Sexual Harassment and Mobbing in the Workplace in Japan Yoko Hashimoto Prof. of Law, Gakushuin University, Tokyo 20000876@gakushuin.ac.

jp Introduction In Japan sexual harassment was acknowledged by the court for the first time in 19921. Since then, there have been many cases related to this problem, while mobbing has also been recently discussed as a legal issue. Sexual harassment and mobbing are distinguished clearly by the notions2, but it is difficult to recognize the difference, if the victim is female and the assaulter male. However, cases of sexual harassment and mobbing in the workplace are principally treated legally as a tort or a breach of an employment contract; hence, it is unnecessary to distinguish them strictly. Statistics on the administrative procedures for individual disputes also do not distinguish between mobbing and sexual harassment. In cases of mental illness, that may be caused by such harassment, employees may be compensated with Workers Accident Insurance. Sexual Harassment 1. Sexual Harassment Regulations 1.1 Law on Equal Employment Opportunity for Men and Women The Japanese Equal Employment Opportunity Law (EEOL) 3 provides that an employer should pay due attention in personnel management to see that a womans reaction to sexual speech or conduct in the workplace does not detrimentally affect her terms and conditions of employment or her working environment (Art. 11 of EEOL). Therefore, the employer has a duty to care to prevent sexual harassment in the workplace, be it quid pro quo or through permitting a hostile working environment. This provision was introduced by the 1997 EEOL (at that time Art. 21 of EEOL), and since then businesses have taken preventive measures (e.g. in-house training) and established an internal investigation and conciliation system. The EEOL also provides for an administrative complaint procedure. Art. 16 of the EEOL refers to the Individual Labor Disputes Solution Law 4 , by which an The Fukuoka Sexual Harassment case, Fukuoka District Court (Apr. 16, 1992) 607 Rhan 6. 2 Under the term mobbing, mobbing by a boss is termed power harassment and mobbing by a teacher is termed academic harassment. 3 Danjo Koy Kikai Kint H . 4 Kobetsu Rd Huns Syori H. This administrative procedure treats a huge volume
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administrative conciliation body or a chief of the Labor Bureau (rd kyoku) handles the workers complaints. The administrative conciliation procedure for sexual harassment was introduced for the first time in the 1985 EEOL. Then this special procedure is now implemented under the Individual Labor Disputes Solution Law, which was enacted in 2000, and integrated into the general administrative individual labor solution system. 1.2 Types of Sexual Harassment As Art. 11 of the EEOL provides, sexual harassment is classified into the types of quid pro quo sexual harassment and hostile working environment. Guidelines on sexual harassment from the Ministry of Labor and Welfare5 provides a detailed description about what conduct or speech should be classified as quid pro quo sexual harassment and a hostile working environment. This classification follows the American definitions. In Japan, most cases are classified as a hostile working environment, because in Japanese business firms the immediate superior has no power to determine the status of his subordinates, and such authority is left to the personnel department alone. Therefore quid pro quo sexual harassment rarely occurs6. In these cases, for example such conducts as follows is acknowledged as illegal sexual harassment: making obscene jokes and touching inappropriately7, spreading rumors about the plaintiff s affairs8, recording the activities in a female locker room secretly with a video camera9 and so on . 1.3 Judicial Remedy for Sexual Harassment10 Under Japans Civil Code, sexual harassment can be defined as an illegal act. Article 709 of the Civil Code provides that a person who unlawfully infringes upon another persons right or legally protected interest is liable for damages. In cases where sexual harassment amounts to defamation, invasion of privacy, assault or battery, it infringes upon legally protected interests and constitutes a tort. Furthermore, sexual harassment can constitute a tort when it violates the victims personal right (jinkaku-ken)11. In 1992 the Fukuoka district court stated in a leading of complaints. In 2010, the total number of complaints was 1,130,234. 5 Nr. 615 of Notice of the Ministry of Labor and Welfare of Oct. 11, 2006. 6 In a small enterprise, where the president of a firm has all the powers over his employees, quid pro quo sexual harassment can occur. 7 The Mie Sexual Harassment case, Tsu District Court (Nov. 5, 1997) 729 Rhan 54 and many other cases. 8 The Fukuoka Sexual Harassment case. 9 The Kyoto Sexual Harassment case, Kyoto District Court (Apr. 17, 1997) 716 Rhan 49. 10 Yamakawa, Personal Rights in the Workplace: The Emerging Law Concerning Sexual Harassment in Japan, Japan Labor Bulleting, Sept. 1997, pp. 5. 11 The notion of the personal right is related to the German Persnlichkeitsrecht. 2

case that harassment by spreading rumors about the plaintiff s sex life infringes on privacy and legally protected interest in working in an environment conducive to working12. The court regards the interest in working in an environment conducive to working as one of personal interests that are protected by tort law. In Japan sexual harassment is discussed in the tort liability as the infringement of the personal rights. In the Mie Sexual Harassment case the court stated that sexual harassment is a breach of the employment contract 13 . Following this case, sexual harassment was discussed not only under tort law, but also under contract law. The difference here are insignificant, because a plaintiff usually claims damage (solatium). However, it is remarkable that the duty of an employer to consider the working environment of his employee (shokuba kanky hairyo gimu) is established as a contractual duty. Mobbing 2.1 Definition of Mobbing There is no legal or official definition of mobbing (ijime) in Japan. The Ministry of Labor and Welfare uses this term without defining it; however there is a universal understanding of this notion in the country. Mobbing has been a severe problem at Japanese schools. Recently it was also recognized in the workplace, especially in the form of mobbing by a superior (power harassment). The number of complaints about mobbing has constantly increased. These complaints constituted 6.4% of all complaints about employment contract that were submitted as claims before labor bureaus in the year 2002. This ratio rose to 16.0% in 201014. These complaints were related to assault, insult, privacy infringement, ignoring an employee and so on15. 2.2 Measures against Mobbing Although no regulation exists that prevents or responds to mobbing, many businesses take measures against mobbing, for example, by establishing an internal complaints procedure, educating their employees or prohibiting such behavior in their code of conduct. A growing number of businesses are taking steps against mobbing, not only to support employees mental health, but also to show their compliance to the policy. Fukuoka District Court (Apr. 16, 1992) 607 Rhan 6. Tsu District Court (Nov. 5, 1997) 729 Rhan 54 14 The Labor Standards Department of the Ministry of Labor and Welfare, About Problem of Mobbing and Harassment in the Workplace, July 11, 2011. ( http://www.mhlw.go.jp/stf/shingi/2r-9852000.) This number includes also the number of complaints about sexual harassment. 15 Ibid.
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At the administrative level, the labor bureaus and municipalities handle mobbing complaints. 2.3 Judicial Remedy of Mobbing 2.3.1 Suicide Case Similar to pursuing a sexual harassment case, a victim of a mobbing can pursue a claim for punitive damages on the grounds of a tort or a breach of contract. There are two well-known cases, in which the victims who suffered from severe mobbing committed suicide. Both victims were young men and were insulted continuously by their senior workplace colleagues. Both judgments admitted a breach of the employer s duty to monitor his employees safety (anzen hairyo gimu) and ordered punitive damages. However, there was a difference between the two judgments. While in the

Kawasaki Suid Kyoku (Kawasaki Waterworks Bureau) case16 the court admitted the
causal relationship between the employer s breach of duty to look after his employees safety and the victims suicide, in the Iryhjin Seisykai (Medical Foundation Seisykai) case17, the court did not admit this causal relationship and ordered punitive damage only for not taking measures against mobbing. This difference arises from the interpretation of damage in Art. 416 of the Civil Code. According to Para. 1 of Art. 416 of the Civil Code normal damages may be awarded, and according to Para 2 of this article, special damage may be awarded, if the harassment was predicted. In mobbing cases, there is a question of whether suicide constitutes normal damage or special damages. For example, in the Kawasaki Suid Kyoku case, the court regarded suicide as constituting normal damages, but in the Iryhjin

Seisykai case, the court regarded it as constituting special damages and requested poof
of the predictability. According to the judgment in the Iryhjin Seisykai case, the employer, which was the hospital, could not have predicted that its employee, a nurse, would suffer from severe mobbing and committed suicide; therefore, the employer was not responsible for the suicide. The responsibility of an employer for the employees suicide is often argued in overwork (karshi) case. In these cases, courts generally regard suicide as constituting normal damages and admit a causal relationship between the employer s breach of the duty to look after his employees safety and the suicide18. On the other hand, in a case of mobbing at a school a court regards the suicide of a student suffering from severe

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Tokyo High Court (March 25, 2003) 849 Rhan 87. Saitama District Court (September 24, 2004) 883 Rhan 38. The Dents case, the Supreme Court (March 24, 2000) 54-3 Minsh 1155. 4

mobbing by his classmates as requiring special damages and restricts the responsibility of the teacher and the school19. Thus, if mobbing in the workplace is considered the same as an overwork case, one can admit the employer s responsibility for the suicide; however, if it is considered the same as mobbing at a school, one cannot easily blame the employer for the suicide. 2.3.2 Other Cases As a power harassment case, the Nihon Fund case20 received much attention. In this case, employees of a consumer loan company suffered from mobbing by their superior. The harasser was one of two general managers and tyrannical against the subordinates. The harasser s actions became more severe, as the another general manager was transferred to another group company. The harasser scolded plaintiff A and forced him to submit a written apology when he did not obey the harasser s instructions. In a meeting the harasser said to plaintiff A, You lack the will to work. You need not come to the company after tomorrow. He insulted other subordinates as well. For example, he said to plaintiff B at lunch Your wife is odd, because she is married to you. He scolded plaintiff C, who had made a mistake, saying, You are a salary thief and forced him to write, I have not worked well, although I get a salary. In the winter he said to plaintiff A, You smell like smoke, and then he directed an electric fan on him every day. Plaintiff A complained about this incident to a labor union of the other group company. The union requested that the company prevent this behavior, and the superior stopped his behavior. Plaintiff A became depressed and took a leave for a month. The District Court admitted the tort liability of the boss and the company as the infringement of a personal right (jinkaku ken). The Court ordered the harasser and the company to pay consolation money and damages of about 960,000 yen (= 1,400 US dollars) to plaintiff A, consolation money of 400,000 yen (= 560 US dollars) to plaintiff C, and consolation money of 100,000 yen (= 140 US dollars) to plaintiff B. Employer s Measures against a Harasser In Japan, disciplinary measures are a customary method of punishing employees for their misconduct21. In order for a company to impose disciplinary measures, however, explicit contractual grounds must exist. Normally work rules have provisions concerning the grounds for and types of disciplinary measures. There is no particular regulation concerning the type of disciplinary measures. Commonly practiced For example, Yokohama District Court (March 28, 2006) 1938 Hanreijih 107. Tokyo Distrikt Court (July 27, 2010) 1016 Rhan 35. 21 Concerning disciplinary measures, s. Araki, Labor and Employment Law in Japan, 2002, 149.
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disciplinary methods are reprimands (kenseki) and warnings (kaikoku), a wage decrease, suspension, demotion and disciplinary discharge. Art. 15 of the 2006 Labor Contract Law provides that an objectively unreasonable or socially unacceptable disciplinary measure is an abuse of an employer s rights, and such a disciplinary measure is null and void. A harasser who participates mobbing should be disciplined. For vicious harassment, the most severe disciplinary measure, namely a disciplinary discharge, can be imposed. In one case22, a general manager of a large computer company, whose headquarters exist in the United States and which has a strong policy supporting ethical conduct, was issued a disciplinary discharge for sexual harassment. The man always touched his secretary on her hand or waste and made obscene jokes. He invited her to dinner and kissed her against her will. He also harassed many other female employees, including a temporary worker who had been sent to the company from a temporary employment agency. The Tokyo District Court held that the disciplinary discharge was valid. The court considered the higher position of the harasser and the seriousness of the conduct. In another case, however, a disciplinary discharge of a branch manager was disqualified as null and void 23 . The manager had made obscene jokes to female employees at banquets and touched them. The court ruled that the disciplinary discharge was too severe as punishment. Harassment against Employees of Other Enterprises Tort law also applies to parties without contractual relations; therefore an employer should be liable if his employees harass employees from other business enterprises, such as temporarily sent to the company. An employer can take disciplinary measures against his employee, when the employee harasses temporarily workers. A court backed a disciplinary discharge issued to an employee for his severe sexual harassment of temporary workers24. In this case, the discharged employee took two temporary workers out drinking and brought them to a hotel. He took them to a bed where he touched and kissed them. The court said that the victims were unable to reject his advances, because he was employed by a client of their temporary employment agency. This judgment is appropriate as it considers the weak position of temporary workers. Coverage of Workers Accident Compensation Insurance

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Tokyo District Court (Jan. 31, 2005) 1891 Hanreijih 156. Tokyo District Court (Apr. 24, 2009) 987 Rhan 48. The Fujitsu Fsas case, Tokyo District Court (Dec. 27, 2010) 1022 Rhan 70. 6

5.1 Statistics Workers Accident Compensation Insurance covers mental illness caused by serious stress in the workplace. The main cause of such stress is overtime work, but sexual harassment and mobbing can also lead to mental and emotional problem. The number of complaints and the approvals of such complaints by the administrative procedure has constantly increased (s. table 1). Table 1: Workers Accident Compensation Insurance as Related Emotional and Mental Problems (source: http://www.mhlw.go.jp/bunya/roudoukijun/rousaihoken04/090316.html) year mental illness number of claims number of decisions number of approvals (approval ratio) suicide number of claims number of decisions number of approvals (approval ratios) (incl. suicides) 2006 819 607 205 (33.8%) 176 156 66 (42.3%) 2007 952 812 268 (33.0%) 164 178 81 (45.5%) 2008 927 862 269 (31.2%) 148 161 66 (41.0%) 2009 1136 852 234 (27.5%) 157 140 63 (45.0%) 2010 1181 1061 308 (29.0%) 171 170 65 (38.2%)

Among these claims and approvals, the number of cases related to sexual harassment and mobbing are presented in Table 2. Table 2: Number of Cases Related to Sexual Harassment and Mobbing (source: http://www.mhlw.go.jp/bunya/roudoukijun/rousaihoken04/090316.html) incident mobbing or assault (suicide) sexual harassment (suicide) number of decisions number of approvals number of decisions number of approvals year 2009 42(2) 16(1) 16(0) 4(0) 2010 58(7) 29(5) 27(0) 8(0)

5.2 Criteria for mental illness covered by Workers Accident Insurance The Ministry of Labor and Welfare lists criteria that define the types of mental illness that should be covered by Workers Accident Insurance25. Based on these criteria, a Nr. 544 of the Notice of the Labor Standards Department of the Ministry of Labor and Welfare of Sept. 14, 1999, revised on April 6, 2009. Mental illness is restricted to
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determination is made as to whether an incident at a workplace caused an employees mental illness or suicide. Such incidents are classified into three grades. A grade incident is not acknowledged as severe enough to cause a mental illness. A grade incident would be acknowledged as the cause of a mental illness, which is covered by Workers Accident Insurance, when another irregular situation is also recognized in the same workplace. A grade incident would usually be acknowledged as severe enough to lead to a mental illness. Sexual harassment is classified as grade , and severe mobbing is classified as grade ; therefore it is difficult for an individual who has a mental illness caused by sexual harassment to receive compensation from Workers Accident Insurance. 5.3 The June 28, 2011 Report of the Ministry of Labor and Welfare Although according to the above criteria sexual harassment is not classified as grade , some decisions have placed sexual harassment in this category and given approval for Workers Accident Insurance Compensation. For example, in one case, the Labor Insurance Objection Committee (rd hoken huhuku sinsakai) canceled a decision of the Labor Bureau and allowed for compensation from Workers Accident Insurance26. In this case, the victim, who was working at a sewing factory, had been touched on her breasts and hips by her superior and other male colleagues for about three years. She could not register a complaint against anyone regarding this behavior. She fall maladjustment. While the Labor Bureau classified this act of sexual harassment as grade, the Labor Insurance Objection Committee classified it as grade , because the employer had not taken any measures to prevent sexual harassment and these acts of sexual harassment had continued for a long time. The Ministry of Labor and Welfare has reexamined the classification of sexual harassment in the above criteria. The report of the Ministrys Commission27 proposed on June 28, 2011 that sexual harassment should be classified principally as grade , but that in certain cases, it should be classified as grade . The forms of sexual harassment classified as grade in the report include (a) rape and other indecent conducts against a victims will and (b) continued sexual harassment. As examples, the report mentiones such conduct or speech as follows: certain illnesses, which are found in Chapter of the ICD-10 (an international illness classification ), for example, maladjustment, depression and schizophrenia. 26 This case is mentioned in the decisions of the Labor Insurance Objection Committee in 2010 ( http://www.mhlw/go.jp/bunya/roudoukijun/kettei_jian/dl/h22b_1_21.pdf). 27 Commission on the Criteria of Mental Illness Covered by Workers Accident Insurance (Chair: Prof. Kichr Yamaguchi), Report on Sexual Harassment Cases, June 28, 2011. (http://www.mhlw.go.jp.) 8

The act of touching of an individuals breasts or back that occurs repeatedly, The act of touching of an individuals breasts or back that does not occur repeatedly, but is ignored by the firm, Sexual and insulting speech that occurs repeatedly, Sexual and insulting speech that does not occur repeatedly, but is ignored by the firm. When a firm takes appropriate measures against sexual harassment, then the

harassment is classified as grade . 5.4 Cases related to Workers Accident Insurance Labor Standards Inspection Officers decides whether claimants should receive benefits from Workers Accident Insurance. If the claims of victims or their families for this benefit are denied, they may protest the decision to the Labor Insurance Objection Committee. If their objection is denied, they can bring a lawsuit against the Labor Standards Inspection Officers. There are many overwork cases, in which victims or their families were denied the claim and have sought for retracting of the decisions of the Labor Standards Inspection Officers. In the Nagoya Rkishocho case, a plaintiff claimed that her husband committed suicide because of power harassment, and that she should be awarded the survivor s pension of Workers Accident Insurance. The Nagoya High Court approved her claim28. Her husband was an employee of an electric power company and had just been promoted to manager. His boss, a section manager, openly made such insulting remarks as, You were far from being a chief, We will have no problem without you, and Take off your wedding ring. In the workplace, you should not wear such a showy thing. He forced the victim to submit a written apology. The Nagoya High Court said that such speech and conduct on the part of the boss qualified as power harassment and led to severe stress that caused the victims depression and suicide. After this judgment, the Ministry of Labor and Welfare stated that severe mobbing should be qualified as grade according to the above-mentioned guidelines29. Conclusion In Japan, the courts have developed rules to protectt employees against sexual harassment and mobbing. Following the development of case law, the Ministry of Labor and Welfare has gradually expanded the relief allowed under Workers Accident
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Oct. 31, 2007, 954 Rhan 31. Nr. 0206001 of the Notice of the Ministry of Labor and Welfare, Feb. 6, 2008. 9

Insurance. Business Enterprises also take this problem seriously. In a study, 38% of the surveyed enterprises believed that mobbing is a very important problem and 44% believed that it is an important problem30, because a good working environments contributes to productivity. It is anticipated that businesses and trade union will begin to take greater measures to prevent mobbing and harassment.

HP of the Ministry of the Labor and Welfare (http://www.mhlw.go.jp/stf/shingi/2r-9852000).

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