WWN Report Jan 4. 2016
CEDAW
Temporary special measures at workplace
INTERNATIONAL SYMPOSIUM COMMEMORATING THE 15th ANNIVERSARY OF WORKING WOMEN¨S
NETWORK: Temporary special measures at workplace
Dubravka Šimonovic Aug 29 2010 It is my great honor and privilege to participate in this Symposium organized by Working Women’s Network (WWN) on the occasion of the 15th anniversary of its work and 25th anniversary of Japans ratification of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW Convention). My presentation will be based on my work as the CEDAW Committee member for the past 8 years. For the past and the present work of the CEDAW Committee which is constantly evolving and developing our knowledge on the Convention as a “living women’s human rights instrument” I would like to acknowledge important contributions provided by the Committee members coming from Japan. I had an opportunity to work in the Committee with late Ms. Fumiko Saiga and with the current member Ms. Yoko Hayasi. During my two terms as a CEDAW Committee member and its former Chairperson I had twice the opportunity to participate at the examination of Japans periodic reports and the adoption of concluding observations in 2003 and 2009 respectively. In both sets of concluding observations, those of 2003 and those of 2009, the Committee acknowledged the progress achieved, but also noted remaining concerns and shortcomings in the implementation of the Convention. Japan is one of 186 State Parties to the CEDAW Convention but it is not yet one of the 96 State Parties to the Optional Protocol to the Convention. This Protocol, which has been ratified or acceded to by 96 States parties to the Convention, provides the Committee with competence to consider complaints from individuals or groups of individuals where certain preconditions are fulfilled, most importantly where domestic remedies have been exhausted. It also allows the Committee to inquire into reliable allegations of grave or systematic violations of the Convention. To date, the Committee has considered over 14 communications and undertaken one inquiry. Communications provide CEDAW with an opportunity to develop its jurisprudence against the background of an individual factual situation, while the inquiry competence allows it to craft recommendations to address grave or systematic violations of women’s rights. It is my understanding Working Women’s Network is among those that strongly advocate Japans ratification of the Optional Protocol to the Convention. This is a very commendable goal and on this occasion I would like to repeat the Committees recommendations from the last two sets of concluding observations: The Committee encourages the State party to continue to consider the ratification of the Optional Protocol to the Convention. The CEDAW Convention and temporary special measures The Convention on the Elimination of All Forms of Discrimination against Women adopted more that 30 years ago has a central place for elimination of discrimination against women and protection and promotion of human rights of women and achievement of substantive equality between women and man. The CEDAW Convention is a legally binding human rights treaty that identifies legislative and other appropriate measures required to ensure women's rights to equality and non-discrimination in the enjoyment of civil, political, economic, social, and cultural rights. The Convention’s aim is the elimination of all forms of discrimination against women resulting from the activities or omissions on the part of States parties, their agents, or committed by any persons or organization. Although the CEDAW Convention is a gender specific instrument its goal is the recognition and achievement of the de jure and de facto equality of women and men, which is to be achieved by a policy of elimination of all forms of discrimination against women. It protects women throughout their lifecycle and implicitly includes girls. The Convention also provides for the accelerated advancement of women by application of temporary special measures ( TSM) to accelerate advancement in all areas covered by the Convention. For better understanding of the TSM it is important to start form the definition of discrimination against women as provided in the Article 1 of the Convention: “[...] any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” This definition includes both direct and indirect discrimination against women, be it intentional or unintentional, in respect of law or practice, in all aspects of public and private life. Direct discrimination is intended to discriminate against women and constitutes apparent exclusion, distinction or restriction of rights of women as compared to men. Indirect discrimination occurs when apparently neutral legal standards or policies which do not seek to discriminate lead to consequences that, without justification, affect the enjoyment of rights by women disproportionally, simply because they are women. The fact that the Convention addresses both direct and indirect forms of discrimination against women makes it a unique instrument in international law for the achievement of genuine (both formal and substantive) equality between men and women. The Convention in the Article 2 contains a primary requirement for States parties to “embody the principle of equality of men and women in their national constitutions or other appropriate legislation” and to ensure the practical realization of this principle.” This requirement of practical realization of equality makes clear that the Convention envisages substantive equality between women and men in the enjoyment of all human rights. It also requires State parties to : 2 (e) to take all appropriate measure to eliminate discrimination against women by any person, organization or enterprise. Article 4.1 of the Convention provide a legal ground for a adoption of temporary special measures: 1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. TSM are those measures aimed at accelerating the achievement of de facto equality of men and women. Various terms are used for temporary special measures such as positive discrimination, positive measures, affirmative action, positive action and inverse discrimination. The point of departure of Article 4.1 is the de facto inequality and the need for the creation of de facto equality between men and women, which is the reason for the introduction of the “temporary special measures” for the acceleration of the de facto or real equality of men and women. Real or de facto inequality can be detected through statistics and indicators about the political participation of women, education employment, health or any other field which are an indicator of real inequality and the need for the acceleration of real equality. The introduction of such measures puts women in a more favourable proposition which to some extent places men in an adverse position, but only until the achievement of the same level of de facto equality, or of the purpose, that is, for which they are introduced, and hence they are not to be considered discriminatory. The Committee, for the sake of explanations of the nature and purpose of temporary special measures, adopted General Recommendation no. 25 concerning Article 4 Paragraph 1 at the July session in 2004. The Committee advocates the use of the term of the Convention, “temporary special measures”, which are temporary according to their purpose, i.e., can last as long as equality endures. They must not lead to the maintenance of separate unequal standards and should be stopped when equal opportunities for and equal treatment of men and women have been achieved. They are special in that they are related to a concrete objective, and the term measures relates to various legislative and administrative instruments and programmes. The Committee recommends the states parties to include provisions into their constitutions or laws provisions that will enable the passing of temporary special measures. In its explanation of the term real or de facto equality, the Committee says that the Convention requires that women be given the same starting position, but also that “through the provision of a favorable environment they are enabled to achieve identical outcomes”. . An example of temporary special measures is the quota system that some states incorporate into laws in order to ensure an increased participation of women in politics, while others criticize these as unconstitutional. For the latter, the Committee recommends putting into their constitutions and laws the possibility of passing such measures, thus ruling out any discriminatory nature in them. Those legal systems that allow for direct implementation of Convention including Article 4 Paragraph 1 already have legal ground for the introduction of these measures. These measures should be applied to all other areas in which there is de facto discrimination against women, that is to all the substantive articles of the Convention including in the employment field. Article 11 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary. According to Article 11, States parties are obliged to undertake “all appropriate measures” to eliminate discrimination against women in the field of employment, that is to enable women to have equal rights to work and being employed and the right to pay and benefits equal to those of men for equal work in given workplaces, which is comparable, while the right to equal treatment for work of equal value is much harder to compare. To clarify the latter right the Committee adopted General Recommendation no. 13 in 1989, in which it proposes to states parties that they should investigate and develop a manner of valuing jobs in a gender-neutral way which will enable jobs of various kinds in which it is mainly men that work and those in which women are mainly employed, in order to determine as far as possible equal pay for work of equal value, and to inform the Committee concerning this, Paragraph 2 of this Article relates to preventing discrimination against women on the basis of marriage and maternity, and they may not be dismissed purely because of pregnancy or maternity leave, nor may they be discriminated against by being dismissed because of their marital status. It is the obligation of the state to introduce paid maternity benefit or similar benefits and to ensure women secure return to their earlier job according to the same rank and welfare benefits. Although Article 11 (b) mentions paid maternity leave and not parenting (parental) leave, which would refer to both parents, the Committee extends this to the father of the child for the sake of encouraging joint responsibility in the upbringing of children according to Article 5 of the Convention. Numerous states parties are introducing special leaves for fathers, but in practice very few of them take advantage, so as not to reduce the family income, when they are limited to a certain amount that does not keep up with the amount of regular pay. Exceptionally, some states have introduced a special leave for fathers only, and in Norway 80% of fathers avail themselves of it,. The state is bound to set up a network of child care establishments so that parents can adjust their familial obligations to their work obligations and participation in public life and it is bound to provide special protection for women during pregnancy from work in places that are detrimental to them. Committees concluding observation for Japan and TSM When I joined the Committee it examined fourth and fifth periodic reports of Japan (CEDAW/C/JPN/4 and CEDAW/C/JPN/5) at its 617th and 618th meetings in July 2003 and adopted Concluding observations. Six year latter the Committee considered the sixth periodic report of Japan (CEDAW/C/JPN/6) at its 890th and 891st meetings in July 2009. (CEDAW/C/SR.890 and 891) and adopted Concluding observations. I vividly remember that on both occasions in addition to the high level and very competent Governmental delegation we had a large attendance of the national NGO representatives of Japan. In fact I believe this may be one of the largest number of national NGO representatives we had so far that attended the session of the Committee. They presented their numerous shadow reports during the informal meeting of the Committee with NGOs but also during an additional lunch time briefing by which they contributed with their written and oral reports to the quality of constructive dialoged with the governmental delegation. The Committee reflected on the good cooperation between the Government and NGOs in both sets of concluding observations. If we now look at the specific concerns and recommendation expressed by the CEDAW Committee in 2003 and 2009 we can observe that the Committee in the 2003 Concluding observations commended Japan for the timely submission of its Fourth and Fifth periodic reports while in the 2009 Concluding observations the Committee noted that the Sixth periodic report was overdue. Additionally, the Committees expressed its concern that its previous Concluding observations have been insufficiently addressed. It noted in particular, that those past recommendations regarding the lack of a definition of discrimination in line with the Convention, the discriminatory provisions in the Civil Code, the visibility of the Convention, the situation of women in the labour market and the wage discrimination women face and the low representation of women in high-level elected bodies have not been addressed and urged Japan to address the previous recommendations that have not yet been implemented and to report on their implementation in its next periodic report. As you can see if the previous shortcomings are not sufficiently addressed they are becoming a part of the present recommendations that require priority attention of the State Party. In Concluding observations of 2009 the Committee expressed its concern that the Convention has not been given central importance as a binding human rights instrument and as a basis for the elimination of all forms of discrimination against women and the advancement of women in the State party. It also noted that article 98, paragraph 2, of the Constitution of Japan stipulates that treaties that are ratified and promulgated have legal effect as part of the State party’s internal law, but expressed its concern that the provisions of the Convention are non-self-executing and are not directly applicable in court proceedings. In its recommendations the Committee urged Japan to: In relation to concerns of the Committee expressed in both 2003 and 2009 Concluding observation related to the definition of discrimination in line with the Convention and its incorporation in domestic legislation. The Committee called Japan to take urgent steps to incorporate the Convention and the definition of discrimination against women, as contained in article 1 of the Convention. It expressed its regret that the Law on Securing of Equal Opportunity and Treatment between Men and Women which was revised in 2006, did not incorporate such a definition but introduced a narrow definition of indirect discrimination and recalled that the absence of a specific provision with a definition of discrimination against women, encompassing both direct and indirect discrimination in both the public and private spheres, constitutes an impediment to the full application of the Convention. Looking again at the fact that article 98, paragraph 2, of the Constitution of Japan stipulates that treaties that are ratified and promulgated have legal effect as part of the State party’s internal law, recommendation for a full incorporation of a Convention should be carefully addressed primarily from the angle of giving the Convention provisions full effect thought the implementing legislation including specific legislation on the TSM. Starting from 2008 and the introduction of the Follow-up procedure two issues or two recommendations have been identified in each concluding observation for immediate follow-up by the each State Party, with an interim report on progress being required within one or two years. With respect to Japan the Committee in its last Concluding observations of 2009 requested Japan to provide, within two years, detailed written information on the implementation of the recommendations contained in paragraphs 18 and 28 above. Under paragraph 18 the Committee selected for a follow-up its recommendation on the temporary special measures. It first expressed its concern that no temporary special measures are in place to accelerate de facto equality between men and women or to improve the enjoyment by women of their rights in Japan, in particular with regard to women in the workplace and the participation of women in political and public life. The Committee recommended to Japan to urgently adopt temporary special measures in accordance with article 4, paragraph 1, of the Convention and the Committee’s general recommendation No. 25, with a special emphasis on the areas of employment of women and participation of women in political and public life, including women in academia, and with numerical goals and timetables to increase representation of women in decision-making positions at all levels The Committee is also calling NGOs to provide on a systematic basis information to the Committee in relation to the Committee’s follow-up procedure and such information will be made public on the Committee’s website. Since the Follow-up procedure is a procedure without constructive dialogue the importance of additional information form other stakeholders is even more important. Hopefully, majority of the Committee’s concerns will be timely and appropriately addressed by Japan. It seems that the elaboration of the Third Basic Plan for Gender Equality is an excellent opportunity for the Government to use the CEDAW Convention and its provisions, including the Committee’s General Recommendations such as 25 on TSM as key tools to eliminate discrimination against women and accelerate advancement of working women in Japan. It would be important that the Government addresses Committee’s Concluding observations with specific legislative and other appropriate measures for their implementation, with prioritization of the implementation of the Follow–up recommendations. Results achieved, including the ratification of the Optional protocol, would be reflected in the Japans next periodic report and the Committee’s concluding observations, but more importantly in everyday lives of women in Japan. Now, 25 years after the ratification of the CEDAW Convention, working women in Japan rightfully expect application of TSM that would accelerate achievement of de facto equality between mean and women in the field of employment in line Japan’s commitments under the Convention and the CEDAW Committees recommendation. Thank you
Concluding observations of CEDAW
United Nations CEDAW/C/JPN/CO/6
Convention on the Elimination of All Forms of Discrimination against Women
7 August 2009
Committee on the Elimination of Discrimination against Women Forty-fourth session
20 July-7 August 2009
Concluding observations of the Committee on the Elimination of Discrimination against Women
Japan
1. The Committee considered the sixth periodic report of Japan (CEDAW/C/JPN/6)
at its 890th and 891st meetings, on 23 July (see CEDAW/C/SR.890 and 891). The
Committee’s list of issues and questions is contained in CEDAW/C/JPN/Q/6 and the
responses of the Government of Japan are contained in CEDAW/C/JPN/Q/6/Add.1.
Introduction
2. The Committee expresses its appreciation to the State party for its sixth
periodic report which followed the Committee’s former guidelines for preparation of
reports, but which was overdue. The Committee also expresses its appreciation to
the State party for the written replies to the list of issues and questions raised by the
pre-session working group and further expresses its appreciation to the State party
for its oral presentation and the further clarifications given. The Committee notes
that a number of changes in laws, policies and programmes with positive impact on
the rights of women have occurred since the end of the period covered by the State
party’s report.
3. The Committee commends the State party for the inter-ministerial delegation
headed by a member of the House of Councillors and appreciates the presence of a
large number of national non-governmental organizations, showing a strong interest
in the reporting process under the Convention.
4. The Committee expresses its appreciation for the frank, open and constructive
dialogue held between the delegation and the members of the Committee.
5. The Committee welcomes the State party’s recognition of the positive
contributions made by non-governmental human rights and women’s organizations
in the implementation of the Convention.
Positive aspects
6. The Committee notes with appreciation that, since the consideration of its
fourth and fifth periodic reports (CEDAW/C/JPN/4 and CEDAW/C/JPN/5) in 2003,
the State party has enacted and revised numerous laws and legal provisions aimed at
eliminating discrimination against women and promoting gender equality and
achieving compliance with the State party’s obligations under the Convention. In
particular, it welcomes the adoption of the amendment of the Civil Act abolishing
the family head system contained in article 3.1 of the Nationality Law, which
enables children born out of wedlock to Japanese men and foreign women to be
granted Japanese nationality regardless of whether paternity is recognized before or
after the birth. The amended provision also ensures that men and women have the
same rights with respect to their children’s nationality.
7. The Committee commends the State party for the appointment in October 2005
of a Minister of State for Gender Equality and Social Affairs and the adoption of a
comprehensive Second Basic Plan for Gender Equality in December 2005 which
laid out 12 important fields towards practical realization of gender equality together
with long-term policy direction until 2020.
8. The Committee welcomes the establishment in April 2004 of the
Inter-Ministerial Liaison Committee on the development of measures to combat
trafficking in persons and the adoption in December 2004 of an Action Plan on
Measures to Combat Trafficking in Persons.
9. The Committee welcomes the State party’s support for women with disabilities
through the enactment in 2006 of the Services and Supports for Persons with
Disabilities Act and the revised Employment Promotion Law for Persons with
Disabilities (2008) which expands and reinforces measures for the employment of
persons with disabilities.
10. The Committee welcomes the State party’s continuous progress in reducing the
maternal mortality rate, making it one of the countries with the lowest maternal
mortality rates in the world.
11. The Committee notes with appreciation the enactment in 2006 of the Elderly
Abuse Prevention Law which promotes measures to prevent the abuse of the elderly
and provides support to caregivers.
12. The Committee appreciates the fact that the State party has integrated a gender
dimension into its development cooperation programmes and is promoting women’s
human rights within that framework.
Principal areas of concern and recommendations
13. The Committee recalls the State party’s obligation to implement,
systematically and continuously, all the provisions of the Convention, and views
the concerns and recommendations identified in the present concluding
observations as requiring the State party’s priority attention between now and
the submission of its next periodic report. Consequently, the Committee urges
the State party to focus on those areas in its implementation activities and to
report on actions taken and results achieved in its next periodic report. It calls
upon the State party to submit the present concluding observations to all
relevant ministries, to the Parliament and to the judiciary, so as to ensure their
full implementation.
Parliament
14. While reaffirming that the Government has the primary responsibility
and is particularly accountable for the full implementation of the State party’s
obligations under the Convention, the Committee, stressing that the Convention
is binding on all branches of Government, invites the State party to encourage
its national parliament, in line with its procedures, where appropriate, to take
the necessary steps with regard to the implementation of these concluding
observations and the Government’s next reporting process under the
Convention.
Previous concluding observations
15. The Committee regrets that some of the concerns it expressed and the
recommendations it made after its consideration of the State party’s fourth and fifth
periodic reports (CEDAW/C/JPN/4 and CEDAW/C/JPN/5) have been insufficiently
addressed. It notes, in particular, that those regarding the lack of a definition of
discrimination in line with the Convention, the discriminatory provisions in the
Civil Code, the visibility of the Convention, the situation of women in the labour
market and the wage discrimination women face and the low representation of
women in high-level elected bodies have not been addressed.
16. The Committee urges the State party to make every effort to address the
previous recommendations that have not yet been implemented, as well as the
concerns contained in the present concluding observations, and report on their
implementation in its next periodic report.
Discriminatory legislation
17. The Committee is concerned that, despite its recommendation in its previous
concluding observations, discriminatory legal provisions in the Civil Code with
respect to the minimum age for marriage, the waiting period required for women
before they can remarry after divorce and the choice of surnames for married
couples have yet to be repealed. It is further concerned that children born out of
wedlock continue to be discriminated against through the family registry system and
in provisions on inheritance. It notes with concern the use by the State party of
public opinion surveys to explain the lack of progress in the repeal of discriminatory
legislation.
18. The Committee urges the State party to take immediate action to amend
the Civil Code with a view to setting the minimum age for marriage at 18 for
both women and men, abolishing the six-month waiting period required for
women but not men before remarriage and adopting a system to allow for the
choice of surnames for married couples. It further urges the State party to
repeal the discriminatory provisions in the Civil Code and in the Family
Registration Law that discriminate against children born out of marriage and
their mothers. The Committee points out that the obligations undertaken under
the Convention by the State party upon ratification should not be solely
dependent on the results of public opinion surveys, but on its obligations to
align national laws in line with the provisions of the Convention as it is a part
of its national legal system.
Legal status and visibility of the Convention
19. The Committee is concerned that the Convention has not been given central
importance as a binding human rights instrument and as a basis for the elimination
of all forms of discrimination against women and the advancement of women in the
State party. In this connection, while noting that article 98, paragraph 2, of the
Constitution stipulates that treaties that are ratified and promulgated have legal
effect as part of the State party’s internal law, the Committee is concerned that the
provisions of the Convention are non-self-executing and are not directly applicable
in court proceedings.
20. The Committee urges the State party to recognize the Convention as the
most pertinent, broad and legally binding international instrument in the
sphere of the elimination of discrimination against women. The Committee
urges the State party to take immediate measures to ensure that the Convention
becomes fully applicable in the domestic legal system, and that its provisions
are fully incorporated into national legislation, including through the
introduction of sanctions, where appropriate. It also recommends that the State
party increase its efforts to raise awareness about the Convention and the
Committee’s general recommendations among judges, prosecutors and lawyers
so as to ensure that the spirit, objectives and provisions of the Convention are
well known and used in judicial processes. It furthermore recommends the
State party to take measures to further increase awareness and provide
capacity-building programmes for civil servants about the Convention and
gender equality. It reiterates its recommendation that the State party continue
to consider the ratification of the Optional Protocol and its strong belief that
the mechanisms available under the Optional Protocol would strengthen the
direct application of the Convention by the judiciary and assist it in
understanding discrimination against women.
Definition of discrimination
21. While noting that the Constitution enshrines the principle of equality between
men and women, the Committee remains concerned at the absence of direct and
clear incorporation of the Convention and of a specific definition of discrimination
against women in accordance with article 1 of the Convention in domestic
legislation. It regrets that the Law on Securing of Equal Opportunity and Treatment
between Men and Women (hereinafter referred to as the Equal Employment
Opportunity Law), which was revised in 2006, did not incorporate such a definition
but introduced a narrow definition of indirect discrimination. It recalls that the
absence of a specific provision with a definition of discrimination against women,
encompassing both direct and indirect discrimination in both the public and private
spheres, constitutes an impediment to the full application of the Convention in the
State party.
22. The Committee calls on the State party to take urgent steps to incorporate
the Convention and the definition of discrimination against women, as
contained in article 1 of the Convention, fully into domestic legislation and to
report on progress made in this regard in its next periodic report.
National human rights institution
23. The Committee regrets that, despite its recommendation in its previous
concluding observations and as highlighted by other treaty bodies, an independent
national human rights institution with a wide mandate, including for the protection
and promotion of women’s human rights, in accordance with the Principles relating
to the status of national institutions (see General Assembly resolution 48/134,
annex), has not yet been established.
24. The Committee recommends, taking account of Japan’s response at the
Human Rights Council at the end of the universal periodic review process (see
A/HRC/8/44/Add.1, para. 1 (a)), that the State party establish within a clear
time frame an independent national human rights institution in accordance
with the Principles, whose competencies should include issues related to the
equality of women and men.
National machinery for the advancement of women
25. While welcoming the establishment in October 2005 of the Minister of State
for Gender Equality and Social Affairs, the Committee is concerned that the Gender
Equality Bureau of the Cabinet Office, which serves as the secretariat for the
national machinery for gender equality, lacks the mandate and appropriate financial
resources to perform its functions. The Committee regrets the lack of information in
the report on the results achieved through the Second Basic Plan for Gender
Equality.
26. The Committee recommends that the State party further strengthen its
national machinery for the advancement of women, including by clearly
defining the mandate and responsibilities of its various components, in
particular between the Minister of State for Gender Equality and Social Affairs
and the Gender Equality Bureau, and enhancing coordination among them, as
well as through the provision of financial and human resources. It further
recommends that the Convention be used as legal framework for the design of
the Third Basic Plan for Gender Equality and that monitoring mechanisms be
put in place to regularly assess progress towards achievement of established
goals.
Temporary special measures
27. The Committee notes with regret that no temporary special measures are in
place to accelerate de facto equality between men and women or to improve the
enjoyment by women of their rights in the State party, in particular with regard to
women in the workplace and the participation of women in political and public life.
28. The Committee urges the State party to adopt, in accordance with article 4,
paragraph 1, of the Convention and the Committee’s general recommendation
No. 25, temporary special measures, with an emphasis on the areas of
employment of women and participation of women in political and public life,
including women in academia, and with numerical goals and timetables to
increase representation of women in decision-making positions at all levels.
Stereotypes
29. The Committee is concerned at the reported “backlash” against the recognition
and promotion of women’s human rights in the State party, despite the persistence of
inequality between women and men. It continues to be concerned at the persistence
of patriarchal attitudes and deep-rooted stereotypes regarding the roles and
responsibilities of women and men in the family and in society in Japan, which
threaten to undermine women’s exercise and enjoyment of their human rights. The
Committee notes that this persistence is, inter alia, reflected in the media and in
educational textbooks and curricular materials, all of which influence women’s
traditional educational choices and contribute to the unequal sharing of family and
domestic responsibilities, resulting in their disadvantaged situation in the labour
market and their underrepresentation in political and public life and decision-
making positions. The Committee is further concerned that stereotypical attitudes
are particularly prevalent in the media, where women and men are often depicted in
a stereotyped manner and that the media are becoming increasingly pornographic.
The over-sexualized depiction of women strengthens the existing stereotypes of
women as sex objects and continues to generate girls’ low self-esteem. The
Committee expresses its concern at the high incidence of gender discriminatory
statements and sexist remarks made by public officers and the lack of steps taken to
prevent and punish verbal violence against women.
30. The Committee calls upon the State party to further enhance its efforts
and to take proactive and sustained measures to eliminate stereotypical
attitudes about the roles and responsibilities of women and men, through
awareness-raising and educational campaigns. The Committee recommends
that the State party encourage the mass media to promote cultural change with
regard to the roles and tasks considered suitable for women and men, as
required by article 5 of the Convention. The Committee requests the State
party to enhance the education and in-service training of the teaching and
counselling staff of all educational establishments and at all levels with regard
to gender equality issues, and to speedily complete a revision of all educational
textbooks and materials to eliminate gender stereotypes. The Committee urges
the State party to take measures, including the criminalization of verbal
violence, to ensure that Government officials do not make disparaging remarks
that demean women and contribute to the patriarchal system which
discriminates against women. It also urges the State party to strengthen its
strategies to combat pornography and sexualization in the media and
advertising and to report the results of the implementation in its next periodic
report. It calls on the State party to take proactive steps including through
encouraging the adoption and implementation of self-regulatory measures to
ensure that media production and coverage are non-discriminatory and
promote positive images of girls and women, as well as increase awareness of
these issues among media proprietors and other relevant actors in the industry.
Violence against women
31. The Committee welcomes the various efforts undertaken by the State party to
combat violence against women and sexual violence since the submission of its
previous periodic report, including the revision of the Act on the Prevention of
Spousal Violence and the Protection of Victims (domestic law legislation) which
enhances the system for issuing protection orders and requires municipalities to
establish counselling and support centres. It remains concerned that the domestic
legislation does not cover all forms of violence within intimate relationships and
that the time between a request for a protection order and its issuance may further
endanger the victim’s life. The Committee is further concerned at the obstacles
women victims of domestic and sexual violence face when bringing complaints and
seeking protection. It is particularly concerned at the precarious situation of
immigrant women, minority women and women of vulnerable groups in this context
which may prevent them from reporting cases of domestic and sexual violence. The
Committee also expresses concern about the lack of information and data provided
about the prevalence of all forms of violence against women.
32. The Committee calls upon the State party to address violence against
women as a violation of women’s human rights and to make full use of the
Committee’s general recommendation No. 19 in its efforts to address all forms
of violence against women. It urges the State party to intensify its awareness-
raising efforts with regard to the unacceptability of all such violence, including
domestic violence. It recommends that the State party strengthen its work on
violence against women and speed up the issuance of protection orders and
open a 24-hour free hot-line for counselling women victims of violence against
women. It also recommends that the State party ensure that high-quality
support services are provided to women, including immigrant women and
women of vulnerable groups, in order for them to bring complaints, seek
protection and redress, thus ensuring that they do not have to stay in violent or
abusive relationships. In this respect, the State party should take the necessary
measures to facilitate the reporting of domestic and sexual violence. The
Committee recommends that the State party implement comprehensive
awareness-raising programmes throughout the country directed at these groups
of vulnerable women. It calls upon the State party to ensure that public
officials, especially law enforcement personnel, the judiciary, health-care
providers and social workers, are fully familiar with relevant legal provisions
and are sensitized to all forms of violence against women, and that they are
capable of providing adequate support to victims. It urges the State party to
collect data and to conduct research on the prevalence, causes and
consequences of all forms of violence against women, including domestic
violence, and to use such data as the basis for further comprehensive measures
and targeted intervention. It invites the State party to include statistical data
and the results of measures taken in its next periodic report.
33. The Committee is concerned that, under the Penal Code, the crime of sexual
violence is prosecuted only upon complaint by the victim and is still considered to
be a crime against morality. The Committee further remains concerned that the
penalty for rape remains low and that incest and marital rape are not defined
explicitly as crimes under the Penal Code.
34. The Committee urges the State party to eliminate in its Penal Code the
requirement of the victim’s complaint in order to prosecute crimes of sexual
violence and to define sexual crimes as crimes involving violations of women’s
rights to bodily security and integrity, to increase the penalty for rape and to
include incest as a specific crime.
35. While the Committee welcomes legislative measures taken against child
prostitution, such as the revision of the Act Banning Child Prostitution and Child
Pornography which increased the maximum term of imprisonment for offences
committed under this legislation, the Committee is concerned at the normalization
of sexual violence in the State party as reflected by the prevalence of pornographic
video games and cartoons featuring rape, gang rape, stalking and the sexual
molestation of women and girls. The Committee notes with concern that these video
games and cartoons fall outside the legal definition of child pornography in the Act
Banning Child Prostitution and Child Pornography.
36. The Committee strongly urges the State party to ban the sale of video
games or cartoons involving rape and sexual violence against women which
normalize and promote sexual violence against women and girls. The
Committee also recommends that, as indicated in the delegation’s oral
assurance during the constructive dialogue, the State party include this issue in
its revision of the Act Banning Child Prostitution and Child Pornography.
37. The Committee notes that some steps were taken by the State party to address
the situation of “comfort women” but regrets the State party’s failure to find a
lasting solution for the situation of “comfort women” victimized during the Second
World War and expresses concern at the deletion of references to this issue in school
textbooks.
38. The Committee reiterates its recommendation that the State party
urgently endeavour to find a lasting solution for the situation of “comfort
women” which would include the compensation of victims, the prosecution of
perpetrators and the education of the public about these crimes.
Trafficking and exploitation of prostitution
39. While welcoming the efforts undertaken by the State party to combat human
trafficking, such as its establishment of the Anonymous Reporting Model Project,
the Committee remains concerned about the persistence of trafficking in women and
girls, the exploitation of prostitution, and the lack of measures aimed at
rehabilitating women victims of trafficking. While noting with satisfaction the sharp
decrease in the granting of entertainment visas, the Committee is concerned at
information suggesting that internship and trainee programmes could be used for the
purposes of forced labour and sexual exploitation. The Committee is further
concerned that prostitutes are subject to prosecution under the Anti-Prostitution
Law, while their clients do not face punishment.
40. The Committee requests the State party to take further measures to
protect and support victims of trafficking and address the root cause of
trafficking by increasing its efforts to improve the economic situation of
women, thereby eliminating their vulnerability to exploitation and traffickers,
as well as to take measures for the rehabilitation and social integration of
women and girls who are victims of exploitation of prostitution and trafficking.
The Committee calls on the State party to take appropriate measures to
suppress the exploitation of prostitution of women, including by discouraging
the demand for prostitution. It also urges the State party to take measures to
facilitate the reintegration of prostitutes into society and provide rehabilitation
and economic empowerment programmes for women and girls exploited in
prostitution. The Committee requests the State party to continue to monitor the
issuance of visas for internship and trainee programmes closely. The
Committee calls upon the State party to ratify the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized
Crime.
Equal participation in political and public life
41. The Committee is concerned at the low percentage of women in high-ranking
positions in the Government, the Diet, the local assemblies, the judiciary, academia
and the diplomatic service. It notes the lack of statistics on the participation of
minority women in political and public life.
42. The Committee urges the State party to strengthen its efforts to increase
the representation of women in political and public life, through, inter alia, the
implementation of special measures in accordance with article 4, paragraph 1,
of the Convention, and with the Committee’s general recommendation No. 25,
in order to accelerate the realization of women’s de facto equality with men. It
encourages the State party to ensure that the representation of women in
political and public bodies reflects the full diversity of the population. The
Committee requests the State party to provide data and information on the
representation of women, including migrant and minority women, in political
and public life, in academia and in the diplomatic service, in its next periodic
report. It calls upon the State party to consider using a range of possible
measures, such as quotas, benchmarks, targets and incentives, in particular
with regard to the accelerated implementation of articles 7, 8, 10, 11, 12 and 14
of the Convention.
Education
43. While noting the many initiatives undertaken to ensure women’s equal rights
with men in the field of education, the Committee is concerned that, despite strong
opposition, the Basic Act on Education has been amended and article 5, which refers
to the promotion of gender equality, has been removed. The Committee also notes
with concern that women continue to be concentrated in traditional fields of study
and are underrepresented in academia as students and as faculty members,
particularly at the professorial level.
44. The Committee recommends that the State party give serious
consideration to reintegrating the promotion of gender equality in the Basic Act
on Education so that the State party’s commitment under the Convention to
protect women’s full rights in the field of education is integrated into domestic
law. The Committee also urges the State party to ensure that education policy
includes measures to encourage girls and women to pursue education and
training in non-traditional fields and so broaden their opportunities for
employment and careers in better paying sectors of the economy. The
Committee recommends that in the Third Basic Plan for Gender Equality the
quota set for the ratio of female faculty in university and colleges be increased
from 20 per cent to ultimately facilitate movement towards parity in the sex
ratio in these institutions.
Employment
45. The Committee remains concerned about women’s disadvantaged situation in
the labour market, as reflected in the significant vertical and horizontal occupational
segregation between women and men. The Committee is particularly concerned that
the “employment management category” in the Administrative Guideline under the
Equal Opportunity Law may provide leeway for employers to introduce a track-
based system which discriminates against women. It is also concerned about the
persistence of a very high gender-based wage gap of 32.2 per cent in hourly
earnings among full-time workers and of an even higher gender-based wage gap
among part-time workers, the predominance of women in fixed-term and part-time
employment and illegal dismissal of women due to pregnancy and childbirth. The
Committee also expresses concern regarding the inadequate protections and
sanctions within existing labour laws. In particular, the Committee is concerned
about the absence in the Labour Standards Law of a provision recognizing the
principle of equal pay for equal work and work of equal value in accordance with
the Convention and ILO Convention No. 100. The Committee also expresses
concern at widespread sexual harassment in the workplace and the fact the
legislation includes measures to identify companies that fail to prevent sexual
harassment, and no punitive measures to enforce compliance beyond publicizing the
names of the offending companies. The Committee is further concerned at the
lengthy legal processes on employment issues, which are not understood by women
and which impede them from obtaining redress in the courts, as provided for under
article 2 (c) of the Convention.
46. The Committee urges the State party to prioritize the realization of
women’s de facto equality with men in the labour market, so as to achieve full
compliance with article 11 of the Convention. It recommends that the State
party take concrete measures, including temporary special measures in
accordance with article 4, paragraph 1, of the Convention and the Committee’s
general recommendation No. 25, to eliminate both vertical and horizontal
occupational segregation and close the gender-based wage gap between women
and men, as well as measures to prevent the practice of illegal dismissal of
women in cases of pregnancy and childbirth. It encourages the State party to
establish sanctions for discrimination against women in the employment field in
both the public and private sectors, including sexual harassment, so as to create
effective enforcement and monitoring mechanisms and to ensure that women
have access to means of redress, including legal aid and timely disposal of their
cases.
Reconciliation of family and work life
47. While welcoming the State party’s legislative and policy efforts, such as the
Charter for Work-Life Balance, the Action Policy for Promoting Work-Life Balance
and the Strategy to Support Children and Family, as well as other measures to
improve the reconciliation of family and work life, the Committee is concerned that
domestic and family responsibilities are still primarily borne by women, and that
this is reflected in the extremely low rate of men who take parental leave and by the
fact that women interrupt their careers or engage in part-time jobs to meet family
responsibilities.
48. The Committee encourages the State party to step up its efforts to assist
women and men to strike a balance between family and employment
responsibilities, inter alia through further awareness-raising and education
initiatives for both women and men on the adequate sharing of care of children
and domestic tasks, as well as by ensuring that part-time employment is not
taken up almost exclusively by women. The Committee urges the State party to
strengthen its efforts to improve the provision and affordability of childcare
facilities for children of different age groups and encourage more men to avail
themselves of parental leave.
Health
49. While commending the State party for the high quality of its health services,
the Committee is concerned about the recent increase in the prevalence of sexually
transmitted disease, including HIV/AIDS, among Japanese women. It is also
concerned at the high ratio of abortion among teenage girls and young women and at
the fact that women who elect to undergo abortion can be subjected to punishment
under the Penal Code. The Committee regrets the lack of information on the mental
and psychological health of women.
50. The Committee recommends that the State party promote sexual health
education targeted at adolescent girls and boys, and ensure access to sexual
health information and all services, including those directed at interruption of
pregnancies, for all women and girls. The Committee also requests the State
party to provide, in its next report, sex-disaggregated data on health and the
provision of health care and more information and data on the prevalence of,
and measures taken against, sexually transmitted diseases, including
HIV/AIDS, among women. The Committee recommends that the State party
amend, when possible, its legislation criminalizing abortion in order to remove
punitive provisions imposed on women who undergo abortion, in line with the
Committee’s general recommendation No. 24 on women and health and the
Beijing Declaration and Platform for Action. The Committee requests the State
party to include in its next report information on the mental and psychological
health of women.
Minority women
51. The Committee regrets the lack of information and statistical data about the
situation of minority women in the State party, who suffer from multiple
discrimination based on gender and ethnic origin, both in society at large and within
their communities. The Committee further regrets the absence of any proactive
measures, including a policy framework for each minority group, to promote the
rights of minority women.
52. The Committee urges the State party to take effective measures, including
the establishment of a policy framework and the adoption of temporary special
measures, to eliminate discrimination against minority women. To this end, the
Committee urges the State Party to appoint minority women representatives to
decision-making bodies. The Committee reiterates its previous request
(A/58/38, para. 366) that the State party include information on the situation of
minority women in Japan, especially with regard to education, employment,
health, social welfare and exposure to violence, in its next periodic report. In
this context, the Committee calls upon the State party to conduct a
comprehensive study on the situation of minority women, including indigenous
Ainu, Buraku and Zainichi Korean and Okinawa women.
Vulnerable groups of women
53. The Committee notes the lack of information and statistics about vulnerable
groups of women, particularly rural women, single mothers, women with
disabilities, refugees and migrant women who often suffer from multiple forms of
discrimination, especially in regard to access to employment, health care, education
and social benefits.
54. The Committee requests the State party to provide, in its next report, a
comprehensive picture of the de facto situation of vulnerable groups of women
in all areas covered by the Convention, and information on specific
programmes and achievements. The Committee calls upon the State party to
adopt gender-specific policies and programmes that would cater to the specific
needs of vulnerable groups of women.
Beijing Declaration and Platform for Action
55. The Committee urges the State party to continue to utilize, in
implementing its obligations under the Convention, the Beijing Declaration and
Platform for Action, which reinforce the provisions of the Convention, and
requests the State party to include information thereon in its next periodic
report.
Millennium Development Goals
56. The Committee emphasizes that full and effective implementation of the
Convention is indispensable for achieving the Millennium Development Goals.
It calls for the integration of a gender perspective and explicit reflection of the
provisions of the Convention in all efforts aimed at the achievement of the
Goals, and requests the State party to include information thereon in its next
periodic report.
Ratification of other treaties
57. The Committee notes that States’ adherence to the nine major
international human rights instruments1 would enhance the enjoyment by
women of their human rights and fundamental freedoms in all aspects of life.
The Committee therefore encourages the Government of Japan to consider
ratifying the instruments to which it is not yet a party, namely, the
International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families and the Convention on the Rights of
Persons with Disabilities.
Dissemination
__________________
1 The International Covenant on Economic, Social and Cultural Rights, the International Covenant
on Civil and Political Rights, the International Convention on the Elimination of All Forms of
Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination
against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the Convention on the Rights of the Child, the International
Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families, the International Convention for the Protection of All Persons from Enforced
Disappearance and the Convention on the Rights of Persons with Disabilities.
58. The Committee requests the wide dissemination in Japan of the present
concluding observations in order to make the people, including Government
officials, politicians, parliamentarians and women’s and human rights
organizations, aware of the steps that have been taken to ensure de jure and
de facto equality of women and the further steps that are required in that
regard. The Committee requests the State party to strengthen the
dissemination, in particular to women’s and human rights organizations, of the
Convention, its Optional Protocol, the Committee’s general recommendations,
the Beijing Declaration and Platform for Action and the outcome of the twenty-
third special session of the General Assembly, entitled “Women 2000: gender
equality, development and peace for the twenty-first century”.
Follow-up to concluding observations
59. The Committee requests the State party to provide, within two years,
detailed written information on the implementation of the recommendations
contained in paragraphs 18 and 28 above.
Date of next report
60. The Committee requests the State party to respond to the concerns
expressed in the present concluding observations in its next periodic report
under article 18 of the Convention. The Committee invites the State party to
submit its combined seventh and eight periodic report in July 2014.
Optional Protocol
Remedying human rights violations of women across borders
– Ratify the Optional Protocol, which Protects Justice
Interviewing Ms. Patten, Member of the Committee on the Elimination of Discrimination against Women
Asahi Shimbun, June 27, 2009
There is a system, through which women, who were unable to achieve remedies for human rights violations even after going to the domestic court, can ask for support from the Committee on the Elimination of Discrimination against Women (CEDAW). Ms. Pramila Patten, a Member of the Committee, visited Japan this month, to exchange views with government officials on the Optional Protocol of the Convention, which provides for this system. Most of the developed countries have ratified it, with the exception of the United States and Japan, and it is said that in the U.S., which has not ratified the Convention itself, the government of President Obama is looking favorably to a ratification. I asked Ms. Patten on why the Optional Protocol is necessary.
(Mieko Takenobu)
– What is the Optional Protocol about?
One feature is the “communication mechanism” in which individuals and groups, who could not receive remedies for their human rights violations, even though they completed all the domestic procedures, can submit a communication to the CEDAW directly, which can examine the case and ask the government to take measures that may be necessary to solve the issue. The other is a mechanism, in which the Committee can initiate inquiries into grave or systematic violations of rights with the cooperation of the State Party in question.
– Could you give specific examples?
Of the 186 State Parties to the Convention, 97 have ratified the Optional Protocol, and the Committee has received many communications. One example, in which the Committee asked the government to train their civil service personnel is the case against Austria two years ago. The wife had asked the police and the courts for help from her husband’s violence, but they did not detain or take any other measures against him, and she was killed. Her family submitted the communication. The system was perfect, including shelters and legal aid, but because of the response of the civil service personnel implementing it, the government was held responsible.
– Are practical remedies necessary?
The Convention is justice on paper, and the “communication mechanism” is a tool that realizes the justice through the communications from victims.
– In Japan, there is opposition to the mechanism, saying that communicating to international organizations because you are not satisfied with the results of the court case, will infringe on the independence of the judiciary.
That is based on a misunderstanding. The role of the judiciary is to implement law and not to write law. If there is a law saying women cannot wear black suits, the judge will have to decide according to the law, even when he does not agree with it. If the law is changed after the Committee’s recommendation, the judge can issue a fair judgment, and can help implement justice.
– There are some in the government, that raise concern on the budgetary measures necessary for compensation in case of government’s negligence.
Ratification of the Convention means that the government committed itself to eliminating gender discrimination. The communication mechanism was created to help government implement the commitment. If is keeping that commitment, it should not be afraid of communications or compensations.
Mauritius, my country, and Turkmenistan, the latest country to ratify the Convention, both faced resistance at first, but when I explained that there was nothing to be afraid of, when they have the commitment to achieve gender equality, they understood.
– Would the communication mechanism help Japanese women?
The Committee has consistently raised concern on the issue of the wage gap between men and women in Japan, but there has been no progress. It is of concern that the high level of education of women is not reflected in the labor market. Policies eliminating the stereotypes, saying it is all rights for women to be in low-paying jobs, are necessary. The communication mechanism can be a tool to change the domestic stereotypes through international perspectives.
Alternative report
Working Women’s Network
Shizuko Koedo. Chairperson
1-5-6-403 Ootemae Chuo-ku, Osaka, 540-0008 Japan
Tel & Fax +81-(0)6-6941-8700
Email: ks44@ares.epnet.me.jp
URL: http://wwn-net.org/
June 4 2009
To: The Committee on the Elimination of Discrimination against Women
Alternative Report
Presented by
Working Women’s Network ( Japan )
The Working Women’s Network (WWN) is sending herewith the Alternative report on Article 11 regarding employment, describing the real situation about the working women in Japan.
In this report, we present four important proposals to promote gender equality in the workplace. In particular, we ask you to take note of the fact that the “employment management category” in the Guideline under the Equal Employment Opportunity Law is providing a leeway for companies to introduce the track-based system, which constitute indirect discrimination, and is hindering the achievement of equality for many women.
Alternative Report
For the examination of the report of Japan at the 44th session of CEDAW
Article 11: Elimination of Discrimination in Employment
(b) The right to the same employment opportunities, including the application of the same criteria for
selection in matters of employment.
(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work.
Working Women’s Network (WWN) requests the government of Japan to comply with and implement the Convention on the Elimination of All Forms of Discrimination against Women and presents its report on the situation of working women and proposals for promoting equality for men and women. We request that the Committee engage in vigorous discussions with the Japanese government in the 44th session on legal and other measures to eliminate discrimination in employment and to raise the issue in the concluding recommendations as well as consider it as a matter for the follow-up after two years.
Proposal by WWN:
1. Deletion of the term “employment management category” in the Guideline under
the Equal Employment Opportunity Law (EEOL).
2. Include an explicit prohibition of indirect discrimination in domestic law
3．Legislation of the principle of equal pay for work of equal value
4. The need for early ratification of the CEDAW Optional Protocol
Proposal 1：Deletion of the term “employment management category” in the Guideline under the Equal Employment Opportunity Law （EEOL）
(Background)
1. Part of the Guideline under the EEOL is an obstacle to equality
The “employment management category” defined in the Guideline under the Equal Employment Opportunity Law (EEOL) leads to the concentration of women in low-paying jobs with fewer opportunities for promotion, under the pretext of difference in the kind of jobs or forms of employment. It is an obstacle to equality between men and women in Japan. This provided an opportunity for companies to introduce the career-track based personnel system, and even today, after more than 20 years since the enactment of the EEOL, the percentage of women in the career tracks leading to management positions is just 5.1%. (Ministry of Health, Labor and Welfare, 2004).
Under the Guideline, discrimination based on sex within the same types of jobs (career track jobs) is prohibited, but would not be illegal if it was between different type of jobs. Therefore, different treatment between men and women, who were deemed to be in different employment categories, would not be within the scope of the prohibition, and the employers would not be found in violation, as long as they establish different employment categories. Although the EEOL was amended in 2007, the name and substance of the category remained unchanged.
We therefore believe that the term “employment management category” in the Guideline leads to indirect discrimination, which should be deleted.
Article 5 of the EEOL prohibits discriminatory treatment based on sex in recruitment and hiring. And Article 6 does so in assignment, promotion, demotion and training, etc. We believe that Article 5 and 6 should be used. By complying with these Articles, equality for men and women in employment would be ensured, opening the way for capacity development for women.
Comparison of the EEOL and the Guideline
|
EEOL |
Guideline |
|
(Article 5) prohibition of discriminatory treatment in recruitment and hiring on grounds of sex
(Article 6) prohibition of discriminatory treatment in assignment, promotion, demotion, training, etc. on grounds of sex |
(related to Article 5) prohibition of exclusion of either men or women from recruitment and hiring, in a single employment management category (related to Article 6) prohibition of exclusion of either men or women from promotion to positions of certain levels in a single employment management category |
Proposal 2： Include an explicit prohibition of indirect discrimination in domestic law
(Background)
1.The measures constituting indirect discrimination should not be in an exhaustive list; the list should be broadened to reflect the actual situation
|
3. In its previous concluding comments (see A/58/38, sect. IV, para. 357), the Committee expressed concern about the lack of any specific definition of discrimination in the domestic legislation and recommended that a definition of discrimination against women, encompassing both direct and indirect discrimination in accordance with article 1 of the Convention, be included in the domestic legislation. Please indicate what measures the Government has taken in response to the Committee’s recommendation. |
The inclusion of the concept of indirect discrimination for the first time in Japan in the EEOL, based on the above Recommendations from CEDAW can be appreciated as progress. However, there is no explicit mention of indirect discrimination anywhere in the EEOL. It should be explicitly included in
domestic law. Also, that the scope of the prohibition is limited to the three measures in the Ministerial Ordinance shown below, is far removed from the situation of the workplace.
The three measures are (1) height, weight and physical strength requirement, (2) availability for assignment requiring relocation regarding recruitment and hiring in career track jibs and (3) requiring past experience of having been reassigned to a workplace other the current one for promotion.
As long as these measures are avoided, indirect discrimination does not come into question. There should be a broader definition on indirect discrimination instead of the current exhaustive list. At least, the four measures shown below, which the “Study Group on Policy regarding Equal Employment Opportunity for Men and Women” organized by the Ministry of Health, Labor and Welfare proposed in June 2004, should be explicitly listed as measures constituting indirect discrimination.
The Study Group had proposed seven, and the four measures should not have been excluded.
(1) requiring applicants to have certain degrees or to have graduated from certain faculties (departments) , in hiring and recruitment,
(2) requiring applicants to be registered as heads-of-household in the family register, in the application of welfare benefits or provision of family allowances
(3) difference in treatment between men and women due to advantageous treatment for regular workers (full-time workers hired for an indefinite period), substantial difference in the job content or personnel system between regular and part-time workers (as well as difference in treatment between management career-track and clerical track workers)
(4) difference in the provision of welfare benefits and family allowances between men and women due to exclusion of part-time workers
2. Hiring only women for 3 year contracts is indirect discrimination
According to the Labor Survey by the Statistics Bureau of the Ministry of Internal Affairs and Communications, the total number of people in employment was 55.23 million, of which 22.97 million were women. The number of non-regular employees was 17 million, of which 70% was women. The female employees, excluding executives, consist of 10.39 million regular employees, 1.7 million part-time employees and 2.85 million workers employed in other forms (fixed term contract workers, temporary workers, ‘dispatch’ or agency workers).
In this report, we would like to raise the issue of fixed term contract workers among the non-regular employees. Many women reluctantly choose to be non-regular workers, when they can find no regular positions available after graduating universities and colleges. But there are no remedies even under the EEOL or any other laws for dismissals after the end of fixed term contracts, such as 3 year contracts. The courts would also dismiss any claims, telling them that they had agreed to the contracts.
The situation is a revival of the early retirement system for women, which existed in companies 40 years ago. When we asked an official of the Equal Opportunity Commission in London, whether fixed term contract was indirect discrimination, the response was that it was not discrimination, as it was a contract between the person concerned and the employer. We asked about a case of a major trading company, which stopped hiring new recruits in clerical jobs and instead started to hire employees under 5 year contracts. The response then, that it was indirect discrimination, if the company hired women exclusively under 3 to 5 year contracts. The case is shown in the graph below.
(Material 1)
Excerpt from the Individual Observation concerning Equal Remuneration Convention, 1951 (No. 100) Published: 2008, Committee of Experts on the Application of Conventions and Recommendations, ILO
7. Indirect discrimination
JTUC-RENGO raised doubts as to the conformity w. The Working Women’s Network also submits that a broader definition of indirect discrimination should be applied. Recalling that in accordance with the Convention all forms of indirect discrimination in respect of remuneration should be addressed, the Committee asks the Government to provide detailed information on the application of section 7 of the EEOL and section 2 of its Enforcement Ordinance.
8. Career tracking systems.
Both JTUC-RENGO and the Working Women’s Network state that career tracking systems continue to be used in practice as gender-based employment management. They also state that the EEO Guidelines issued by the Government created an opening for this, because they restrict the application of the prohibition of gender discrimination to men and women within each “employment management category”, which excludes comparisons between men and women employed in different categories, in contradiction with the principle of equal remuneration for work of equal value.
Proposal 3： Legislation of the principle of equal pay for work of equal value
(Background)
1. What happened immediately after the EEOL amendment
Many trading companies, including Kanematsu Corp., whose wage discrimination case is pending at the Supreme Court, introduced a career track-based system after the enactment of the EEOL, and changed the existing gender-based wage system to a job-based wage system. The male employees were transferred automatically to career track jobs , while all female employees were placed under the label of clerical track jobs . Women were able to take transfer tests with recommendations from their superior officers, which was a requirement for women only, and only a few women became career track jobs employees.
2. Wage discrimination cases under the track-based system
In 1995, six women working for Kanematsu Corp., a trading company, filed suit against the wage gap, in which a 55 year old female employee could not earn more than a 27 year old male employee.
The case is in its 14th year, and is pending at the Supreme Court. The Tokyo District Court held, inexplicably, that the wage difference was in violation of the Constitution, but not public order and good morals, and the plaintiffs lost their case. At the Appeals Court, they conducted a job evaluation, based on the gender neutral procedures under the Pay Equity Act of Ontario, and the principle of equal pay for work of equal value. The results were submitted to the Court.
The plaintiffs compared and analyzed their work, and the work done by their male colleagues in the same sections. As a result, their work was valued at 111, 102, 100, 95, 92 to their male colleagues’ 100 respectively, showing that the work they did were more or less equivalent to their male colleagues work.
Meanwhile, the plaintiffs’ wages were at most 67% of the male employees in the career track jobs Some were paid only 48%. The evaluation report concluded that the wages had to be improved in proportion to the job evaluation results. The Appeals Court held that the track-based personnel system was a violation of Article 4 of the Labor Standards Act. The judgment was a ground-breaking one, although there were some parts which suggested residual gender bias of the judges.
3. The need for legislation of the principle of equal pay for work of equal value
The case of women working for the Sumitomo manufacturers, took the plaintiffs 8 to 11 years to resolve the wage gap of 240,000 yen a month, compared with their male colleagues, who had the same educational background, and who were employed in the company in the same year as the women. 14 years have passed since the beginning of the above mentioned Kanematsu case, and the plaintiffs are paying huge mental as well as economic sacrifice because of the long duration of the judicial process. If the principle of equal pay for work of equal value had been explicitly provided for in law, we believe that these cases would have been resolved much earlier.
In the workplace today, the system has already changed from the seniority based to merit based one. There is dissatisfaction even among male employees towards arbitrary evaluation by their superiors. They begin to wonder why their pay is lower than their colleagues’ leading to a decrease in motivation towards work. The principle of equal pay for work of equal value is not just a tool for redressing the wage gap between men and women, but is also an indispensable rule to realize equal treatment for non-regular workers compared with regular workers. The establishment of a fair job evaluation system and the legislation of the principle of equal pay for work of equal value is urgently needed.
We request that the Japanese government take legislative measures to provide for the principle in compliance with CONVENTION.
(Material 2)
Duration of judicial process in wage discrimination cases
|
Case |
Number of plaintiffs |
Start of process |
Conclusion of process |
Duration |
|
Nomura Securities |
13 |
1993 |
2004 |
11 years |
|
Sumitomo Electric |
2 |
1995 |
2003 |
8 years |
|
Sumitomo Chemicals |
3 |
1995 |
2004 |
9 years |
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Sumitomo Metal |
4 |
1995 |
2006 |
11 years |
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Okaya & Co. |
2 |
1995 |
2006 |
11 years |
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Kanematsu Corp |
6 |
1995 |
Pending (Supreme Court) |
Over 14 years |
(Material 3)
Excerpt from the Individual Observation concerning Equal Remuneration Convention, 1951
(No. 100) Published: 2008, Committee of Experts on the Application of Conventions
and Recommendations, ILO
4. Work of equal value.
The Committee recalls that section 4 of the Labour Standards Law, which provides that in respect of wages an employer shall not engage in discriminatory treatment of a woman, as compared to a man, by reason of the worker being a woman, does not fully reflect the principle of the Convention, because it does not refer to the element of equal remuneration for work of equal value.
5. The Committee notes that JTUC-RENGO calls for the revision of section 4 of the Labour Standards Law and the EEOL to ensure that both Laws prohibit gender-based wage discrimination. The Working Women’s Network stated that there was only one final judgement based on section 4 of the Labour Standards Law which held that the female plaintiff’s work was “work of equal value” to that of a male comparator. Highlighting the length of the equal pay proceedings, the Network argues that enforcing the principle of equal remuneration for men and women for work of equal value would be more effective if the principle was stated in the legislation.
6. The Committee therefore asks the Government to take steps to amend the legislation to provide for the principle of equal remuneration for men and women for work of equal value.
(Material 4 )
Labor Standards Act in Japan
Article 4 (Principle of equal pay for men and women)
An employer shall not engage in discriminatory treatment of a woman as compared with a man with respect to wages by reason of the worker being a woman.
Proposal 4: The need for early ratification of the CEDAW Optional Protocol
Background
Bringing a case on gender discrimination in employment to court in Japan is extremely difficult, and requires courage. Yet, there are many court cases involving gender wage discrimination other than those shown in Material 7. Because of the lack of legal clarity in the Labor Standards Act and the EEOL, as well as the judicial procedures, in which the plaintiffs themselves must prove the existence of wage discrimination, these cases can go on for more than ten years until they are concluded. In the case of the plaintiffs of the case against Kanematsu Corp., which is currently pending at the Supreme Court judgment, it has already taken 14 years, causing immeasurable troubles and efforts for the plaintiffs themselves and their families. Moreover, the Appeals Court dismissed the claims of two plaintiffs by treating the “secretarial work” as women’s work, and another for the reason that she has not worked long enough in the company.
The judgment must be seen as being gender-biased. It is urgent that Japan ratifies the CEDAW Optional Protocol. If Japan becomes party to the Optional Protocol, the judiciary will certainly have to change. If there is a judiciary that complies with the international standard that women’s rights are human rights, and is gender neutral, not only will we achieve gender equality in pay and treatment but also equal treatment between regular and non-regular workers.
(Material 5)
The track-based system in Japan is indirect discrimination
(By Koshi Endo, Professor, Meiji University)
Since the mid-1980s, seniority-based HRM for university graduates sometimes took the form of “track-based personnel management.” In the “track-based personnel management” the employer establishes two employment tracks, the career track jobs (sogo-shoku) and clerical track jobs( ippan-shoku). During campus recruiting, the employer lets the applicants choose which track they would like to apply for (self selection).
An employee in the career track has opportunities for promotion. But the employee would be required to work by the employer longer hours, and would have to transfer often anywhere in Japan or the world to different jobs according to the instructions from the employer. (Refusing an employer’s instruction is legitimate grounds for dismissal under Japanese law.)
Therefore, when a career track jobs employee marries, someone else must support the care of their children, and other matters regarding the home and neighborhood. That someone else in many cases is the spouse, or more accurately, the housewife. In other words, the career track is a track, which is sustainable, when the employee is a couple with a housewife.
Women in the career track must remain single, or if she marries, must find someone, who will support her. In many cases, this is difficult. Because this can be expected, few women apply for career track jobs Also, the minority of women, who chose career track jobs and started to work, cannot be supported by their spouses when they marry, and therefore in many cases would leave the company after marrying.
The career track, or the track-based personnel management, is a gender-neutral system on its surface,
but in substance, it is indirect discrimination.
CEDAWへWWN Lobby (Nov.10 2008)
To CEDAW Working Group
Working Women’s Network
Chairperson Shizuko Koedo
Summary of questions
Article 11 （Elimination of discrimination in the field of employment）
Question
１）“Employment Management Categories” in the GuidelinesAct under the EEOL,Doesn’t this practice ignore the CEDAW Recommendations and constitute indirect discrimination? Doesn’t this practice ignore the CEDAW Recommendations and constitute indirect discrimination?
２）The government states that Article 4 of the Labor Standards Act(Note1) encompasses the principle of equal pay for work of equal value, and therefore the legislation of the principle as recommended by ILO is not necessary. What legislative measures would be taken to implement CEDAW Article 11 (d) ?
___________________________________________________________________________________
Background
1)-1 The Guidelines under the EEOL provides for “employment management categories.” Discrimination against women is prohibited within the same categories, but if the women were placed in a different category, which may be based on characteristics such as job differences or forms of employment, difference in treatment would not constitute discrimination. The separate tracks for men and women that existed before the EEOL were redefined as different forms of employment, and this led to entrenchment and widening of the gender gap.
The employment management category based on job differences provided an opportunity for many companies to introduce the career-track based system, as shown in the data below. Also, as shown in the data below (Note2), the percentage of women in the tracks leading to management positions is still around 2-5%, 20 years after the enactment of the EEOL. (Note3),The EEOL protects the equality of a handful of women in the tracks leading to management positions, but for many women in the tracks for clerical positions, the promise of equal training and promotion remains empty words.
(Note2)
Companies implementing career-track based systems (based on the size of company):
2003 (data from Ministry of Health, Labour and Welfare)
Companies with 5,000 employees or more 46.7%
Companies with1,000-4,999 employees 38.1%
Companies with 300-999 employees 23%
Companies with 100-299 employees 13.7%
Companies with 30-99 employees 5.9%
(Note 3)
Ratio of women in main career tracks 2005 (Japan Institute of Workers’ Evolution)
Companies with 5,000 employees or more 2.1
Companies with 1,000-4,999 employees 3.6
Companies with 300-999 employees 5.0
1)-2 Committee of Experts on the Application of Conventions and Recommendations, ILO, Individual Observation concerning Equal Remuneration Convention, 1951 (No. 100) Japan, Published: 2007
Given the persistent and wide gender pay gap, the Committee hopes that the Government will consider giving legislative expression to the principle of equal remuneration for men and women for work of equal value, with a view to ensuring the full application of the Convention.(para. 4)
1)-3 Committee of Experts on the Application of Conventions and Recommendations, ILO, Individual Observation concerning Equal Remuneration Convention, 1951 (No. 100) Japan, Published: 2008
The Committee therefore asks the Government to take steps to amend the legislation to provide for the principle of equal remuneration for men and women for work of equal value. (para. 6)
2) (Note1) Labor Standards Act : Article 4 (Principle of equal pay for men and women)
An employer shall not engage in discriminatory treatment of a woman as compared with a man with respect to wages by reason of the worker being a woman.
To the Members of the CEDAW Pre-session Working Group
To the Members of the CEDAW Pre-session Working Group
Article 11(Elimination of discrimination in the field of employment)
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Issues |
Questions and Backgrounds |
Gov’t Report Paras. |
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Working Women’s Network Chairperson Shizuko koedo
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Indirect discrimination
“employment management categories”
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Question 1. （1) Can the practice be considered indirect discrimination, in which most of the male employees and only a handful of female employees (note 2, Chart 1) are placed in the track leading to management positions, while most of the female employees are placed in the track consisting of clerical jobs, under the career-track based personnel system (note 1)? （2) Company A, a general trading company, and Okaya & Co. (Chart 2), a medium-sized trading company stopped hiring employees for clerical positions, and instead began hiring women for these positions for 3 or 5 year contracts. Can recruiting and hiring only women for definite term contracts be considered as being indirect discrimination? （3) The provision regarding “employment management categories” in the Guidelines under the Equal Employment Opportunity Law (EEOL) remained unchanged even after the latest amendment of the EEOL. The employers will not be responsible for discrimination against women, if men and women are placed in different employment management categories. Doesn’t this practice ignore the Recommendations from CEDAW and constitute indirect discrimination?
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286 (i)
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Background
1. The Guidelines under the EEOL provides for “employment management categories.” Discrimination against women is prohibited within the same categories, but if the women were placed in a different category, which may be based on characteristics such as job differences or forms of employment, difference in treatment would not constitute discrimination. The separate tracks for men and women that existed before the EEOL were redefined as different forms of employment, and this led to entrenchment and widening of the gender gap.
The employment management category based on job differences provided an opportunity for many companies to introduce the career-track based system, as shown in the data below. Also, as shown in the data below (note 2), the percentage of women in the tracks leading to management positions is still around 2-5%, 20 years after the enactment of the EEOL. The EEOL protects the equality of a handful of women in the tracks leading to management positions, but for many women in the tracks for clerical positions, the promise of equal training and promotion remains empty words.
2. Companies implementing career-track based systems (based on the size of company):
2003 (data from Ministry of Health, Labour and Welfare)
Companies with 5,000 employees or more 46.7%
Companies with1,000-4,999 employees 38.1%
Companies with 300-999 employees 23%
Companies with 100-299 employees 13.7%
Companies with 30-99 employees 5.9%
3. Comments from CEDAW (August 2003)
369. The Committee is concerned at the existing wage gap between women and men, 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 governmental guidelines to the Equal Employment Opportunity Law. (A/53/38)
4. Recommendation for Settlement from the Appeals Court in the Sumitomo Electric Case (December 2003) By Chief Justice Toshio Igaki, Osaka Appeals Court
Efforts towards achieving equality between the sexes have been making steady progress in the
international community, mainly through the United Nations initiatives. A society, in which women are not discriminated against on grounds of their sex, in which they can develop their abilities and capacities for their own fulfillment as well as that of the whole society, and in which men and women can work together in social development, is, in the current common international understanding, a truly equal society.
The Constitution of Japan proclaims the dignity of the individual and the equality under the law. Our country has, in keeping with the international trends, taken steady steps towards establishing the spirit of equality in the society, such as by the ratification of the International Convention on the Elimination of All Forms of Discrimination against Women (1985) and the legislation of the Basic Law for Gender Equal Society (1999). On the other hand, the stereotypical view of gender roles still firmly entrenched in parts of society remains a major obstacle in achieving equality between the sexes.In the area of employment, the Law on Equal Opportunity and Treatment Between Men and Women in Employment (the former Equal Employment Opportunity Law) legislated in 1980 was amended in 1996 (entry into force in April 1999; the amended Equal Employment Opportunity Law). The latter required employers to provide equal opportunity to women as well as men in matters of recruitment and hiring,
and prohibited discriminatory treatment in assignment, promotion, etc.
These reforms were achieved step by step in the movement towards elimination of sex discrimination, and all women have a right to enjoy the outcome. It must be borne in mind, that to tolerate the vestiges of discrimination based on past social understandings would result in turning one’s back to the progress in the society. Moreover, at present, sufficient consideration must be given to not only direct but also indirect discrimination.
(Note 1)
Response by a government official to the question regarding career-track based personnel system, raised
during the Diet session in April 2006, in which the draft amendment of the EEOL was discussed.
Career-track based employment management is a system in which the company establishes a number of
career-tracks based on the contents of the work, such as planning or routine work, or on availability for
transfers requiring change of residence, and managing employment by assigning different placements,
promotion, or training for each track. Typically, there would be a track for main career jobs, the core work in the company, or work involving planning or negotiations, which require comprehensive decision-making, and with transfers requiring change of residence. Another would be a track for mainly routine work, without transfers requiring change of residence. Some employers introduce tracks, such as those for work similar to those in the core work tracks, but do not include transfers requiring change of residence, in managing employment.
(Note 2) Ratio of women in main career tracks 2005 (Japan Institute of Workers’ Evolution)
Companies with 5,000 employees or more 2.1
Companies with 1,000-4,999 employees 3.6
Companies with 300-999 employees 5.0
(Chart 1)
（Chart 2)
Okaya & Co., (trading company in Nagoya) * Hiring women for these positions for 3 or 5 year contracts.
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7 cases listed for indirect discrimination
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Question 2 In June 2004, the Policy Study Group on Equal Employment Opportunity for Men and Women requested by he Ministry of Health, Labour and Welfare to study the issue of indirect discrimination listed 7 cases that could be considered as being indirect discrimination in its report. In the amended EEOL and the Ministerial Order, however, only 3 of the cases (note 3) were listed in an exhaustive list, and the remaining 4 (note 4) were not included. Why were the 4 cases excluded ? |
286(ii) |
Background
In response to questions during the Diet session, in which the EEOL was discussed, the government stated that in Japan there were few court cases dealing with indirect discrimination, and no social consensus on what constitutes indirect discrimination.
During the examination of the 4th and 5th Government Report to CEDAW in 2003, a CEDAW Member,
Ms. Schöpp-Schilling, indicated that the Japanese government may be placing too much importance on social consensus; that the Convention was designed to change the social system and practice, and that the government should take a more positive attitude in taking a leading role. It should not wait for a consensus to form, but should be aware that the law can change society.
(Note 3) 3 cases included in the Ministerial Order as examples of indirect discrimination
1) Height, weight or physical strength requirement in recruitment and hiring
2)Mobility requirement, requiring the availability to be transferred anywhere within the country, in recruitment and hiring for the main career track under the career-track based employment category system
3) Requirement for promotion, of having experience of being transferred from one workplace to another
(Note 4) 4 cases not included in the Ministerial Order as examples of indirect discrimination
1)Requirement of a certain academic degree or having graduated from a certain faculty, in recruitment and hiring
2)Head-of-household requirement in application of benefits and provision of family allowances
3)Difference in treatment between men and women, resulting from advantageous treatment to full-time employees. Difference in work content, personnel system and management between full-time and part-time workers
4.)Difference between men and women, resulting from the exclusion of part-time workers from the application of welfare benefits and provision of family allowances.
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Question 3 According to the report published by the Ministry of Health, Labour and Welfare on May 30 on the implementation status of the EEOL, the Equal Employment Policy Division received 462 cases of consultation on indirect discrimination. What types of cases were included, other than the 3 cases adopted in the exhaustive list in the Ministerial Order? |
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Background
1.The response by the government on June 14, 2008 during the Diet session, in which the draft amendment of the EEOL was discussed Regarding the Ministerial Order, if the Equal Employment Policy Division came across cases, which may appropriately be considered as indirect discrimination, during its consultation work, it would provide an opportunity to review the Order. The government will deal with the matter appropriately without falling behind to keep up with the actual situation in the workplace.
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Legislative measures for the principle of equal pay for work of equal value
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Question 4 The government states that Article 4 of the Labor Standards Act(Note1) encompasses the principle of equal pay for work of equal value, and therefore the legislation of the principle as recommended by ILO is not necessary. But as shown below, it is not clear whether Article 4 actually covers the principle. Please clarify how the principle is included in the Article. Also, what legislative measures would be taken to implement CEDAW Article 11 (d) ? |
317 |
(Note1)
Labor Standards Act Article 4 (Principle of equal pay for men and women)
An employer shall not engage in discriminatory treatment of a woman as compared with a man with respect to wages by reason of the worker being a woman.
Background
1. CEDAW Article 11 (d)
the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work
2.Committee of Experts on the Application of Conventions and Recommendations, ILO, Individual Observation concerning Equal Remuneration Convention, 1951 (No. 100) Japan, Published: 2007
Given the persistent and wide gender pay gap, the Committee hopes that the Government will consider giving legislative expression to the principle of equal remuneration for men and women for work of equal value, with a view to ensuring the full application of the Convention.(para. 4)
3.Committee of Experts on the Application of Conventions and Recommendations, ILO, Individual Observation concerning Equal Remuneration Convention, 1951 (No. 100) Japan, Published: 2008
The Committee therefore asks the Government to take steps to amend the legislation to provide for the principle of equal remuneration for men and women for work of equal value. (para. 6)
4. Generally, in the workplace, men and women do not do the same work, therefore, it is difficult to rely on Article 4 of the Labor Standards Act to narrow the wage gap between a male employee in the main career track and a female employee in the clerical track. It is clear that if the principle of equal remuneration for work of equal value had been legislated into law, the judicial process in cases of wage discrimination would not have taken 10 to 13 years, such as in the cases of the Sumitomo companies and Kanematsu.
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Job evaluation
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Question 5 The government states that job evaluations are not appropriate for the employment customs in Japanese companies. However, the Japanese practice of employees working for a single company throughout his/her career has deteriorated, and the employment system has changed to one based on meritocracy. The creation of an objective evaluation system that is gender neutral is urgently needed, to replace the arbitrary and unfair evaluation conducted by the senior officers of a company. Such a system would be effective not only for the narrowing of the wage gap between men and women but also between ‘regular’ and ‘non-regular’ employees. What is the government’s view on this?
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318 |
Background
1.Committee of Experts on the Application of Conventions and Recommendations, ILO, Individual Observation concerning Equal Remuneration Convention, 1951 (No. 100) Japan, Published: 2007
Recalling that one of the matters addressed by the guidelines is the need to improve employment and wage-management systems, inter alia, with a view to ensuring objectivity and transparency of wage decisions, the Committee notes JTUC-RENGO’s position that, in order to implement the principle of equal remuneration for work of equal value, there is a need to study and develop measures of objective and non-discriminatory job evaluation. (para. 6)
2. Committee of Experts on the Application of Conventions and Recommendations, ILO, Individual
Observation concerning Equal Remuneration Convention, 1951 (No. 100) Japan, Published: 2008
The Committee wishes to emphasize that the principle of equal remuneration for men and women for work of equal value necessarily implies a comparison of the jobs or work performed by men and women on the basis of objective factors such as skills, effort, responsibility, or working conditions. (para. 6)
3. The chart below shows the results of a job evaluation used by the plaintiffs in the Kanematsu case. It compares the work done by the plaintiffs and their male colleagues in the same section. In Ms. Oda’s case for example, she is paid 63 to her male counterpart’s 100, but as a result of the job evaluation, her work was evaluated at 102 to her male counterpart’s 100. The case demonstrates that job evaluation is possible even under the Japanese career-track based personnel system.
4. Kanematsu wage discrimination case In 1985, after the enactment of the EEOL, Kanematsu Corporation introduced a career-track based personnel system.
The male employees were placed automatically in the main career track, and women in the clerical track. The wage gap was such that a 45 year old female employee would be earning less than a 27 year old male employee. Several female employees filed suit in 1995 in the Tokyo District Court, and in 2008, won a partial victory in the Tokyo Appeals Court, which decided that the career-track based system violated Article 4 of the Labor Standards Act.
Because there is no system of job evaluation in Japan, the above chart was prepared by a group of academic experts and women working in trading companies. The group used the job evaluation system used in Ontario,
Canada, to compare the work of the plaintiffs and their male colleagues in the same sections. This is the second case, in which the plaintiffs won, using the job evaluation system. The first was the Kyo Gas wage discrimination case in 2001, which used the same method.
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Equality of results
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Question 5 Is the objective of the EEOL to achieve equality of opportunity and not of results ? Does the government share the same view with Nippon Keidanren shown below ? (Example 1. )
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(Example 1.)
In June 2006, during the Diet session, in which the amendment of the EEOL was being discussed, the
representative from Nippon Keidanren made the following statement as a witness. “In discussing the draft amendment bill, discussion was conducted from the perspective that the EEOL was designed to achieve equality of opportunity and not of results.”
(Example 2.)
In 1994, women working for Sumitomo manufacturing companies, including Sumitomo Electric Industries, applied for mediation at the (former) Osaka Young People and Women’s Bureau. Their complaint was that they were earning 240,000 yen less in a month, compared with the male employees, who had the same academic backgrounds (senior high school graduates), who started working for the company in the same year as they did, and who had been promoted to section chiefs at the time of the complaint. But the Bureau dismissed their applications, on the grounds that the male and female employees were hired in different hiring categories, and therefore the EEOL did not apply. In 1995, the women filed suit against not just their employers but also against the government. During the judicial process, the government submitted a preparatory document in February 1996. It stated that the EEOL
required the same objective conditions for men and women in providing opportunities in placement and promotion, as well as promotion, but it was apparent that it did not require the same results for men and women.
Background
1. General Recommendation 25, Temporary Special Measures, CEDAW
In the Committee’s view, a purely formal legal or programmatic approach is not sufficient to achieve women’s de facto equality with men, which the Committee interprets as substantive equality. (para. 8)
Equality of results is the logical corollary of de facto or substantive equality. (para. 9)
2. The grounds for not initiating mediation in the Sumitomo Electric Industries case
The male employees selected by the plaintiffs as comparators, had belonged to a different job category (expert jobs), even prior to their promotion to management positions. Before transferring to expert job positions, the plaintiffs were hired by the branch offices, while the male employees were hired by the main office. Therefore, because the recruitment slips, time of hiring and other conditions are different, the plaintiffs and the male employees belong to different hiring categories.
The difference in treatment in employment management due to the difference in recruitment and hiring does not fall within the scope of the EEOL. Therefore, the male employees selected by the plaintiffs as comparators cannot be used as comparators in deciding whether the treatment was unequal.
3. Preparatory document submitted by the government in the Sumitomo Electric court case,
February 14, 1996 .
The EEOL does not prohibit all discrimination against men or women in employment. The reason is, because when laws are legislated, amended or abolished, the contents should look into the future, while at the same time, should not be removed from the situation at that time. For the EEOL, it is necessary that the law consider in full, the labor situation and awareness of women workers, the employment practices of this country, working environment including working hours and other working conditions, the situation in which women bear family responsibilities such as household duties and child-raising, situation regarding improvement of conditions enabling women to manage both work and family life, and the social and economic situation of this country, including the society’s views on women’s work.
* It is apparent that the EEOL requires the same objective conditions for men and women in providing opportunities in placement and promotion as well as promotion, but does not require the same results for men and women.
* Mediation provided for in Article 15 of the EEOL is part of an administrative service to support peaceful solutions of conflicts.
THE JAPAN TIMES WWN CEDAWへ
THE JAPAN TIMES SATURDAY, OCTOBER 4,2008
Women’s group aims to narrow wage gap
Akemi Nakamura
STAFF WRITER
Inspired by the basic principle of equal pay for equal work,a group of working women in Osaka is gearing up to pressure the government to narrow the gap in wages between male and female employees.
The Working Women’s Network, a civic group formed by female workers in Osaka in1995, is putting together a report on sexual discrimination in the work place to be distributed in November to members of the U.N.Committe on the Elimination of All Forms of Discrimination against Women(CEDAW)
CEDAW, comprising 23 experts on Women’s issues from around the world, monitors the implementation of measures to eliminate discrimination against women in countries that ratified the 1979 convention on the Elimination of All Forms of Discrimination against Women, which Japan signed in 1985.
Working conditions for women have improved since the Equal Employment Opportunity Law took effect in 1986.
The equal employment law bans sexual discrimination in the workplace, but the group says the government should take additional steps to prevent indirect discrimination.
“We will point out that Japan needs to create a law to guarantee equal pay for equal jobs and establish a system to evaluate employees without gender bias,” said Shizuko Koedo, chairwoman of the group, which has 800 members nationwide.
According to the Health, Labor and Welfare Ministry, fulltime female workers in 2007 earned on average 66.9 percent of what men earned.
This gap can be attributed to the relative scarcity of women in managerial positions. Women also tend to have shorter careers with companies, often leaving when they marry or have children.
But Koedo said the wage gap is also being caused by a discriminatory dual-track career system that usually places men on the fast track to the executive suite and women on the path to low-paying clerical positions.
The system has been criticized by experts as an indirect form of discrimination against women.
If there is a law that clearly stipulates the equal pay for equal work concept and
employers evaluate workers more fairly, indirect discrimination through the dual— track system could be prevented, Koedo said.
To that end, the WWN plans to submit the report and lobby CEDAW members in Geneva in November, when they hold a working group meeting.
CEDAW requires member countries to report on working conditions for women every four years and to issue recommendations for improvements.
The sixth and latest report complied by Japan and submitted to CEDAW in April 2008 will be reviewed in New York July 2009.
In the report, the government claims that the equal pay for equal work rule has
been implemented according to Article 4 of the Labor Standard Law, which bans sexually discriminatory wages.
However, it admits there remains a wage gap between men and women and encourages employers to take action to narrow the gap.
CEDAW recommendations 2003 7
CEDAW/C/2003/II/CRP.3/Add.1/Rev.1 18 July 2003 Original: English
Committee on the Elimination of Discrimination against Women Twenty-ninth session 30 June –18 July 2003
Draft report Consideration of reports of States parties Japan
Fourth and fifth periodic reports
1. The Committee considered the fourth and fifth periodic reports of Japan at its 617th and 618th meetings on 8 July 2003.
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.
33. The Committee is concerned at the existing wage gap between women and men, 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. The Committee 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.