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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.

ⅠSexual 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 woman’s

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

1 The Fukuoka Sexual Harassment case, Fukuoka District Court (Apr. 16, 1992) 607

Rōhan 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 Koyō Kikai Kintō Hō” . 4 “Kobetsu Rōdō Hunsō Syori Hō”. This administrative procedure treats a huge volume

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administrative conciliation body or a chief of the Labor Bureau (rōdō 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 Japan’s 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

person’s 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 victim’s

“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 Rōhan 54 and

many other cases. 8 The Fukuoka Sexual Harassment case. 9 The Kyoto Sexual Harassment case, Kyoto District Court (Apr. 17, 1997) 716 Rōhan

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 “Persönlichkeitsrecht”.

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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

working”12. 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 contract13. 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 kankyō hairyo gimu) ” is established as a contractual duty.

Ⅱ 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.

12 Fukuoka District Court (Apr. 16, 1992) 607 Rōhan 6. 13 Tsu District Court (Nov. 5, 1997) 729 Rōhan 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 employee’s safety (anzen hairyo gimu) and ordered punitive

damages. However, there was a difference between the two judgments. While in the

Kawasaki Suidō Kyoku (Kawasaki Waterworks Bureau) case16 the court admitted the

causal relationship between the employer ’s breach of duty to look after his employee’s

safety and the victim’s suicide, in the Iryōhōjin Seisyōkai (Medical Foundation

Seisyōkai) 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 Suidō Kyoku case,

the court regarded suicide as constituting normal damages, but in the Iryōhōjin

Seisyōkai case, the court regarded it as constituting special damages and requested poof

of the predictability. According to the judgment in the Iryōhōjin Seisyōkai 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 employee’s suicide is often argued in

overwork (karōshi) 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 employee’s 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

16 Tokyo High Court (March 25, 2003) 849 Rōhan 87. 17 Saitama District Court (September 24, 2004) 883 Rōhan 38. 18 The Dentsū case, the Supreme Court (March 24, 2000) 54-3 Minshū 1155.

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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.

Ⅲ 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

19 For example, Yokohama District Court (March 28, 2006) 1938 Hanreijihō 107. 20 Tokyo Distrikt Court (July 27, 2010) 1016 Rōhan 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 void23 . 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.

Ⅳ 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.

Ⅴ Coverage of Workers’ Accident Compensation Insurance

22 Tokyo District Court (Jan. 31, 2005) 1891 Hanreijihō 156. 23 Tokyo District Court (Apr. 24, 2009) 987 Rōhan 48. 24 The Fujitsu Fsas case, Tokyo District Court (Dec. 27, 2010) 1022 Rōhan 70.

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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 2006 2007 2008 2009 2010

mental illness

(incl. suicides)

number of claims 819 952 927 1136 1181

number of decisions 607 812 862 852 1061

number of approvals

(approval ratio)

205

(33.8%)

268

(33.0%)

269

(31.2%)

234

(27.5%)

308

(29.0%)

suicide number of claims 176 164 148 157 171

number of decisions 156 178 161 140 170

number of approvals

(approval ratios)

66

(42.3%)

81

(45.5%)

66

(41.0%)

63

(45.0%)

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 year 2009 2010

mobbing or assault (suicide) number of decisions 42(2) 58(7)

number of approvals 16(1) 29(5)

sexual harassment (suicide) number of decisions 16(0) 27(0)

number of approvals 4(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

25 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 employee’s

mental illness or suicide. Such incidents are classified into three grades. A gradeⅠ

incident is not acknowledged as severe enough to cause a mental illness. A grade Ⅱ

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 Ⅲ incident would usually be acknowledged as severe enough

to lead to a mental illness.

Sexual harassment is classified as grade Ⅱ, and severe mobbing is classified as grade

Ⅲ; 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

Ⅲ, 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 (rōdō 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 gradeⅡ, the Labor

Insurance Objection Committee classified it as grade Ⅲ, 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 Ministry’s Commission27 proposed

on June 28, 2011 that sexual harassment should be classified principally as grade Ⅱ,

but that in certain cases, it should be classified as grade Ⅲ. The forms of sexual

harassment classified as grade Ⅲ in the report include (a) rape and other indecent

conducts against a victim’s will and (b) continued sexual harassment.

As examples, the report mentiones such conduct or speech as follows:

certain illnesses, which are found in Chapter Ⅴ 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. Kōichrō Yamaguchi), Report on Sexual Harassment Cases, June

28, 2011. (http://www.mhlw.go.jp.)

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- The act of touching of an individual’s breasts or back that occurs repeatedly,

- The act of touching of an individual’s 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 Ⅱ.

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 Rōkishocho 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 victim’s depression and suicide.

After this judgment, the Ministry of Labor and Welfare stated that severe mobbing

should be qualified as grade Ⅲ 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

28 Oct. 31, 2007, 954 Rōhan 31. 29 Nr. 0206001 of the Notice of the Ministry of Labor and Welfare, Feb. 6, 2008.

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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.

30 HP of the Ministry of the Labor and Welfare

(http://www.mhlw.go.jp/stf/shingi/2r-9852000).