WWIN News NO.13 Sept.7.2003

The CEDAW Council
For Japanes government

    NGO Report by Working Women’s International Network 
Japanese Corporations and Government Should Establish Equal Pay
for Men and Women without Delay

We are an organization of the plaintiffs and their supporters, pursuing court cases against Sumitomo Electric, Sumitomo Chemicals, Sumitomo Metal and the Japanese government for wage discrimination based on sex. We came to make an appeal to you on the occasion of the examination of the Japanese government report on equality between men and women on July 8th, 2003 at the United Nations Committee on the Elimination of Discrimination against Women (CEDAW).
In Japan, which is supposed to be one of the “economic giants,” even women like us, working as regular employees earn only 65% of the male employees’ wages. But half of the working women are in part-time jobs (90% of people working part-time jobs are women), and their wages make up a mere 40% of those of men. The right to equality in work has yet to be established in Japan. The details of our arguments can be found in the NGO Report, but in short, our wish is to realize the following four conditions.
1. Prohibition of indirect discrimination
In the previous examination of the Japanese Report (1994), the government was requested to “… report on the measures taken to address the indirect discrimination faced by women..” in the Concluding Observations. The government, however, has not taken any measures, and in the current Sumitomo Electric and Sumitomo Chemicals cases, the gender based employment management apparently resulted in a wage difference of 2,000 dollars a month between high school graduate women and men with similar years in employment. The Osaka District Court admits to the existence of this difference. But both government and the companies argued that the reason for the difference is the different hiring categories. Men were hired as prospective management personnel, while women were hired to take on routine assistant work. The difference, they explained, was the result of different career tracks, and not based on sex. The Osaka District Court decisions sided with those arguments.
The Japanese career track-based hiring is a cover for sex discrimination. (This has been mentioned at the ILO 91st General Meeting in 2003.) To promote equality between men and women in Japan, there should be an explicit prohibition against indirect discrimination. Nine years has passed since the last CEDAW recommendations, and the Government still continues to state that they are “studying” the issue of indirect discrimination, and has not implemented the Convention without delay. The Government should fulfill its responsibilities.

2. Revision of the Guidelines for the Equal Employment Opportunity Law
CEDAW questioned why discrimination persisted even after the enactment of the Equal Employment Opportunity Law. The answer lies in the fact, that the Guideline provides a loophole for companies. The Guideline states that comparison would not be made if the employment management categories are different. Because of this Guideline, discrimination between men and women is kept ingeniously hidden, and the companies would be able to continue discrimination by changing these categories, such as branch-based hiring or hiring for part-time positions. The Guideline is in violation of the Convention against All Forms of Discrimination against Women, and should be revised immediately.

3. Elimination of discrimination without delay
Discrimination in wages and promotion still continue by reason of gender-based hiring before the entry into force of the Convention. The Court denied any remedies for the plaintiffs, by saying that there was no responsibility to correct the discrimination, since the plaintiffs were hired before the enactment of the Equal Employment Opportunity Law, and the Law was not retroactive. If the spirit of the Convention was to be adhered to, the continuing discrimination should be eliminated without delay.
4.The ratification of the Optional Protocol to the Convention by Japanese government soon.

The court cases are facing an important phase this year. We ask for your kind  support.

E-mail : WWIN@mv.email.ne.jp
URL: http://www.ne.jp/asahi/wwn/wwin
Committee on the Elimination of
Discrimination against Women
Twenty-ninth session 30 June -18 July 2003
Draft report
Consideration of reports of States parties
Fourth and fifth periodic reports
1. The Committee considered the fourth and fifth periodic reports of Japan
(CEDAW/C/JPN/4 and CEDAW/C/JPN/5) at its 617th and 618th meetings on 8 July 2003.
I. Introduction by the State party
2. In introducing the fourth and fifth periodic reports, the r epresentative
emphasized that great progress had been made for gender equality in the 1990s.
Information, including the opinions of non-governmental organizations, had beensought in the preparation of the present reports. As national government ministries and agencies had been streamlined in 2001, the existing national machinery forgender equality had been strengthened. The Gender Equality Bureau had beenestablished within the Cabinet Office, with responsibility for planning andcoordinating the gender equality policies of the Government. The Council forGender Equality, chaired by the Chief Cabinet Secretary, who also held the post of Minister of State for Gender Equality, consisted of ministers and experts, and monitored the implementation of gender equality policies and studied their effects.
3. The representative drew attention to a number of new legal and othermeasures. The Basic Law for a Gender-equal Society had been enacted in 1999,followed by the adoption in December 2000 of the Basic Plan for Gender Equality.
II. Concluding comments of the Committee
12. The Committee commends the State party for t he quality and timely submission of its fourth and fifth periodic reports, which comply with the Committee’s guidelines for the preparation of periodic reports. It expresses appreciation to the State party for the written replies to the issues and question s of
the Committee’s pre -session working group and for the comprehensive oral presentation, which provided additional information on recent developments in the State party.
Principal areas of concern and recommendations
21. The Committee expresses concern that, while the Constitution stipulates equality between the sexes, no specific definition of discrimination has been included in domestic legislation.
22. The Committee recommends that a definition of discrimination against women encompassing both direct and indirect discrimination, in line with article 1 of the Convention, be included in domestic legislation. It also recommends campaigns to raise awareness about the Convention, in particular the meaning and scope of indirect discrimination, aimed, inter alia, at parliamentarians, the judiciary and the legal profession in general.
23. While appreciating the State party’s recognition that the long –standing stereotyped perception of gender roles remains the major obstacle to achieving equality between women and men and noting its efforts based on regular opinion polls in this regard, the Committee remains concerned about the persistence of deeply rooted and rigid stereotypes in Japan regarding the role and responsibilities of women and men in the family and in society, which are reflected in women’s situation in the labour market, educational choices and low participation in political and public life.
33. The Committee is concerned at the existing wage gap between women andmen, stemming largely from the difference in type of work, horizontal and vertical employment segregation as expressed by the two -track employment management system, and the lack of understanding regarding the practice and the effects of indirect discrimination as expressed in the governmental guidelines to the Equal Employment Opportunity Law. The Committee is further concerned by the high percentage of women in part -time work and by women who are “dispatch workers”, whose salaries are lower than those working in a regular situation. The Committee is deeply concerned about the difficulties faced primarily by women in reconciling their personal and family lives with professional and public responsibilities.
34. The Committee urges the State party to amend its guidelines to the Equal Employment Opportunity Law and to increase its efforts towards accelerating the achievement of de facto equal opportunities for women and men in the labour market through, inter alia, the use of temporary special measures in accordance with article 4, paragraph 1, of the Convention. The Committee
recommends that efforts be made to eliminate occupational segregation, both horizontal and vertical, through, inter alia, education and training, effective enforcement mechanisms and systematic monitoring of progress. TheCommittee recommends that measures allowing for the reconciliation of family and professional responsibilities be intensified, that equal sharing of domestic and family tasks between women and men be promoted, and that changes to the stereotypical expectations of women’s roles in the family and labour market be encouraged.
39. The Committee encourages the State party to continue to consider the ratification of the Optional Protocol to the Convention, while noting the concerns expressed by the State party in its fifth periodic report. The Committee strongly believes that the mechanisms available under the Optional
Protocol would strengthen the independence of the judiciary and assist it in understanding discrimination against women.
*** WWIN cut the part of this Draft report. IF you want to see all artcle. Please let us know.***
Asahi News Paper : Aug. 10, 2003

“Track-based Employment Criticized” (Osaka title)
(Tokyo title, “Overwhelming number of women in general clerical jobs –
should be defined as discrimination in law”)

“Indirect Discrimination” subject of UN Recommendation
Equality between Women and Men – Delay Noted

The concluding comments of the UN Committee on Elimination of All Forms of Discrimination Against Women was made public on August 9. The Committee has been considering the Japanese government’s efforts in implementing the Convention. It mentions the track-based employment management system among others, and recommends that such “indirect discrimination” be clearly defined in law as discrimination, as well as raise awareness on the issue. Track-based employment management has been the target of strong criticism for being a cover for sex discrimination, using terms such as “administrative jobs” and “general clerical jobs.” The Committee pointed out to the delay in achieving de facto equality between women and men, in spite of the progress in legislation.
According to the document obtained by the NGO’s working in Japan towards the improvement of the status of women, enactment of the Basic Law for Gender Equal Society, Law for the Prevention of Spousal Violence, and the amendment of the Equal Employment Opportunity Law was seen as a positive development. Meanwhile, there was expression of concern towards the overwhelmingly large number of women employed in the low-paying clerical track jobs, part-time or “dispatch” employment, creating a wide wage gap between women and men.
The concluding comment recommended that “indirect discrimination,” which is still insufficiently recognized in Japan, be defined in domestic law, and be made widely known to members of the Diet and the judiciary, that it constitutes discrimination. It also recommended that the government amend the Guidelines regarding track-based employment management in its efforts to eliminate discrimination.
The Committee also raised concern on the provisions of the Civil Code regarding surnames of married couples, difference in minimum age for marriage and discrimination against children married to unmarried parents, and called for the abolishment of these provisions. It also urged that information regarding the situation of minority women, including foreign residents and Ainu women, as well as take measures for foreign women, who may be reluctant to seek protection from domestic violence for fear of deportation.


August 5. 2003
Members of CEDAW
The members of the Working Women’s International Network (WWIN) congratulate you on your concerned comments during the consideration of the Japanese report on July 8. We returned to Japan, very much encouraged by your enthusiasm to promote equality between men and women in Japan.
One of the questions raised during the consideration was on the number of court decisions referring to the Convention. Director Bando responding for the government replied that there were many. However, when Ms. Mizuho Fukushima, Member of the Upper House in the Diet questioned the government on this matter, the government’s response was that there were four. Even in those four cases, as can be seen in the Sumitomo case, the court merely refers to the argument referring to the Convention raised by the plaintiffs. There seems to be no apparent will by the government to actively apply the Convention. According to the lawyer supporting us, the cases which the government mentioned, shows that the courts did not use the Convention to provide remedies for women, but merely dismissed their case, stating that it did not amount to a violation of the Convention. It clearly shows that the Convention is not applied or interpreted according to its objectives.
We hope that the consideration of the report and the concluding comments from the Committee will lead to a more positive use of the Convention.

Reiko Shoji
Working Women’s International Network

Questioned during the Legal Affairs Committee of the Upper House of the Diet by Member, Mrs. Mizuho Fukushima, the representative of the Ministry of Justice, responding for the government, replied that there were 4 cases, as far as the Ministry knew, in which the government was party, and which referred to CEDAW.

Court Judgment Referring to CEDAW

1. Income Tax Reassessment Cancellation Claim Case, Judgment on December 16, 1987, Tokyo District Court
Brief Summary
(1) A child of an unmarried partner (de facto spouse) by another man, and an unrecognized child of the same partner by the defendant are not included in the term “dependent relative” which will fall within the scope of tax exemption for dependents.
(2) A child of an unmarried partner (de facto spouse) by another man, and an unrecognized child of the same partner by the defendant are not included in the term “dependent relative” within the scope of tax exemption for dependents under the Income Tax Law.
Reference to CEDAW
The plaintiff refers to the provisions and the objectives of Article 16 (1)(d), to argue that the child by the defendant in fact should be considered to be within the scope of tax exemption for dependents. However, the above provision does not concern tax matters, and cannot be interpreted as prohibiting distinctions in treatment in tax exemptions for dependents between members of the family in fact and members of the family in law.

Judgment at the Appeals Court, September 19, 1989, Tokyo Appeals Court
Same as above
Same as above

Judgment at the Supreme Court, October 17, 1991, First Chamber
Same as above
Same as above

2. ASuit on Unconstitutionality of Prohibition Period of Remarriage for Women. Judgment on January 28, 1991, Hiroshima District Court
Brief Summary
(1) There is no illegality under the State Compensation Law regarding acts of Members of the Diet and the Cabinet, who legislated Article 733 of the Civil Code (prohibition of remarriage after divorce for 6 months) and did not abolish the said article.
(2) The loss incurred during the term of prohibition of remarriage after divorce is not considered particular sacrifice within the scope of compensation for loss.
(3) Preamble, Article 2, 15, and 16 of CEDAW, and Article 23 of ICCPR should not be interpreted as prohibiting different treatment between men and women on reasonable grounds, or prohibiting limitations on reasonable grounds on the right to marry and form a family.
Reference to CEDAW
Preamble, Article 2, 15, and 16 of CEDAW, and Article 23 of ICCPR should not be interpreted as prohibiting different treatment between men and women on reasonable grounds, or prohibiting limitations on reasonable grounds on the right to marry and form a family.

Judgment at the Appeals Court, November 28, 1991, Hiroshima Appeals Court
Same as above
Same as above

3. Sumitomo Electric Industries, Ltd. Case, Judgment on July 31, 2000, Osaka District Court
Brief Summary
(1) Difference in wages, etc., arising from different treatment between high school graduate men and women after being hired is due to different hiring categories, in which they were either hired on a company-wide basis as prospective management staff, or on a branch basis as assistant staff assigned to routine work.
(2) Article 8 of the Equal Employment Opportunity Law prior to the amendment requires equal treatment in opportunity between men and women under the same conditions, and whether the difference between men and women is discriminatory should be considered within the same hiring category. The administrative authority, therefore, did not err in deciding not to initiate mediation.
Reference to CEDAW
Plaintiffs argue that the hiring categories in which men are hired on a company-wide basis, and women on branch basis is in itself gender-based labour management, amounting to illegal sex discrimination. They, therefore, argue that based on the provisions, including that of CEDAW, the hiring categories as mentioned in the guidelines should be interpreted as not including such illegal sex discrimination. In the light of the social conditions during 1965~1975, when the plaintiffs were hired, however, it cannot be said that the defendant company was in violation of public order and good morals, when it did not include high school graduate women in possible recruits for company-based hiring.

4. Sumitomo Life Insurance Co. Case, Judgment on June 27, 2001, Osaka District Court
Brief Summary
The applications for mediation by the plaintiffs, who claim discriminatory treatment in promotion, etc., after marriage, all concern discrimination between them and unmarried women in the same clerical jobs, and the case involves discrimination among women. The decision of the Osaka Young People and Women’s Bureau was not illegal in holding that the case does not concern measures to be required from employers to ensure treatment that is not disadvantageous compared to men in promotion, under Article 8 (Article 6 in the Amended Law) of the Equal Employment Opportunity Law and does not come within the scope of mediation under Article 15 (Article 13 in the Amended Law) of the Equal Employment Opportunity Law regarding the two applications for mediation by the plaintiffs.

Reference to CEDAW
Regarding CEDAW, Article 1 defines discrimination to be interpreted “on the basis of equality of men and women” and it is clear that it considers discrimination against women in comparison to men as being “discrimination against women.” Discrimination against women in comparison to women, therefore, cannot be considered “discrimination against women.”

(based on information received from the Ministry of Justice by Mizuho Fukushima’s office.)