Gender discrimination and related matters in Japan

Hideki Thurgood Kanoh
Anderson Mori & Tomotsune, Tokyo
hidekithurgood.kanoh@amt-law.com

Japan may stop functioning in 90 years

Japan’s population is plunging. The statistics as of July 2021 show that 1.36 was the birth rate for the year 2019. There are around 120,000,000 people in Japan. But, it is estimated that the population will fall to around 43,000,000 in 90 years unless effective action is taken. The number of new born babies in 2022 was less than 800,000. This decrease would adversely affect not only the tax, pension and insurance system in Japan, but also the continued existence of the country.

There will be a smaller number of employees in the labour market in the near future, and the number of those who are to assume managerial or supervisory positions will be even smaller. Companies that continue to virtually discriminate against female employees will not have a bright future. The utilisation of female employees and creating a good working environment will be the only legal and practical solution for them.

When Shinzo Abe was Japan’s prime minister, the government aimed at achieving a specific goal: by 2020 the aim was to arrive at a ratio of approximately 30 per cent of female employees who assume the position of mangers or above. However, the goal was not reached in 2020 and, thus, the government postponed the deadline until ‘2030 or earlier than that’.

A male dominated society

Japanese culture is still very chauvinistic. One example is the Emperor Act. Article 1, thereof, strangely mentions that emperors shall be male only. Therefore, female individuals have been deprived of the opportunity to become an emperor.

Another example is the application of the Civil Act. Article 750, thereof, stipulates that the family name of a married couple shall be either of the spouses names, which means that at least one spouse shall make a change to her or his family name due to their marriage. Although Article 750 does not state that female spouses should change their family name, in almost all situations in Japan, female spouses are the ones to change their family name. 

A third example is related to the Equal Employment Opportunity Act. Article 11, thereof, bans sexual harassment. The Ministry of Health, Labour and Welfare has even issued and amended the administrative guidelines on the prohibition of sexual harassment (the latest amendment was made as of January 2020). However, it has not seemingly resulted in a substantial decrease in the number of sexual harassment cases.

A fourth example also concerns the Equal Employment Opportunity Act. Article 9 and Article 11-3, thereof, ban pregnancy discrimination. The Ministry of Health, Labour and Welfare even issued (in August 2016 and amended in January 2020) administrative guidelines prohibiting pregnancy discrimination. However, despite this, pregnancy discrimination cases are becoming more and more prevalent these days.

A fifth example involves the Child Care Leave and Family Care Leave Act. Article 5, thereof, mentions that each parent is allowed to take child care leave. However, the atmosphere in workplaces is so old fashioned in Japan that male employees find it difficult to try to take child care leave in practice. Because of this, amendments to the Act that came into force as of April 2022 explicitly recommend that male employees take child care leave. 

The Female Employees Activation Inducement Act

Articles 5 and 6 of the Equal Employment Opportunity Act ban discriminatory treatment based on gender. There have been, however, very few female employees that assume managerial or supervisory positions in Japan. In order to break away from the current state of play, Japan enacted the Female Employees Activation Inducement Act. 

The Female Employees Activation Inducement Act (the ‘Act’), which was enacted by Congress in August 2015 and started to be effective as of April 2016, was also introduced by then prime minister Shinzo Abe (who was assassinated in July 2022). The Act was designed to increase the number of female employees playing an active and important role in business. According to the Act, companies with more than 300 employees are required to publicise the following information:

(1) Opportunities -elective (the company is required to choose at least one of the eight items described below):

• the ratio of female employees that are newly hired compared to all the newly hired employees;
• the competition ratio between female and male employees if the company differentiates the form of the hiring process on the basis of gender;
• the ratio of female employees compared to all employees;
• the ratio of junior managers compared to all junior managers;
• the ratio of female managers and above compared to all managers and above;
• the ratio of female statutory directors and officers compared to all statutory directors and officers;
• past examples of internal transfers of roles and/or employment status (contract types) with respect to female and male employees; and
• past examples of re-hiring and/or mid-career recruitment with respect to female and male employees.

(2) Opportunities - compulsory (as of July 2022):

• the difference between the wages of female and male employees.

(3) Work–life balance - elective (at least one of the seven items described below must be chosen):

• the difference between the average period of service of female and male employees;
• the ratio of active female employees hired 10 fiscal years ago compared to the active male employees hired 10 fiscal years ago;
• the ratio of female and male employees who have taken childcare leave;
• the average amount of monthly overtime completed by female and male employees;
• the average amount of monthly overtime completed by female and male employees, with respect to each employment status (contract type);
• the ratio of employees who have taken annual paid leave; and
• the ratio of employees who have taken annual paid leave, with respect to each employment status (contract type).

Pregnancy discrimination and sexual harassment

The Child Care Leave and Family Care Leave Act has been amended many times in order to enable employees to take childcare leave more easily. The concept of ‘pregnancy discrimination’ is prevalent in big cities in Japan and employers are trying to pay attention to it. Almost all companies are aware of the risks of sexual harassment and it is possible to note that currently female employees are much more protected compared to the situation 30 years ago.

On the other hand, the number of marriages involving co-workers is getting smaller, since male employees are becoming more worried about approaching female co-workers and, thus, of being accused of sexual harassment. In addition, there are many cases where employees are disgruntled with what may appear to be special treatment towards pregnant female employees and those who are on maternity leave and child care leave.

Discrimination against LGBTQ+ and same-sex marriage

Ministry of Health, Labour and Welfare

The Ministry of Health, Labour and Welfare amended its administrative guidelines as of August 2016 (which came into force as of January 2017), to clarify that sexual harassment can also occur in terms of the LGBTQ+ community.

The Ministry also announced a new standard for curriculum vitae (CVs) as of April 2021. The new standard indicates that a candidate for a job does not have to ‘make a choice between two genders’, and that the gender description is discretionary. 

Lawsuit on the utilisation of washrooms by transgender employees

Another very critical discussion relates to the utilisation of washrooms. A transgender employee of the Ministry of Economic, Trade and Industry filed a lawsuit against the national government, because they were prohibited from using a washroom for female employees. The Tokyo District Court decided on 12 December 2019 that the prohibition was illegal. However, the national government appealed to the Tokyo High Court and, on 27 May 2021, the Tokyo District Court’s decision was overruled, which resulted in the employee losing the case.

Lawsuit on same-sex marriage

On 17 March 2021 the Sapporo District Court issued a decision stating that the prohibition on same-sex marriage is unconstitutional (ie, against Article 14 of the Constitution, which guarantees equal treatment). On the other hand, the Osaka District Court issued a decision on 20 June 2022 stating that the prohibition is constitutional. Both cases are currently being examined by the Osaka High Court. However, on 22 November 2022, the Tokyo District mentioned that the prohibition is constitutional, although it is up to the court to decide whether it is unconstitutional.