You may be aware that Japan’s #KuToo movement is receiving significant attention on social media. The #KuToo movement is an ongoing movement against the policy of mandatory heels at workplaces and addresses the scourge of workplace harassment.
Unfortunately, workplace harassment of women in Japan is not (historically) uncommon. However, as one can see with the #KuToo movement, Japan is becoming active in fighting against workplace harassment. The legal framework on workplace harassment (along with the continuous review of and amendments to this framework) shows the country’s determination to eliminate workplace harassment and to tackle the problem from a regulatory perspective. Companies operating in Japan should therefore be aware of these new requirements and should be proactive in protecting their employees from harassment.
What is Harassment?
Workplace harassment in Japan is not limited to sexual harassment; rather it has a broader scope. Power harassment, and harassment for pregnancy, childbirth, parental leave and nursing care are crucial workplace problems in Japan.
Although the phenomenon of power harassment does not happen uniquely in Japan, the term of “power harassment” is a Japanese creation and is mainly used within the Japanese society. The Japanese Ministry of Health, Labour and Welfare defines power harassment as giving mental and physical pain to other employees in the same workplace or worsening the workplace environment beyond the proper work range, based on the person's superiority, work position or relationship in the workplace.
More specifically, power harassment include the following types:
- physical attacks (such as assault and injury);
- mental attacks (such as intimidation, defamation and jealousy);
- separation from human relations (such as isolation and neglect);
- excessive demand (such as coercion of unnecessary or impossible work and interruption of work);
- underestimated demand (such as not giving orders or giving low grade works that are far from the employee's ability and experience); and
- individual infringement (such as intervention in private matters).
On the other hand, the definition of sexual harassment is provided under the Law on Securing of Equal Opportunity and Treatment between Men and Women in Employment (雇用の分野における男女の均等な機会及び待遇の確保等に関する法律). According to the Law, sexual harassment means sexual behavior contrary to the intention of the employee in the workplace. When this behavior is refused, the result is a disadvantage such as dismissal, demotion and salary reduction, or a decline in the workplace environment.
The Legal Framework of Harassment Prevention
Currently, harassment prevention and management requirements are separated into several legislations in Japan. For example:
- The Law on Securing of Equal Opportunity and Treatment between Men and Women in Employment stipulates requirements regarding sexual harassment; and
- The Law on the Welfare of Workers who take care of Children or Other Family Members (育児休業、介護休業等育児又は家族介護を行う労働者の福祉に関する法律) focuses more on the harassment for parental leave and nursing care leave.
Japan is still in the process of enhancing such measures. Amendments to a series of existing legislations were made last year (2019), which will be implemented on 1 June this year (2020) (Note: small and middle scale companies are provided a transitional period). The amendments aim to further restrict harassment at the workplace.
Most importantly, the amendments incorporate measures against power harassment into the Law on Comprehensive Promotion of Labour Measures, Employment Stability and Improvement of Working Life (労働施策の総合的な推進並びに労働者の雇用の安定及び職業生活の充実等に関する法律). The amended law and its subsidiary and guidance (mentioned below) includes the definition of power harassment and requires employers to take necessary measures to prevent and manage power harassment.
Although the term “power harassment” has existed in Japanese society for years, this is the first time that it appears in Japan’s legislations, which means the legislative regulation of power harassment will be officially in effect starting 1 June 2020. As a result, the Law on Comprehensive Promotion of Labour Measures, Employment Stability and Improvement of Working Life will also join the club of “legal framework of harassment prevention”.
In order to facilitate employers in implementing the amendments, a Guidance on Measures to be Taken by Employers regarding Power Harassment Management at the Workplace (事業主が職場における優越的な関係を背景とした言動に起因する問題に関して雇用管理上講ずべき措置等についての指針) was published under the Law on Comprehensive Promotion of Labour Measures, Employment Stability and Improvement of Working Life.
In addition to the changes to power harassment, the amendments further clarify the responsibilities and obligations of employers with regard to sexual harassment as well as harassment for pregnancy, childbirth, parental leave and nursing care leave under the other existing legislations (#1 and #2 on the list above).
Are these Mandatory Requirements?
The amendments either impose mandatory requirements on employers or encourage employers to take voluntary measures. For example, employers are required to establish a necessary system to prevent power harassment in accordance with the results of employee consultation. Employers must also not create a disadvantageous work environment for employees who cooperate with the harassment consultations (e.g. dismiss employees who cooperated). Voluntary measures are, for example, encouraging employers to pay necessary attention to the employee who is conducting (or is likely conducting) harassment.
What Should Companies Expect Next?
The amendments are forward progress, and they seem to be a big step in the right direction. However, the amendments give employers much discretion regarding how to implement the prescribed measures.
Under the context of Japanese tradition, which is deeply rooted in the concept of “男尊女卑” (the domination of men over women), the effectiveness of such amendments remains unknown. While the amendments will certainly bring the harassment issue to employers’ attention, it is a long and slow progress from “attention” to actual “implementation,” especially where implementation measures are voluntary.
On the other hand, these amendments do indicate Japan’s intention to continuously reinforce harassment prevention and management via legislative methods. Depending on the implementation status of these amendments, more stringent requirements may be imposed on employers and voluntary measures may eventually become mandatory requirements.
Employers should be aware that, as harassment at the workplace becomes more and more common - not only in Japan but also world widely – there is a global trend toward stricter regulation at the workplace. Employers should take measures in accordance with the abovementioned amendments and guidance so that they may eliminate harassment at their workplace. In addition, employers should consult the Ministry of Health, Labour and Welfare for any relevant question or new regulatory development.