Written by: Shigenori Matsui
Posted on: December 5, 2019
Sexual discrimination in the workplace in Japan is quite notorious. Sexual harassment in the workplace is also widely reported.  Recently, we had an opportunity to invite professor Masako Kamiya of Gakushuin University to the Centre for Asian Legal Studies to hear her talk on “Sexual Harassment and Japanese Law in International Context” (5 November 2019). Here is my take on sexual harassment in Japan.
The concept of “sexual harassment” simply did not exist in Japan before the 1980s. Following the movement against sexual harassment in the United States, however, a growing number of female workers came to voice their strong concern with sexual harassment in the 1980s. Several sexual harassment lawsuits also attracted wide and strong interest from the general public. In 1997, the Diet, (Japanese national legislature), amended the Equal Employment Opportunity Act, which was enacted in 1972 to provide equal employment opportunity and equal treatment for female workers, to impose moral obligation on employers to prevent sexual harassment against women in the workplaces. And, in 2006, the Diet amended this Act to prohibit all discriminatory treatment against all workers due to sex rather than to prohibit only discrimination against female employees, prohibited the adverse treatment due to the marriage, pregnancy or childbirth of female employee, and further converting the moral obligation against sexual harassment into mandatory legal obligation after extending the coverage to include sexual harassment also against men.
The Ministry of Health, Labor and Welfare, which is tasked with labor relation and workplace regulation, adopted the guideline on sexual harassment in 2006. It further added another guideline on measures to prevent adverse treatment due to pregnancy and childbirth in 2016. The government has advocated the eradication of violence against women, including sexual harassment under the Basic Plan adopted by the Cabinet. Upon the sexual harassment incident by top career bureaucrat in the Ministry of Finance against a female reporter in 2018, the government further intensified its effort to eradicate sexual harassment. The information booklet provided by the Ministry of Health, Labor and Welfare is very informative, telling specifically what kind of sexual conducts or comments could constitute sexual harassment and what kind of measures they need to adopt against sexual harassment. The Ministry of Justice also publishes a pamphlet on sexual harassment. Under the current Shinzo Abe Cabinet, the government is committed to promoting the female participation in the workforce and allowing women to work more comfortably. The treatment of the sexual harassment in the workplace is surely the best subject to evaluate how the government is actually committed to this goal.
Sexual harassment in Japan is defined as adverse treatment of workers due to the workers’ responses to unwanted sexual conducts or comments such as dismissal, demotion or salary decrease and creation of the hostile working environment that led to the serious hurdles for workers to fulfil works and cannot be ignored. Therefore, the Japanese definition of sexual harassment is not much different from the one in the North America and includes quid pro quo type of sexual harassment as well as hostile environment type of sexual harassment. The unwanted sexual comments include question on private sexual life, comment on sexual relationship, disclosure of private sexual matters, and unwanted sexual conducts include the forced sexual relationship, unwanted sexual touching and dissemination of pornography. Some of the conducts might violate the Criminal Code, such as battery, injury, or forced sexual intercourse et al (rape), and some may constitute a tort holding the person who conducted such conducts as well as their employers liable as a tort. Otherwise, sexual harassment is generally regulated by the workplace regulations by the government. The Equal Employment Opportunity Act mandated the employers to adopt sufficient countermeasures against sexual harassment, including measures to prevent such harassment, notification and publication of its anti-sexual harassment policy, measure to respond to complaint, including investigation and procedure to take countermeasures, and the measure to stop such harassment including the possible disciplinary actions.
As a result of these government efforts, sexual harassment is considerably decreased. All of the big companies in Japan have already established the countermeasures, including the complaint/consultation office, investigative body, investigation procedure, and possible disciplinary actions. However, there are still a huge number of sexual harassment incidents in the workplace and everyone knows that sexual harassment is extremely underreported. It is a fair guess, therefore, that there still exists unimaginable numbers of unreported sexual harassment cases the workplace. And sadly, many smaller companies are not still well-equipped with countermeasures against sexual harassment.
Women have been pushing forward for further revisions and proactive government countermeasures. Right now, the regulation on sexual harassment in Japan is a merely a legal obligation on the employers to be enforced by the government regulators. The sanction against the employers who failed to adopt sufficient countermeasures only include the publication of the name of the companies who failed to obey the government recommendation. In the Japanese society, this is a tremendous sanction but it is still doubtful whether mere publication is sufficient enough. Many women called for bans on sexual harassment. But, in light of the broad scope of the definition of sexual harassment and the significantly different degree of insult or damages, it is probably difficult to impose a flat criminal ban on sexual harassment. International communities have been calling for a partial criminal ban focusing on more serious cases. Yet, there is already a criminal punishment on major serious sexual harassment conducts and it might be questionable whether the additional criminal punishment on sexual harassment only applicable to workplace is actually necessary.
More promising would be a statutory ban on such sexual harassment and the creation of statutory tort action against the superiors or fellow co-workers for sexual harassment and also vicarious liability of the employers plus hefty statutory damages obligation against employers that failed to adopt sufficient countermeasures or failed to respond adequately to the sexual harassment complaint. In Japan, the government has been reluctant to create such statutory causes of action or impose hefty sanctions against disobedient employers. They are concerned with the economic impact such causes of action might trigger, and the impact of allowing the judicial courts to enforce the statute rather than the agency is surely understandable. But, in light of the pervasive persistence of sexual harassment and serious impacts on female workers, this surely makes much sense. This would be a total game changer since right now the regulatory agency is extremely shy in legally enforcing the Equal Employment Opportunity Act.
Moreover, the government would probably have to redefine the definition of sexual harassment. In recent years, female workers have been complaining about the discriminatory employment practices mandating only female workers to wear uniforms (often tight skirts and/or revealing outfits), prohibiting them to wear eyeglass, forcing them to wear pumps or high heels and to dress-up nicely (obligation of make-up, ban on use of vivid and colorful hair dye, mandate to dye hairs black, or bundle-up of long hairs). These rules are forcing female workers to look nice, feminine, or sexy, and invite or promote sexual harassment by superiors and co-workers as well as client/customer/third-party. The government takes the position that such practices could be justifiable if there is a business necessity and is reasonable. It is utterly unthinkable any such legitimate reasons could exist only to force women to look like nice, let alone feminine or sexy. The government should better ban all such discriminatory practices as sexual harassment or at least practically prohibit them unless the employers can come up with compelling reasons, which would be extremely difficult.
The traditional definition and countermeasures against sexual harassment also used to be focusing on sexual harassment by superior or co-workers and it is questionable whether the countermeasures prepared are sufficient to cope with sexual harassment by client/customers/third-party. Workplace surely include the workplace outside of the company office and the sexual harassment includes harassment by client/customer/third-party on the job. As a result, the employer has a legal obligation to prevent such sexual harassment and to respond adequately to the complaint of the workers. But the employer cannot impose disciplinary actions against client/customer/third-party and there is a limit on what the employer can do. Therefore, the necessary countermeasures against sexual harassment needs to be tailored to protect workers from client/customer/third-party as well.
The government attitude toward transgender worker is also somewhat ambiguous right now. In Japan, so long as your family registry indicates that you are a man, then you are legally a man. But in the social life, an increasing number of people have come to change sex and are calling for a ban on discrimination against such transgender people. Whether such mistreatment against transgender people should be counted as a sexual harassment is rather ambiguous. Sexual harassment could be found also in the harassment against male employees. Unlike typical sexual harassment, which is a harassment due to being a woman or man, harassment against transgender people is a harassment because they are transgender. But this is also a harassment rooted in the sexuality of the employees. Therefore, even under the current Equal Employment Opportunity Act, such harassment needs to be prevented. Otherwise, the new provision should be added to include harassment against transgender worker as a sexual harassment.
Moreover, Japan has reluctant to support the adoption of the ILO’s Violence and Harassment Convention, 2019, which called for the enactment on a ban on violence and harassment in the workplaces, but in the end, the Japanese government came to support it. Yet, it has not ratified it yet. Japan still doesn’t have a legal ban on sexual harassment and the business communities have been opposing to any such attempt to introduce a legal ban. It looks like the government does not have any immediate plan of introducing a legal ban. The government therefore needs to work hard to persuade the business communities of the necessity of legal ban and ratify the convention as soon as possible.
In June 2019, the Diet further amended the Equal Employment Opportunity Act by clarifying the responsibility of the government and the employers, further mandating the employers to prevent any adverse actions including dismissal against the employee who filed a sexual harassment complaint or consultation request, and mandating the employers to take necessary care such as employee training to prevent sexual harassment. Moreover, the amendment imposed moral obligation on employees as well to avoid sexual harassment. These are good steps but definitely not the final step because there still exist so many loopholes and ambiguities, let alone the almost non-existence of mandatory enforcement. The Japanese government definitely needs to intensify further its effort to eradicate sexual harassment in the workplace if it really wants to promote women to participate in the workforce and to make them work much more comfortably.
Finally, in recent years, sexual harassment complaints are not limited to workplace against workers. Some of the job seekers are now complaining about the sexual harassment during the job interview and after-hour dinner by interviewer. Athletes are also complaining about the sexual harassment by their coaches. The former case could be covered by the regulation on sexual harassment since the conducts or comments at issue are made by employees to job candidates. But the latter case might fall outside the scope of traditional sexual harassment if the coach was privately asked to provide training or supervision. Moreover, in both cases, the victims are not employees or workers. As a result, unless such conducts or comments at issue could constitute a criminal offense or tort, there may not exist any government regulations right now. Even when such conducts or comments could be partially covered by the traditional regulation, in either case, the previous countermeasures would probably be insufficient. Therefore, the government will have to consider the introduction of anti-sexual harassment measures against all sorts of sexual harassment outside of the workplace as well.
This issue would raise a much broader question of whether there should be a general civil rights legislation or human rights legislation which protects the equality right, especially sexual equality right, in the private sphere. Right now, Japan does not have any such legislation. Japan also does not have a general statute prohibiting unreasonable discrimination, including sexual discrimination, in the private sphere. It surely is a good time to reconsider this absence more critically and enact the civil rights legislation or human rights legislation which protects the equality right, including sexual equality right, in the social life and prohibits unreasonable discrimination such as sexual discrimination in society as well. If such legislation were enacted, then, sexual harassment would be an infringement of such sexual equality rights and would be regarded as illegal sexual discrimination.
 US Department of Justice, Country Reports on Human Rights Practices for 2018: Japan, 14-15, https://www.justice.gov/eoir/page/file/1145026/download ; Yuki W. P. Huen, Workplace Sexual Harassment in Japan: A Review of Combating Measures Taken, 47 :5 Asian Survey 811 (2007).
 Fukuoka chihō saibansho [Fukuoka District Court], 16 April 1992, 1426 Hanreijihō 49; Yukiko Tsunoda & Muro Mariko Yokokawa, Sexual Harassment in Japan: Recent Legal Decisions, 5 U.S.-Japan Women’s Journal 52 (1993).
 Koyo no bun-ya niokeru danjo no kintouna kikai oyobi taigu no kakuhotō ni kansuru hōritsu [Act to Secure the Equal Employment Opportunity and Treatment for Men and Women], law no. 113 of 1972 (hereinafter cited as Equal Employment Opportunity Act).
 Koyo no bun-ya niokeru danjo no kintouna kikai oyobi taigu no kakuhotō ni kansuru hōritsu oyobi Roudou kijunhō no ichibu wo kaiseisuru hōritsu [Act to Amend Parts of the Act to Secure the Equal Employment Opportunity and Treatment for Men and Women and the Labor Standard Act], law no. 82 of 2006.
 Jugyonushi ga shokuba niokeru seitekina gendō ni ki-insuru mondai ni kanshite koyō kanrijō kouzubeki sochi nitsuiteno shishin [Guideline on Measures to be Adopted for Labor Issues Caused by Sexual Harassment in the Workplaces], Ministry of Health, Labor and Welfare notification no. 615 of 2006 (hereinafter cited as Guideline), https://www.mhlw.go.jp/file/06-Seisakujouhou-11900000-Koyoukintoujidoukateikyoku/0000133451.pdf .
 Jigyonushi ga shokuba niokeru ninshin/shussantō nikansuru gendō ni ki-insuru mondai nikanshite koyō kanrijō kouzubeki sochi nitsuiteno shishin [Guideline on Measures to be Adopted for Labor Issues Caused by Sexual Harassment due to Pregnancy and Childbirth], Ministry of Health, Labor and Welfare notification no. 312 of 2016, https://www.mhlw.go.jp/file/06-Seisakujouhou-11900000-Koyoukintoujidoukateikyoku/0000132960.pdf .
 Dai4ji danjo kyodou sankaku kihon keikaku [4th Gender Equality Basic Plan] (Cabinet decision, 25 December 2015), http://www.gender.go.jp/about_danjo/basic_plans/4th/index.html (hereinafter cited as Basic Plan).
 Top Japanese finance bureaucrat resigns amid sexual harassment allegations, Reuters (18 April 2018), https://www.reuters.com/article/us-japan-politics-finance-sexualharassme/top-japanese-finance-bureaucrat-resigns-amid-sexual-harassment-allegations-idUSKBN1HP14T. This is a sexual harassment by client/customer/third-party and was a bit different from classic example of sexual harassment.
 Ministry of Health, Labor, and Welfare, Shokuba niokeru harassment taisaku manual [Countermeasure Manuals against Harassment in Workplace], https://www.mhlw.go.jp/file/06-Seisakujouhou-11900000-Koyoukintoujidoukateikyoku/0000181888.pdf (hereinafter cited as Manual).
 Ministry of Justice, Sexual Harassment (2010), http://www.moj.go.jp/jinkennet/asahikawa/sekuhara.pdf.
 Address by Prime Minister Shinzo Abe, at the 68th Session of the General Assembly of the United Nations ( 26 September 2013), https://www.japan.go.jp/tomodachi/2013/winter2013/un.html (“Creating an environment in which women find it comfortable to work and enhancing opportunities for women to work and to be active in society is no longer a matter of choice for Japan. It is instead a matter of the greatest urgency. Declaring my intention to create “a society in which women shine,” I have been working to change Japan’s domestic structures.”).
 Guideline, supra note 6.
 As of 2017, 65.4% of all companies already established various anti-sexual harassment countermeasures overall (this was an 7.2% increase from the previous year) but all big companies employing more than 5,000 employees already established ones. Danjo kyodo sankaku kyoku [Cabinet Office, Gender Equality Bureau], Sexual harassment taisaku no genjō to kadai [Current Status of Anti-Sexual Harassment Countermeasures and Its Agenda], (April 2019), http://www.gender.go.jp/kaigi/senmon/boryoku/houkoku/pdf/honbun_hbo09.pdf , at 7-8.
 There were 21,050 complaint or consultation request under the Equal Employment Opportunity Act in 2018 and 7,526 of them were concerned about the sexual harassment and additional 5,933 complaint/consultation requests were concerned with adverse conducts related to marriage, pregnancy or childbirth. Danjo kyodo sankaku shitsu [Cabinet Office Gender Equality Bureau], Heisei30nenban danjo kyodo sankaku hakusho [2018 Whitepaper], http://www.gender.go.jp/about_danjo/whitepaper/h30/zentai/pdf/h30_genjo.pdf at 112.
 The government can request a report from employers or issue an advice, warning or recommendation and could publish the names of the employers who have not accepted recommendation against sexual harassment. Equal Employment Opportunity Act, supra note 4, art 29 & 30.
 Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Japan, adopted by the Committee at its fiftieth session (29 April-17 May 2013), Economic and Social Council, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW2SOasN7qHTm%2bOfgy3JbyuUSO16grE%2fb1KEi4wGrbvO7RY%2bInr5kPpMTpXHwqyhaNWHy3JTsXE7jhaozx8wx4JA0mdzi6ZeTd0lleYKLyYr1 (urging Japan to introduce in its legislation an offence of sexual harassment , in particular in the workplace, which carries sanctions proportionate to the severity of the offence).
 In 2018, there were 7,639 complains/consultation request with respect to sexual harassment, and the regulatory agency issued warning in 4,953 cases. Ministry of Health, Labor and Welfare, Heisei30nendo todouhuken roudoukyoku koyou kankyo/kintōbu (shitus) deno ho shikkoujoukyo [2018 Enforcement Report], https://www.mhlw.go.jp/content/11900000/000521502.pdf. There is no report on the number of recommendation or publication, but apparently there is no case of publication so far.
 Malcolm Foster, #KuToo no more! Japanese women take stand against high heels, Reuters (3 June 2019), https://www.reuters.com/article/us-japan-women-high-heels/kutoo-no-more-japanese-women-take-stand-against-high-heels-idUSKCN1T50G5 ; Maya Oppenheim, Japanese companies’ ban women wearing glasses’, Independent (8 November 2019), https://www.independent.co.uk/news/world/asia/japan-women-glasses-ban-twitter-anger-a9194826.html . #KuToo is a slogan, following #MeToo, indicating the shoes and pain at the same time.
 Asahi Shimbun, Shokuba de high heels kyousei, gyoumujou hituyounara: Kouseishou ga younin [Forcing Women to Wear High Heels in the Workplace Permissible if It Is Necessary for Business: Health Minister Approved] (5 June 2019), https://www.asahi.com/articles/ASM6566MNM65ULFA04B.html (statement of Health, Labor and Welfare Minister Takumi Nemoto).
 Manual, supra note 10, at 9.
 When the employer, TV Asahi, one of the major television stations in Japan, was informed of the sexual harassment by the top bureaucrat in the Ministry of Finance from its reporter, supra note 9, TV Asahi refuse to report on the sexual harassment and didn’t act quickly and as a result, TV Asahi faced fierce criticisms. It was only when a reporter published the story on one of the weekly magazines that TV Asahi was forced send an official protest.
 The government at least made clear that the adverse action due to sexual orientation or perceived sexual identity can constitute a sexual harassment. Manual, supra note 10, at 9.
 ILO, C190 Violence and Harassment Convention, 2019, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190 .
 Josei no shokugyo seikatsu niokeru katsuyaku no suishin nikansuru hōritsutō no ichibu wo kaiseisuru hōritsu [Act to Amend Parts of the Act concerning Promotion of the Advancement of Women in the Workforce and Others], law no. 24 of 2019 (revising the Equal Employment Opportunity Act) (hereinafter cited as 2019 amendment); Japan beefs up measures against workplace harassment, Kyodo News (29 May 2019), https://english.kyodonews.net/news/2019/05/63396d2a82a0-japan-beefs-up-measures-against-workplace-harassment.html
 In recent years, the government has been attempting to eradicate so-called “power harassment” in addition to sexual harassment: harassment taking advantage of the superior power-relationship against inferior workers. Roudou seisaku no sougouteki na suishin narabini roudousha no koyō no antei oyobi shokugyou seikatsu no jujitsutō nikansuru hōritsu [Act on Comprehensive Promotion of Labor Policy and Stabilization of Employment and Realization of Work Life of Employees], law no. 132 of 1966, art. 30-2 (added by 2019 amendment, supra note 26).
 Kousai aite no umu kikare: Shuukatsu sekuhara higai joshi gakuseira taisaku uttae [We Were Asked about Whether We Have Boyfriends: Female Students Seeking Job Came Forward with Complaints Requesting Countermeasures], Mainichi Shinbun (2 Dec. 2019), https://www.excite.co.jp/news/article/Mainichi_20191202k0000m040295000c/ .
 Sekuhara moto coach wo 2nenkan shikaku teishi: Nihon sports kyokai [Former Coach Disqualified for Two Years Due to Sexual Harassment: Japan Sports Association], jiji.com (17 July 2019), . https://www.jiji.com/jc/article?k=2019071701296&g=spo .