Promotion of Labor Policies, Stability of Employment of Workers and Enhancement of Occupational Life) => amended in 2019

...

Chapter VIII Measures to Be Taken by Employers in Connection with Problems Arising as a Result of Behavior that Constitutes Bullying in the Workplace

(Measures in Terms of Employment Management)

Article 30-2(1) In order for an employer to preclude any behavior that is based on behavior that constitutes bullying in the workplace which exceeds the scope necessary and reasonable in the course of business from damaging the work environment of the employer's workers, the employer must provide consultation to those workers and take measures necessary in terms of employment management, such as developing a necessary system for appropriately handling such behavior.

(2) It is prohibited for any employer to dismiss any worker, or otherwise treat any worker in a disadvantageous manner, on the grounds that the worker received the consultation referred to in the preceding paragraph or stated facts when cooperating in the employer's response to that consultation.

(3) With respect to measures, etc. that employers should take under the provisions of the preceding two paragraphs, the Minister of Health, Labour and Welfare is to establish guidelines necessary for ensuring the proper and effective implementation of such measures, etc. (hereinafter referred to as the "guidelines" in this Article).

(4)In establishing the guidelines, the Minister of Health, Labour and Welfare is to hear the opinion of the Labor Policy Council in advance.

(5)Upon establishing the guidelines, the Minister of Health, Labour and Welfare is to make those guidelines public without delay.

...

(Responsibilities of the National Government, Employers, and Workers)

Article 30-3(1) The national government must endeavor to take such measures as organizing public relations activities or enlightenment activities to inform employers and the general public that the behavior prescribed in paragraph (1) of the preceding Article as harmful to the work environment of workers is prohibited and to deepen their interest and understanding with respect to problems attributable to that behavior (hereinafter referred to as the "problems of behavior that constitutes bullying").

(2) An employer must endeavor to deepen the interest and understanding of workers employed with respect to the problems of behavior that constitutes bullying, to provide training courses and give due consideration to ensure that those workers pay necessary attention to their behavior toward other workers, as well as cooperate in the national government's implementation of the measures referred to in the preceding paragraph.

(3) An employer (if this employer is a corporation, its officers) must endeavor to deepen the employer's own interest in and understanding of the problems of behavior that constitutes bullying and to pay necessary attention to their own behavior toward workers.

(4) Workers must endeavor to deepen their interest in and understanding of the problems of behavior that constitutes bullying, to pay necessary attention to their behavior toward other workers, and to cooperate in the employer's implementation of the measures referred to in paragraph (1) of the preceding Article.

(Special Provisions concerning Promotion of Resolution of Disputes)

...

(Assistance with Resolution of Disputes)

Article 30-5(1) At the request of both or either of the parties to a dispute referred to in the preceding Article for assistance in the resolution of the dispute, the director of the relevant prefectural labor bureau may give the parties to the dispute necessary advice, guidance, or recommendations.

Advise

If your client sets up a branch office, creates a joint venture company with JSportAI or purchases a 25% equity stake in JSportAI, how should it develop human resources policies for its employees across its business in Japan, the US, Australia, Germany and SIngapore? (Please note that other areas of employment rights -- disability discrimination and whistle-blower protection laws, for example -- follow a similar pattern to those considered in this class.)

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