Advice from Japan’s Law Against Power Harassment
In October 2019, a shocking video of senior elementary school teachers forcefully holding a junior colleague in the school and making him eat painfully spicy curry attracted a great deal of negative attention in Japan and spread widely around the internet. Workplace bullying or abuse, as in that case, is called “power harassment” in Japan. This problem can be a significant threat to workers’ efficiency and morale, and the numbers in Japan are large. According to a survey conducted by Japan’s Ministry of Health, Labor, and Welfare in 2016, almost one in three respondents said they had been subjected to power harassment within the past three years (32.5%), and the number of consultations related to bullying and harassment at prefectural labor bureaus exceeded 80,000 in 2018 (a record number).
HAZARDS AND OPPORTUNITIES
Despite the seriousness of the problem, unlike sexual harassment and discrimination based on pregnancy, for example, for many years there has been no law clearly defining what constitutes power harassment or requiring employers to take preventative measures. This power harassment gap has now been addressed by 2019 law revisions (amendments No. 24/2019 to the employment measures law no. 132/1966). Recommendations to tackle power harassment became obligatory from June 1, 2020 for large employers and will take effect from April 1, 2022 for small and medium-sized employers (as defined in the revised law).
Even after implementation, failure to abide by the law revisions will only ever carry light consequences. (Penalties may start with guidance, advice and recommendations by the authorities, reporting requirements on an employer’s efforts to fulfill the requirements, small but potentially symbolic fines, and public announcement and potential shaming of the employer, which should not be overlooked, given the public attention surrounding this issue.)
However, the law revisions do provide an opportunity for employers to deal with the underlying threat from power harassment itself by clearly defining for employees what should constitute an abuse of power and responsibility in the workplace.
BASIC RULES OF THE LAW AGAINST POWER HARASSMENT
The law revisions define “power harassment” broadly (from Art. 30-3(1) of the revised law). Power harassment is behavior with three necessary characteristics:
(A) the behavior is from an actor (or actors) with power over the target of the behavior in a workplace, (not only superiors may be powerful actors but also colleagues or subordinates who wield power through their numbers or through control of essential knowledge/experience);
(B) the behavior is beyond what is necessary and reasonable for the conduct of the business; and
(C) the behavior is (or would ordinarily be) harmful to the working life of the target of the behavior.
This definition requires a comprehensive look at a wide variety of factors in the context of each business.
Under the law revisions, employers are specifically required to establish an internal system for receiving employee complaints and counseling the complainants, with internal company protections for employees who participate in that system. Subsequent Ministerial Guidelines related to these measures provided six types of power harassment that form the starting point for behavior clearly not “necessary” or “reasonable” for the conduct of any company’s business: (1) physical aggression – assault or injury, (2) psychological aggression – threats, defamation, insults, and abusive language, (3) workplace isolation – exclusion or disregard, (4) unwarranted demands – ordering work that is obviously impossible or unnecessary in the course of business, (5) underemployment – providing a level of work far lower than an employee’s ability or experience, and (6) personal violations – excessive personal intrusion. Employers need to customize their internal power harassment guidelines to what is “necessary” and “reasonable” for conducting their own business, but also in light of evolving legal decisions and public consciousness in this area.
ADDITIONAL RULES FROM CONTEXT & SOCIAL CONSCIOUSNESS
Since the six types of power harassment provided by the Ministerial Guidelines are only broad examples, other types of behavior may also constitute power harassment, especially in the context of particular work environments. For example, a recent social movement in Japan called #KuToo (a play on the Japanese words for pain and shoes, kutsuu and kutsu, mixed with the American #MeToo) has been challenging the duty of women to wear high heels and pumps in the workplace. Requiring an employee to follow a particular dress code may be power harassment if it fits the three characteristics of power harassment (i.e., (A) from a powerful actor or group of actors, (B) unnecessary/unreasonable, and (C) harmful to the target’s work life). As another example, employers need to be careful to ensure that power harassment does not occur even when working from home. Telecommuting may increase the likelihood of certain kinds of aggression because instructions from supervisors to subordinates are often given over the phone, out of sight of others. Other unique behaviors may arise, such as superiors requiring subordinates to be on camera at all times in order to constantly supervise; the application of the law revisions in such cases perhaps being unclear. Again, employers need to look to factors within their own business and consider whether such potential behavior may be unreasonable or harmful in context.
MEASURES FROM THE MINISTERIAL POWER HARASSMENT GUIDELINES
For employers’ reference, these are the guidelines for the measures required to be taken by employers, as provided by the Minister of Health, Labor, and Welfare.
I. Power harassment within company guidelines
1. Detailed information about power harassment and guidelines prohibiting and preventing power harassment should be widely taught to company workers, including managers and supervisors. For example, such teachings should be in employment regulations, on the company’s website, and in company training programs.
2. Affirmations and explanations of how power harassment in the workplace will be dealt with severely should be clear in employment regulations, guidelines, and other channels.
II. Receiving power harassment complaints
1. Establish a contact point for consultation and make it known to employees.
2. The person in charge of the contact point for consultations should respond appropriately to the consultation. For example, consideration should be given to the mental and physical condition of the counselled, taking into account that there may be cases in which victims hesitate to follow through with counseling due to being in a debilitated mental or physical state.
III. Responses to power harassment complaints
1. Appropriate and accurate identification of what happened. For example, consideration should be given to participants’ mental and physical condition and awareness of power harassment.
2. Prompt and appropriate measures for victims of power harassment. For example, help to improve the relationship between the victim and the offender or reassign the one or the other to separate the victim from the offender.
3. Proper measures against an offender. For example, take necessary disciplinary and other measures against the offender in accordance with internal guidelines.
4. Measures to prevent recidivism. For example, raising an employee’s awareness of internal policies and consequences.
IV. Other measures
1. Measures to protect the privacy of the victim, offender, and others involved, and make those measures known to the workers. Privacy shields should cover sensitive personal information such as sexual orientation, gender identity, medical history, etc.
2. Ensure that workers are not dismissed or otherwise treated disadvantageously as a result of consultations for alleged power harassment. Stipulate such in internal power harassment guidelines and make workers are fully aware.
If you have questions about this topic, please contact any of the authors directly or our firm’s Labor and Employment Practice Group through the contact information available on our firm’s website.
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