JILPT Research Report No.216
Laws and Practices regarding Harassment—European and the United States Perspective

March 31, 2022

Summary

Research Objective

Workplace bullying (known as “power harassment” in Japan) prevention measures have been stipulated in the Act on Comprehensively Advancing Labor Measures, and Stabilizing the Employment of Workers, and Enriching Workers' Vocational Lives in 2019 in Japan. The ILO’s Convention concerning the Elimination of Violence and Harassment in the World of Work (No. 190) was adopted in the same year. Given the growing concern about workplace bullying at various levels, and expecting vigorous debates and discussions about Japan's harassment legislation, the Japan Institute for Labour Policy and Training (JILPT) has conducted the commissioned research pertaining to workplace bullying and mobbing in other countries in order to gain a sufficient understanding of their legal systems to serve as reference for those discussions.

Research Method

Literature review, working group meetings

Key Findings

The United Kingdom, the United States, Germany, and France (hereinafter, refers to as “the four countries) are comparable at each state level, and the findings are as follows:

1. Each country has implemented legislation specifically outlawing bullying at work. Following is an overview of the situations of each country. Overall, France has specific and detailed provisions prohibiting moral harassment in labor laws. The United Kingdom has statutes concerning harassment as general laws, and Germany has statutes for cases with specific reasons. The United States has provisions for discriminatory harassment. (However, this research is only an overview of enacted laws related to harassment.) In this way, it seems that France has regulations in place for harassment in the workplace; each country has its general laws, doctrines, and theories. Thus, it is difficult to make a simple comparison and single any one country out as having the most stringent regulations.
2. The most comprehensive and broadest definition, namely, the concept of harassment, can be indicated under the Protection from Harassment Act 1997 of the United Kingdom (PHA: Protection from Harassment Act 1997). Behind this, allegedly stands the consideration that "a broad range of conduct cannot be defined" or "cannot easily be made a requirement" for harassment. On the other hand, the definition in Section 26 (1) of the UK's Equality Act 2010 (EA 2010: Equality Act 2010) has protected characteristics of age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation at its core. Such an idea can be pointed out as similar to Section 3 (3) of the German General Equal Treatment Act (AGG: Allgemeines Gleichbehandlungsgesetz) (the wording of the provision itself is similar). The similarity can be attributed to the fact that both legislations are established on the European Directive background. The following three points can be specified as common to some extent in the definition or the concept of harassment in each country. The first point is that a certain degree of continuity or repetition is required. Secondly, the consequences that victims experience, such as deterioration of the work environment, are also common. Infringement of dignity is focused as well.
3. In each country, not only employees, workers but also job seekers and persons notified of tentative hiring decisions are protected under a particular framework. The response to harassment by a third party or customer varies from country to country. With regard to harassment committed by third parties, where a provision previously existed in the UK laws, it has now been removed (although a new provision will likely be established in the future). In the United States, even in certain cases, employers are liable for damages. In France, the perpetrator may include the customer.
4. In each country, courts are basically the primary means of resolving disputes and ensuring performance. Administrative agencies in each country also play the same roles with a court in various ways.
5. The lack of primary data on the effectiveness of regulations in each country makes it difficult to gain real situations. Though each country is attempting to regulate harassment in multifaceted approaches, the extent of their effectiveness does not explicitly cover all the abuses inflicted on victims of harassment.
6. In each country, a variety of issues have arisen. In the United Kingdom, labor unions and other bodies have demanded to develop a new statute specifically covering harassment in the workplace in the discipline of labor (employment) laws, but this has yet to be realized. In the United States, victims are under a number of different laws, and those laws do not explicitly deal with workplace bullying. This makes the regulations ineffective. In Germany, the difficulty of remedying mobbing (a concept similar to power harassment in Japan) through judicial proceedings has led to a situation in which other means are being sought. Even in France, whereas it has defined and detailed articles in the discipline of labor laws, the situation has not been solved. Various debates have arisen over its interpretation, indicating that creating the articles is only one of the steps.

Policy Implications

1. The legal approaches that regulate harassment related to specific protected characteristics or protected attributes are adopted in the UK, the US, and German statutes. Such a legal approach can be a positive step for certain implications because it clarifies what characteristics should be protected and makes it easier to recognize which characteristics of harassment would be regulated.
2. In the case of the above-mentioned legal approach, i.e., the approach to regulate harassment related to certain predetermined protected characteristics or protected attributes, the concept of harassment is constructed as (i) related to the protected characteristics, (ii) infringing the dignity of the victim, and (iii) creating a certain environment that is unfavorable to the victim. In addition to the legal approach using protective characteristics, each country has various other approaches, but what is unique about the concept of harassment is that it requires a certain degree of continuity or repetition, which is common to a certain extent in each country.
3. Each country has various legal systems in addition to the legal approach of adopting protective characteristics. However, the courts are the primary means of resolving disputes related to harassment, and administrative agencies also play a role in various ways in the four countries. It seems that no country has perfect laws and regulations for harassment. The situation in France, where there is an explicit and detailed articles on harassment in the Labor Code, appears to be fairly well established; however, the presence of the articles themselves has raised various debates over its interpretation, which seems to have caused some confusion. Therefore, preparing articles and establishing legislation is not necessarily direct to solving harassment. The situation in France suggests certain limitations in the legal context. Thus, no clear optimal solution to harassment seems to exist, even if we refer to the legal systems in various countries. However, as each country explores, various legal systems are established, and court cases accumulate in the concept of harassment; furthermore, in the context of requirements theory, this review research could provide more than a few implications. Nevertheless, it seems that harassment in a legal context alone finds it difficult to deal with, and therefore, cooperation with other fields could be the key.

Research Period

FY2020–FY2021

Authors

TAKIHARA Hiromitsu

Researcher, The Japan Institute for Labour Policy and Training

FUJIKI Takashi

Associate Professor, Department of Law, Teikyo University

HARA Takayuki

Lecturer, School of Law, Meiji University

HOSOKAWA Ryo

Professor, Faculty of Law, Aoyama Gakuin University

HAMAGUCHI Keiichiro

Research Director-General, The Japan Institute for Labour Policy and Training

Contents

The full text (in Japanese)（PDF:4.4MB）

Category

Labor laws / Working rules

For Citation

JILPT. 2022. Shogaikoku ni okeru harasumento ni kakaru housei [Laws and practices regarding harassment—European and the United States perspective]. JILPT Research Report no.216. Tokyo: The Japan Institute for Labour Policy and Training.

Related Research

• JILPT Research Material Series No.224, Analysis of Major Court Cases Related to Power Harassment（2020）

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