WWIN News NO.16 Asahi Simbun June 16, 2006

Amended Equal Opportunity Law Passes Transfers and Body Size… “Indirect Discrimination” Prohibited, Sexual Harassment of Men Included
By Takenobu Mieko

The amended Equal Employment Opportunity Law was voted unanimously on the 15th in the Lower House, finalizing the legislation of the amendment. The amendment includes prohibition of “indirect discrimination” – when certain criteria seem gender-neutral and yet in effect brings about disadvantage to one sex – as well as obligates employers to prevent sexual harassment of both women and men. Looking towards the implementation in next April, details of the guideline and the ministerial statute are scheduled to be worked out.

As for indirect discrimination, the representatives of employers showed reluctance to include it for the reason that “the concept has not widely taken root and would cause much confusion.” Consequently, the amendment came to list three forms of indirect discrimination in the ministerial statute (1. height, weight, and strength requirements in recruitment and hiring, 2. requirement of nation-wide transfers in recruitment and hiring for managerial-track positions, 3. requirement of geographical transfers in promotion).

However, after receiving criticisms such as “many will think that listing three forms will excuse other forms” and “legislating this way will not deal with changing forms of discrimination,” the government attached a note to the law stating that there could be other forms of indirect discrimination and that the court may find more than those listed in the statute. The law also includes a new stipulation that the next amendment is to be made within five years if necessary.

Moreover, the definition of sexual discrimination was expanded to include discrimination against men. With this, employers are obligated to institute programs to prevent sexual harassment of men and are prohibited to exclude qualified men for jobs such as nursing and clerical work. The employer’s obligation of instituting sexual harassment prevention programs was made stronger with this amendment.

The amended law also prohibits unfavorable treatment such as demoting the worker from full-time to part-time status and not renewing the worker’s contract on the grounds of pregnancy and taking advantage of maternity leave. Currently, the law merely prohibits dismissal on the grounds of pregnancy and/or child birth. Under the new amendment, dismissal during pregnancy or within one year after giving birth is invalid.

Focus on Helping Working Women
Elimination of Other Forms of Discrimination is the Key

< Editor’s Note>
From “Just like men” to “Improved work conditions for women”… This amendment had to consider the low birth rate, increasing competition in the global market, and the international push behind allowing women to more effectively use their abilities and skills— it intended to make a shift in the debate about the contents of equality.

The most important issue then is prohibition of indirect discrimination. Although it lists only three forms, the prohibition of geographical transfers as a requirement in hiring for managerial-track positions and in promotion should call into question the established worker model as a man with little family responsibility.

However, the amendment is only half way there. In Western nations, indirect discrimination is “by principle prohibited and is dealt with by building cases after cases.” With only three forms of indirect discrimination listed in the new amendment, there is much anxiety over its implications for future court cases that might be deemed outside the stipulation of the law and thus lead to unfair judgments.

Thus, the law acknowledges that “the court may find more than those listed in the statute” and states that “another amendment is to be considered before five years pass.” Japanese Trade Union Confederation and women’s organizations give partial credit to the results and are planning to dig up various cases of indirect discrimination in order to facilitate the next step. Actions like these are essential to making effective legislation for the elimination of discrimination.