Labor & Employment Law

Positive Action in Japan: Legal Framework & Strategies for Women’s Advancement

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read
Slide summarising Japan’s positive-action rules and Women’s Advancement Act: EEOL Article 8, mandatory action plans, gender pay-gap disclosure
TL;DR
Japan tackles gender gaps with a two-track scheme: the Equal Employment Opportunity Act allows “positive action” (targeted hiring/promotion of women), while the Women’s Advancement Act obliges firms (101+ staff) to analyse data, set goals, publish action plans and disclose gender pay gaps. US companies operating in Japan should leverage these frameworks to boost female leadership and strengthen ESG credentials.

Table of Contents

  • The Dual Approach: Anti-Discrimination and Proactive Advancement
      1. The Equal Employment Opportunity Act (EEOL) and the Scope of "Positive Action"
      2. The Women’s Advancement Act: A “Soft Law” with Strategic Bite
  • The Philosophy Behind the Women’s Advancement Act
  • "Positive Action" in Practice: Beyond Legal Allowance
  • Challenges and Considerations
  • The Path Forward: A Continuous Effort

Japan's long-standing efforts to enhance gender equality and promote women's participation in the workforce have led to a multifaceted legal and policy landscape. While direct anti-discrimination laws form the bedrock, there's a growing emphasis on proactive measures to address historical imbalances and foster environments where female talent can thrive. For U.S. companies operating in Japan, understanding the nuances of concepts like "positive action" and the mechanisms of the Act on Promotion of Women's Participation and Advancement in the Workplace is key to navigating human resources effectively and aligning with national policy directions.

This article explores these proactive approaches, distinguishing between the legally permissible "positive action" and the broader strategic initiatives encouraged by recent legislation, and considers their implications for businesses.

The Dual Approach: Anti-Discrimination and Proactive Advancement

Japan's strategy for gender equality in employment can be broadly seen as having two main streams: the prohibition of discriminatory practices and the promotion of active measures to correct existing gender gaps.

1. The Equal Employment Opportunity Act (EEOL) and the Scope of "Positive Action"

The Danjo Koyō Kikai Kintō Hō (男女雇用機会均等法), or Equal Employment Opportunity Act, primarily functions as an anti-discrimination statute, prohibiting unfavorable treatment based on gender in various aspects of employment. However, Article 8 of the EEOL specifically carves out an allowance for what is termed "positive action" (ポジティブ・アクション - pojitibu akushon).

  • What is "Positive Action" under the EEOL? This provision clarifies that measures taken by employers aimed at improving circumstances that hinder equal opportunity and treatment for women are not considered to be in violation of the Act's anti-discrimination principles. Essentially, if women are substantially underrepresented in certain roles or at certain levels within a company (typically understood as constituting less than 40% in a specific employment management category, job type, or position), employers can implement measures that are either exclusively for women or that favor women, without these actions being deemed discriminatory against men.
  • Examples of Permissible Positive Action:
    • Setting targets for and actively recruiting women for roles where they are underrepresented.
    • Preferentially hiring or promoting qualified women from a pool of candidates where a gender imbalance exists.
    • Providing leadership training or skill development programs specifically for female employees to help them advance.
    • Reviewing and revising personnel evaluation or promotion criteria to ensure they do not inadvertently disadvantage women.
  • Voluntary Nature: Crucially, under the EEOL, implementing positive action is permissible, not mandatory. Employers are not legally sanctioned for failing to undertake such measures. The law provides a legal shield for these actions rather than an obligation to perform them. The government's role is defined as providing consultation and assistance to employers wishing to implement positive action.

This "hard law" provision allowing for positive action within the EEOL sets the stage for more targeted interventions but historically relied heavily on individual corporate will. The perceived limitations of this voluntary approach, particularly in significantly moving the needle on women's representation in leadership, contributed to the development of a new legislative strategy.

2. The Act on Promotion of Women's Participation and Advancement in the Workplace (Women's Advancement Act): A "Soft Law" with Strategic Bite

Enacted in 2015 and fully implemented for a wider range of companies from April 2022 (now generally obligating companies with 101 or more employees), the Josei Katsuyaku Suishin Hō (女性活躍推進法), or Women's Advancement Act, introduced a different paradigm. Often described as a "soft law" approach, it aims to achieve its objectives not primarily through prohibitions and penalties, but by obligating companies to analyze their own situations, set public goals, create action plans, and disclose information.

  • Core Mandates of the Women's Advancement Act:
    • Situation Analysis and Problem Identification: Companies must first assess their own workforce data. This includes analyzing:
      • The percentage of women among new hires.
      • The difference in average continuous years of service between men and women.
      • The working hours of employees (including overtime).
      • The percentage of women in managerial positions.
    • Setting Numerical Targets and Formulating Action Plans: Based on this analysis, companies are required to formulate a concrete "General Employer Action Plan" (Ippan Jigyōnushi Kōdō Keikaku). This plan must include one or more numerical targets related to improving women's participation (e.g., increasing the ratio of female hires, reducing the gender gap in tenure, increasing the percentage of female managers). The plan must also outline specific initiatives and timelines to achieve these targets.
    • Internal Communication and Public Disclosure of Action Plans: These action plans must be communicated to all employees (including non-regular staff) and made publicly available, often through the company's website or a government-run database.
    • Public Disclosure of Women's Participation Data: Beyond the action plan itself, companies are required to publicly disclose specific data points related to women's participation and career advancement. The items for disclosure can be selected from categories such as:
      • Opportunities provided to female workers (e.g., ratio of female hires, ratio of women in management).
      • Development of an employment environment conducive to balancing work and family life (e.g., average overtime hours, childcare leave uptake rates).
      • A significant recent addition (from July 2022 for companies with 301+ employees) is the mandatory disclosure of the gender pay gap. This is calculated based on the average annual wages of male regular employees versus female regular employees, and also separately for non-regular employees.
    • Notification to Labor Bureaus: Companies must notify the relevant prefectural Labor Bureau of their action plan.
  • The "Eruboshi" Certification System: To incentivize and recognize companies that are excelling in promoting women, the Act established the "Eruboshi" (えるぼし, meaning "L-Star" – for Leading, Lady, Labour) certification system. Companies can receive certification at different levels based on their performance against set criteria (e.g., hiring, continued employment, working hours, managerial ratio, diverse career courses). A higher-tier "Platinum Eruboshi" certification exists for companies demonstrating exceptional and sustained commitment. This certification can be used in corporate branding, public relations, and may offer advantages in public procurement.

The Philosophy Behind the Women's Advancement Act: From Prohibition to Proactive Engagement

The Women's Advancement Act represents a strategic shift. While the EEOL focuses on prohibiting discrimination (a "don't do this" approach), the Women's Advancement Act emphasizes a "do this" approach by requiring companies to actively engage in a cycle of self-assessment, goal-setting, action, and transparency.

The underlying philosophy is that:

  1. Data-Driven Insights: Requiring companies to collect and analyze their own data on female employment is intended to make gender disparities more visible and to provide an objective basis for identifying specific challenges within the organization.
  2. Tailored Solutions: Instead of a one-size-fits-all mandate, companies develop their own action plans, allowing for initiatives that are tailored to their specific industry, size, and circumstances.
  3. Transparency as a Lever: Public disclosure of targets, plans, and actual performance (including the gender pay gap) creates a degree of public accountability and allows for benchmarking. It can influence a company's reputation among potential employees, investors, and consumers.
  4. Fostering Internal Change: The process of developing and implementing an action plan is intended to stimulate internal conversations and drive changes in corporate culture, working practices, and management attitudes that may have traditionally hindered women's advancement. This is seen as a way to address the "male-centric work styles" (dansei chūshin no hatarakikata) that are often cited as barriers.

The Act aims to move beyond simply ensuring equal treatment for women who can conform to existing (often male-oriented) work patterns. Instead, it encourages a re-evaluation of those work patterns themselves and the creation of more inclusive environments where a diverse range of talent can succeed.

While the EEOL provides the legal basis for specific positive action measures, the Women's Advancement Act broadens the concept by encouraging a wider range of proactive initiatives within the framework of a company's overall strategy for female empowerment.

The focus extends to:

  • Expanding Women's Occupational Fields: Actively placing women in departments or roles where they have historically been underrepresented (e.g., technical fields, sales). This might involve reviewing job requirements to remove unintentional biases or providing targeted training.
  • Reforming Work Styles and Environments: Implementing measures that benefit all employees but particularly support those with family responsibilities, such as:
    • Promoting flexible working arrangements (flextime, remote work).
    • Reducing excessive overtime.
    • Enhancing childcare and family care support systems (e.g., on-site daycare, promoting male uptake of childcare leave).
    • Creating a workplace culture that is supportive of work-life balance.
  • Career Development and Leadership:
    • Providing mentorship and sponsorship programs for women.
    • Ensuring performance evaluation and promotion systems are fair and transparent.
    • Actively identifying and developing female talent for leadership pipelines.

The idea is that true advancement requires not just opening doors for women but also addressing the systemic factors that may have previously held them back or led to attrition.

Challenges and Considerations

Despite these legislative efforts, the journey toward substantive gender equality in Japanese workplaces faces several persistent challenges:

  1. Cultural Inertia and Unconscious Bias: Deep-seated traditional gender role expectations can still influence workplace dynamics, career expectations, and evaluation processes. Unconscious bias can affect hiring, assignments, and promotions, even in companies with formal equality policies.
  2. The "Pipeline" Problem: While efforts are being made to increase female representation in management, there's often a "leaky pipeline" where women drop out of the workforce or leadership tracks, often due to difficulties in balancing work with family responsibilities in demanding work environments.
  3. Effectiveness of "Soft Law": The Women's Advancement Act's reliance on voluntary targets and public disclosure means its impact can vary significantly between companies. While transparency creates pressure, it doesn't guarantee ambitious targets or effective implementation if a company's underlying commitment is weak. There's an ongoing debate about whether stronger enforcement mechanisms or more prescriptive requirements are needed.
  4. Beyond Numbers – Quality of Roles: Simply increasing the number of women in certain positions doesn't automatically equate to genuine empowerment if those roles lack real influence or opportunity for further advancement. Ensuring that women are in positions of substantive responsibility is crucial.
  5. Work-Life Balance Realities: As discussed in the context of the Childcare and Family Care Leave Act, creating truly supportive environments where both men and women can take leave and manage family responsibilities without career penalties is an ongoing struggle. The long-hours culture, though being addressed, remains a significant hurdle.
  6. Reluctance Among Women for Management Roles: Some studies and company experiences indicate that some women may be hesitant to take on managerial roles due to perceived difficulties in balancing such positions with family life, or a lack of visible female role models in senior positions. Addressing this requires tackling the systemic issues that make such roles seem incompatible with other life commitments.

The Path Forward: A Continuous Effort

Japan's approach to unlocking female talent through "positive action" and broader women's advancement policies is a dynamic and evolving process. The legal framework, particularly with the Women's Advancement Act, has created new mechanisms for encouraging corporate change. However, legal reforms alone are insufficient.

Sustained progress will require:

  • Strong Leadership Commitment: Genuine commitment from top management to drive cultural change and champion gender diversity.
  • Data-Driven Iteration: Continuously monitoring progress, analyzing data (including the now-mandatory gender pay gap disclosures), and refining action plans based on what works.
  • Addressing Systemic Barriers: Moving beyond individual measures to tackle systemic issues embedded in work styles, evaluation systems, and corporate culture.
  • Engaging Men as Allies: Promoting men's active participation in childcare and fostering a workplace culture where both genders feel supported in balancing work and family.
  • Sharing Best Practices: Learning from companies, both domestic and international, that have successfully implemented effective diversity and inclusion initiatives.

For U.S. businesses in Japan, aligning with these national policy directions is not just about legal compliance. It's about recognizing that fostering an environment where female talent is actively developed and advanced is essential for long-term business success, innovation, and competitiveness in the Japanese market. By understanding both the legal framework for positive action and the strategic imperatives of the Women's Advancement Act, companies can better position themselves to attract, retain, and empower a diverse and high-performing workforce.