Can “Indirect Discrimination” be Regulated?
- Draft Bill for the Amendment of the Equal Employment Opportunity Law deliberated in the Diet
- Concerns over “Exhaustive List”
- The Practice Prohibited in Principle in Europe and in the U.S.
It is likely that a “prohibition of indirect discrimination” will be included in the Equal Employment Opportunity Law. It provides for the prohibition of practices and standards that lead to sex discrimination in effect, even when the discrimination is not directly based on sex. The draft amendment bill passed the House of Councilors at the end of last month, and currently awaits deliberation in the House of Representatives. The provision is well established in Europe and the U.S., but the noticeable aspect of the current draft provision is that it limits the indirect discrimination to three cases. Concerns have been voiced, that anything other than what has been listed would not be regulated, raising questions about its effectiveness.
Mieko Takenobu, Tomoko Adachi
On the 26th last month, Ms. Katsumi Nishimura (58), a Sumitomo Electric Industries employee requested to speak before the House of Councilors Committee on Labour, emphasized, “I felt my dignity as a human being was being deeply hurt, seeing a male colleague, who was so young he could have been my son, being able to develop his capabilities by the work he was given. I would like to see indirect discrimination banned.”
Ms. Nishimura filed suit in 1995 against her employer claiming damages for wage discrimination. Although she worked for approximately 30 years with no promotion, male employees who were hired at the same time she was reached management positions and the wage gap widened to 240,000 yen a month. After being told that, “the difference was not discrimination but the difference in career tracks,” she decided to go to court, but lost in the first instance. She agreed to settle at the appeals level, the terms of which included promotion.
Indirect discrimination occurs when a practice or standard is apparently neutral, but is disadvantageous to either women or men in effect. Explicit discrimination was banned under the 1985 Equal Employment Opportunity Law, but companies increasingly adopted the “career track-system,” in which men and women were placed in tracks and given different treatment in pay raise and promotion, or hired women as part-time workers to do the same work as regular employees. Lawsuits against such “discrimination” were filed one after the other in the 1990’s. Ms. Nishimura’s is one of them. The UN CEDAW has repeatedly recommended to the Japanese government for improvement. These were factors behind the inclusion of the indirect discrimination ban in the draft bill.
The current problem is the fact that the draft adopted the “exhaustive list” in limiting the application of the law of indirect discrimination to those set forth in the bill. According to Professor Mutsuko Asakura of the Waseda University, Graduate School, a labour law expert, indirect discrimination is prohibited in principle in the EU countries and the U.S., and decided according to the circumstances of each case. In the U.K., placing women raising children in late night or early morning shifts, or agreements to dismiss part-time workers first were found to be indirect discrimination.
In Japan, the employers’ side resisted to the introduction of the indirect discrimination ban, saying that they did not know how far it would broad the law will be applied. As a compromise, out of the 7 cases raised in the Ministry of Health, Labour and Welfare Study Group in 2004 (see box), 3 cases such as the height and weight requirement in recruitment and hiring would be identified by the ministerial order as indirect discrimination coming under administrative guidance.
Agreement on Revision after 5 years
In the discussions in the House of Councilors, the 3 opposition parties, the Democratic Party, Communist Party and the Social Democratic Party, argued for a revision of the exhaustive list system.
Statements against the draft provision continued, such as, “What happens if sexual harassment was limited to 3 cases? If suggesting going to a hotel, touching someone’s breasts, and putting up a poster of a nude figure were identified as sexual harassment, then all other forms of sexual harassment would not be prohibited and the law would be meaningless.” (Ms. Fukushima, Leader of the Social Democratic Party)
After agreeing to include in the additional provisions, a clause to review the law after 5 years, as well as adopting a decision stating that, “there are indirect discrimination other than those identified by the ministerial order,” the 3 opposition parties in the end voted for the bill.
Ms. Yoriko Kawaguchi, Member of the House of Councilors and Chair of the Special Committee on Women of the Liberal Democratic Party, spoke positively of the vote, “Almost no one knows about indirect discrimination. The inclusion of the concept in the bill will lead to publicizing it, and would be a step forward.” Ms. Yoriko Madoka, Member of the House of Councilors from the Democratic Party says, “We chose to move at least a step forward in the face of the uncompromising attitude of companies and the majority of the government parties.”
Outside of the Diet, moves to raise awareness on indirect discrimination are increasing in the private sector. “Equal – Human Rights Center for Working Women” set up an “indirect discrimination hot-line” in March. Working Women’s Network (WWN)” also published a Japanese- English DVD on experiences of women who were indirectly discriminated against, to publicize “discrimination in everyday life.”
Cases of Indirect Discrimination Raised by the Ministry of Health, Labour and Welfare Study Group Report
3 cases in the exhaustive list
Requiring certain height or weight in recruitment and hiring, even when it is not necessary to the work, placing many of the women at a disadvantage.
Requiring country-wide mobility for recruitment and hiring in management tracks, even when there are no reasonable grounds, such as transfers are necessary for management positions, placing many of the women at a disadvantage.
Requiring past experiences of transfers involving changes of residence, even when it is not related to the work, placing many of the women at a disadvantage.
Requiring certain academic background including degrees in certain faculties, even when it is not necessary to the work, placing many of the women at a disadvantage.
Head of family
Requiring recipients of welfare and family benefits to be heads of family, even when there are no limits placed on the employers’ capital, or place undue burden on the employer, placing women at a disadvantage.
Regular employee priority
Giving preferential treatment to regular employees, even when there are no differences in work content between regular and part-time employees, placing many of the women at a disadvantage.
Excluding part-time employees from welfare and family benefits, even when there are no differences in work content, placing many of the women at a disadvantage