Vol.39-No.1 January 1,2000
Twenty years have passed since the author wrote on equal employment in this Bulletin in 1979(1). It was more than five years after this before equal employment opportunity legislation was even discussed by the general public in this country.
During the 20 years since 1979, Japan as a nation, and particularly its economy, has changed in many respects. Perhaps the most important changes lie in the impacts of globalization.
Particularly today, the Japanese economy is facing the serious challenges globalization presents. Needless to say, labor and industrial relations are also required to meet global standards. Among many unique features in Japanese labor practices, the unique features of equal employment law and practice provide some of the most intriguing issues of legal, sociological and cultural study.
In this author's view, the uniqueness of the Japanese equal employment law and practice is to some extent related to Japanese culture, and the homogeneous nature of Japanese society. But more important factors are to be found in the uniqueness of the Japanese legal and corporate culture.
Although different traditions and culture in different societies may cause differences of degree, no nation is completely free from prejudice or discrimination. Every nation is more or less biased, and thus discriminates. For instance, U.S. society, today's world champion of anti-discrimination, was very prejudiced and discriminatory at least until the 1960s. Changes in the United States over recent decades have been strongly promoted by law introduced and expanded after 1964.
In this sense, the role of law in Japan is worthy of examination, particularly because Japanese multinationals doing business abroad have been facing many problems with charges of alleged discrimination(2). To avoid such troubles in the global development of Japanese industrial relations, domestic law regulating employer practices in Japan is expected to play an important role. In this paper, the author will first analyze unique aspects of the Japanese Equal Employment Opportunity Law (EEOL) and its amendment in 1997, and then evaluate the impact of this Law.
2.0 The EEOL as a Lame Duck
2.1 Legal Norms Not Meant to be Enforced
First of all, the EEOL was never meant to be effectively enforced. In its original text, the Law prohibited discrimination in termination of employment and in training and welfare, but merely encouraged equal treatment in recruitment, hiring, job assignment and promotion. These encouragement provisions were called doryoku gimu (duty to endeavor). Because of these notorious "endeavor provisions," the Law has been regarded at best as "toothless," at worst a mere joke. However, a more serious deficit in this Law is the total lack of specific compliance-enforcement measures, even for provisions prohibiting discrimination. Very different from Western laws, the 1985 EEOL neither gave power to courts to provide relief through orders to cease and desist, affirmative orders, or punitive damages, nor did it establish any administrative agency to enforce compliance with rules prohibiting discrimination.
The EEOL only established local mediation committees to mediate cases of alleged discrimination. However, under the original law, mediation could start only when the employer accused of discrimination agreed to mediate. The obvious weakness of such a voluntary mediation procedure is exemplified by the fact that only one case of mediation was ever agreed to proceed by an employer during the 10 years following enforcement of the EEOL.
The 1997 Amendment to the Law abolished this requirement of consent to start mediation. However, this change is unlikely to be effective as, needless to say, final settlement by mediation still depends on both parties' consent. As a matter of fact, even the above-mentioned single mediation case was never settled owing to the employer's refusal of the terms of settlement proposed by the Mediation Committee.
Another improvement made by the 1997 Amendment providing for publication of names of companies violating its provisions, along with disclosure of the nature of their offenses might be better than nothing, but it is still far from what is really needed, namely, effective enforcement measures.
2.2 One-sided Nature of the Law
The EEOL is not an equal opportunity law nor an anti-discrimination law in the genuine sense at all, because it deals only with discrimination against women as compared to men. It does not deal with discrimination against men as compared with women. This unbelievable fact is reflected in provisions of the original 1985 EEOL text such as "an employer shall not discriminate against a woman worker as compared with a man by reason of her being a woman" (Arts. 9, 10 and 11), and "an employer shall endeavor to give women equal opportunity with men" (Arts. 7 and 8).
Even more astonishingly, the Women's Bureau of the Ministry of Labour, which is responsible for the enforcement of the EEOL, has taken a stubborn position in its official interpretation of the Law, and has stuck to this one-sidedness. For instance, the Bureau has made it clear in its administrative guidance that the Law is more concerned with discrimination against women than with men in recruitment and hiring, it does not care if men are similarly discriminated against. The Bureau's high-ranking officers have justified this absurd position by their concern to keep certain types of jobs, traditionally dominated by women, exclusive to women(4).
The irony and tragedy of this unique understanding of "equality" as a one-sided advantage reserved for women lies in the fact that it has served to enclose women in less advantageous forms of employment, such as part-time or temporary jobs, which female bureaucrats wanted to keep as an exclusive sanctuary for women.
2.3 Confusing Equality with Protection
The peculiarity of the EEOL described above, which is certainly incomprehensible to Western readers, is a result of confused notions of equality held by both policy makers and supporters for equal opportunity legislation in Japan. The Women's Bureau, which was responsible for drafting the 1985 Law has been, and remains, concerned with protection for women. The Bureau has been in charge of protecting women by, for example, restricting overtime, holiday work and night labor, weightlifting and harmful jobs for women.
The Bureau took the equality issue to be part of protecting women, and never properly understood the fact that equality and protection of women are legal values that are counterpoised. It is quite symbolic that the EEOL was originally introduced as an Amendment to the Working Women Welfare Law of 1972. Thus, the official full title of the EEOL was Law Respecting the Improvement of the Welfare of Women Workers Including the Guarantee of Equal Opportunity and Conditions for Men and Women in the Field of Employment (the name of the Law was changed with the 1997 Amendment, to become the Law Respecting the Guarantee of Equal Opportunity and Conditions for Men and Women in the Field of Employment). Right from the beginning, therefore, equality was regarded as a part of protection, which, in turn, was deemed to "include" equality.
As a result of this confused understanding of equality and protection, the fundamental contradiction between these two values was never understood by women bureaucrats who were in charge of drafting the EEOL. At the same time, women's groups, including female trade unionists who promoted equal employment legislation, strongly advocated keeping full protection for women, even while demanding equality legislation.
Both policy makers and supporters of the legislation categorically refused to admit the inconsistencies inherent in attempting to provide full equal opportunity for women workers who were denied work on an equal basis with men in terms of overtime, holiday and night labor, heavy weightlifting and other dangerous jobs.
In order to make a compromise with employer groups and conservative political leaders who opposed equality legislation, equality and protection became matters of political dealing. Thus, the EEOL was passed as a compromise, some parts dealing with protection of women were omitted on condition that certain protective provisions of the Labour Standards Law were kept. Until the 1997 Amendment, overtime and holiday work by most women workers were restricted, and night labor by women was permitted only for certain job categories. With the exception of maternity protection, these restrictive provisions for women were finally abolished by the 1997 Amendment. However, the mistake caused by confusing protection with equality was repeated again when a special restriction on the limit of overtime for women was introduced tentatively for another three years after the 1997 Amendment came into effect. Thus, complete equal opportunity in overtime work for women was once again postponed as a result of a political compromise at the final stage by promoters of women's causes who are more concerned with the vested interests of women than with complete equality.
2.4 Limited Scope of the Law
Finally, the EEOL deals exclusively with gender discrimination only. The Law was drafted in the early 1980s by the Women's Bureau, mainly to meet Japan's obligations under the UN Convention on Elimination of All Forms of Discrimination against Women. Thus, discrimination on the basis of race, not to mention on the basis of age or handicap, was completely outside of the narrow vision of the policymakers.
Such a narrow vision contributed to confusing equality with protection, two different and opposing values because the neglect of racial discrimination by policy makers meant neglecting the importance of segregation as a form of discrimination. If the policy makers had gender discrimination together with racial discrimination in mind, they might have easily recognized the importance of labor market segregation as a serious form of discrimination against both women and minority groups. Then they might have avoided the mistake of introducing such one-sided anti-discrimination legislation as the EEOL.
This confusing policy has taken away from the potential prestige and persuasive power of the EEOL, and quite obviously has provided a good excuse for opponents to sabotage enforcement of the Law. Employers can comfortably and persuasively argue that there is no reason to treat women, who do not undertake overtime, holiday work, night labor or dangerous jobs on an equal basis, the same as men who do accept such work. Hence, they have good reason to employ women only for less responsible jobs, such as temporary and part-time work.
3.0 Keeping Segregation Intact: The Role of the One-sided Law
As a result of policy makers' neglecting the issue of segregation, the EEOL has been unable to overcome the concentration of women in less advantageous jobs during the years it has been in force.
The percentage of part-time employees among female employees increased from 29.2 percent in 1983 to 39.0 percent in 1998, according to the Report on the Special Survey of the Labour Force Survey conducted by the Management and Coordination Agency (See Table 1). This increase in the percentage of part-time employees among female employees in Japan in recent years is greater than the average for major industrialized countries, except France. The percentage has declined, or stayed on the same level, in most of these countries.
The percentage of temporary workers among female workers has also increased from 15.2 percent in 1985 to 15.7 percent in 1997, when the percent of temporary workers among male workers was only 4.3 percent, according to the Labour Force Survey conducted by the Bureau of Statistics of the Management and Coordination Agency.
The average wage gap between men and women has slightly decreased, but is still much wider than in other major countries. On average, female workers in Japan made 63.1 percent of the average male wages in 1997, up from 59.6 percent of the average male wage in 1985, according to the 1997 Basic Survey on Wage Structure conducted by the Ministry of Labour. The figure is 75.5 percent in the U.S., 74.2 percent in Germany and 80.8 percent in France (ILO, Year Book of Labour Statistics, 1997).
Thus, there is a general consensus among leading labor economists that after some 10 years of enforcement of the EEOL, the Law has brought some improvement in the status of women and conditions of employment, but the effect of the Law has been slow and limited(5). The fundamental disadvantageous status of Japanese women in the macro-level labor market has not remarkably changed.
It is still too early to recognize the full impact of the 1997 Amendment. However, the 1999 Survey on Women Workers' Employment Management conducted by the Ministry of Labour in anticipation of the enforcement of the 1997 Amendment in April, shows some improvement in the human resource management (HRM) policies of some 6,000 companies surveyed in favor of equality. Nonetheless, discriminatory policies, particularly in recruitment, hiring, job assignment and promotion remain essentially unchanged.
Most large companies still separate job openings into two categories: "fast-track" career opportunities for those with anticipated managerial abilities, and non-career openings for all the rest. Of such companies, 53.7 percent employ only men for the first category, while 60.8 percent employ only women for the second category. In job assignment, a substantial number of companies assign men only to important jobs such as eigyo (trading) jobs (37.8% of companies), or kenkyu-kaihatu-sekkei (research-development-planning) jobs (26.6% of companies).
Promotion of women to managerial jobs such as bucho (bureau chief), kacho (department chief) or kakaricho (section chief) is still limited. Only 7.1 percent of bucho, 20.1 percent of kacho and 39.6 percent of kakaricho are women. The percentage of women in bucho and kakaricho positions has even declined since 1995, from 8.4 percent and 42.4 percent, respectively. Thus, it is no wonder the government itself has admitted in its white paper that between 1995 and 1998 Japan registered the least improvement among 10 industrialized nations in terms of women's participation in government and corporate decision-making processes.
4.0 Background to the Japanese Law of Equal Employment
It is obvious that the EEOL has had very little impact in changing Japan's traditional employment structure with its segregated labor markets and job opportunities for men and women, even more than a decade after its implementation.
The traditional employment structure has two aspects. First there is a core labor force (regular employees) under long-term employment arrangements, with strong job security, better working conditions, and other privileges such as company welfare benefits and facilities (so-called life-time employment). The core labor force is occupied exclusively by men with good educational backgrounds. Particularly in larger companies, the core labor force is also dominated by male-monopolized decision-making positions. Second, there is a peripheral labor force (non-regular employees) mostly composed of women, minorities, men with inferior educational backgrounds, the handicapped, employees who failed in their first job, and, more recently, illegal foreign workers.
The traditional male-dominated corporate culture of Japanese companies was established through daily business practices based on long-term personal relationships between subordinates and superiors, and among colleagues. Important decision-making often takes place in an informal way through personal relationships between privileged regular employees. Women are excluded from such decision-making processes not only in terms of formal position, but also in their daily informal personal relationships.
This corporate culture is deeply entrenched in Japanese society today, and is integrated into Japan's political, educational and bureaucratic systems. Thus, the issue of equal employment opportunity is closely connected with the issue of equality in society in general. The Basic Law for a Gender-equal Society recently passed the Diet, and can be expected to deal more broadly with the issue. However, this Law also contains a fatal defect a lack of any specific compliance-enforcement measures. This defect is connected with the Japanese legal culture, which avoids the universalistic approach of Western legal thinking(6). As already mentioned, Japanese bureaucrats always prefer mediation, a way of settlement by compromise, to black-and-white judgments by the courts, or enforcement of legal norms in a universalistic way.
Obviously, the Japanese way of administrative guidance with advice, suggestions, recommendations, consultation and persuasion - including through implication and bestowal of favor and disfavor - could be to some extent effective in implementing a policy goal, as proponents of Japanese administrative guidance have argued. However, such a method of enforcing policy goals very much depends on voluntary compliance by companies, and does not work for those companies unwilling to change long-held prejudices. Even in the case of decent law-abiding companies, it is not easy to change their fundamental employment structure, which has been firmly established during the entire postwar period, and in which discriminatory practices against women and minorities have been firmly integrated.
5.0 Western Criticism and Japanese Response
Some Japanese who read this article may complain that it reflects a completely Western way of thinking. To be sure, what they have read so far is based on a very Western understanding of the role of law in society. All the negative evaluations of the EEOL emphasize the ineffectiveness of the Law, which stems from the fact that it is not enforced through judicial procedures but through administrative guidance. As already discussed, administrative enforcement is carried out mostly by advice, suggestion, consultation, etc. The effectiveness of the EEOL very much depends on voluntary compliance. However, the traditional HRM policies of Japanese companies have been formulated on the basis of a strong concern for labor force efficiency. Furthermore, under the current bleak employment situation in Japan, companies are desperately trying to save labor costs, and their HRM polices are focused on how to promote maximum efficiency with maximum labor force competency. Companies will never provide equal employment opportunity to women (or minorities) as long as they are unable to compete with men on a completely equal footing.
Thus, the most important problem for Japanese women is whether they are qualified to compete with efficient men in a fully-fledged, efficient labor force, in spite of the burdens of child-birth and child-care. This latter handicap may be overcome to some extent by improving child-care and nursing facilities, and promoting equality at home. Therefore, the recent series of government policy initiatives promoting nursing and child-care leave, and the establishment of nursing and child-care facilities in the workplace, are highly appreciated(7). These policy measures are probably the best that Japanese bureaucrats can be expected to achieve in the current climate of economic difficulties.
Introducing such policies to create prerequisites for equal employment in the present social context is more likely to be effective than adopting the Western approach, which teaches through deterrence, punishing violations with exorbitant damage awards.
The difference between Western and Japanese approaches is how to teach the employer. The Western way is to teach by using extreme damage awards, or to correct employer behavior through direct enforcement of certain HRM steps in the name of "affirmative action." The Japanese way is to teach employers via personal contact, and to manipulate their behavior by creating a friendly environment.
The Western approach, which enforces equality through administrative agencies and courts, is certainly effective, since it is able to create equal treatment, and correct employer behavior, either directly through the use of public power, or through deterrence measures such as exorbitant damage awards. However, if we view the U.S. as being typical of such an approach, the series of equal employment legislation over recent decades has contributed substantially to the already serious degree of litigiousness in U.S. society.
For instance, it is pointed out that the number of employment cases filed in the Federal Court jumped from 10,771 to 23,152 between 1992 and 1996 as a result of the Civil Rights Act Amendments of 1991, which added punitive damages and shifted the burden of proof onto employers(8).
One critical observer of the American employment-litigation explosion warns of the heavy burden on American employers as a result of developments in anti-discrimination law and in common law of wrongful discharge after the 1960s. He writes, "As a new body of law grew, virtually every decision employers made became the subject of a potential lawsuit"(9). Among the abuses of lawsuits he describes as extreme examples of absurdity are frequent cases of the law's official encouragement of preferences, numerical goals, and quotas for favored groups, and numerous cases of alleged sexual harassment. Coincidentally, the 1997 Amendment of the EEOL introduced for the first time official endorsement of positive anti-discrimination measures by employers and regulations dealing with sexual harassment. One can only hope that Japan will not follow only the negative aspects of precedents set by the great United States.
|(1)||Tadashi Hanami, "Protection or Equality?", Japan Labor Bulletin vol. 18, no. 12, pp.7-10 (1979).|
|(2)||For an analysis of such charges against Japanese multinationals abroad, see Tadashi Hanami, "Equal Employment Opportunity in Japan: The Crossroad of Japanese Corporate Culture and Legal Culture," in C. Engles and Manfred Weiss, Labour Law and Industrial Relations at the Turn of the Century _ Liber Amicorum in Honor of Prof. Dr. Roger Blanpain, Kluwer, 1998, pp. 769ff.|
|(3)||For a detailed description of the 1997 Amendment, see Takashi Araki, "Recent Legislative Developments in Equal Employment and Harmonization of Work and Family Life in Japan," Japan Labor Bulletin vol. 37, no. 4, pp. 5-10 (1998).|
|(4)||For an early official publication following the introduction of the EEOL by the Women's Bureau, see Ryoko Akamatsu, Shosetsu Danjo Koyo Kintoho Oyobi Kaisei Rodo Kinjunho (Detailed Explanation of the EEOL and the Labour Standards Law), Japan Institute of Labour, Tokyo, 1990, pp. 265ff.|
|(5)||See Sachiko Imada, "Female Labor Force After the Equal Employment Opportunity Law," Japan Labor Bulletin vol. 35, no.8, pp. 5-8 (1996); and Naoki Mitsuya, "Josei Koyo to Danjo Koyo Kikai Kintoho" (Employment of Women and the EEOL), in T. Inoki and Yoshio Higuchi (eds.), Nihon no Koyo Shisutemu to Rodo Shijo (Japanese Employment System and Labor Market), Nihon Keizai Shinbunsha, Tokyo, 1995, pp. 201ff.|
|(6)||The best analysis of the different understandings of the role of law in Japanese and Western society was given by Frank Upham, Law and Social Change in Postwar Japan, Harvard University Press, 1987.|
|(7)||For more details, see Araki, op. cit., supra note 3.|
|(8)||Robert J. Samuelson, "Legal Ambiguity Positions the Workplace," Japan Times, June 28, 1997.|
|(9)||Walter K. Olson, The Excuse Factory: How Employment Law is Paralyzing the American Workplace, The Free Press, 1997, p. 6.|
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