What Legal Recourse Exists Against Racial Discrimination in Japan, and How Can Companies Promote Diversity and Inclusion Effectively?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

The principle of non-discrimination on the basis of race is a cornerstone of international human rights law and a fundamental tenet of just societies. As Japan experiences increasing ethnic and cultural diversity due to globalization and demographic shifts, the issue of racial discrimination and the effectiveness of legal remedies against it have garnered greater attention. For businesses operating in Japan, understanding the legal landscape and proactively fostering diversity and inclusion are not only ethical imperatives but also crucial for success in an evolving societal context. This article examines the available legal recourse against racial discrimination in Japan and explores strategies for companies to effectively promote diversity and inclusion.

Japan is a party to several international human rights treaties that prohibit racial discrimination, most notably:

  • The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD): Ratified by Japan in 1995, ICERD is the primary international treaty dedicated to combating racial discrimination.
    • Definition (Article 1): ICERD defines racial discrimination broadly as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."
    • Core Obligations: States Parties undertake to condemn racial discrimination and pursue policies of eliminating it in all its forms (Article 2). They are obliged to ensure that all public authorities and public institutions act in conformity with this obligation and to prohibit racial discrimination by any persons, group, or organization. Article 5 enumerates a wide range of rights to be enjoyed without distinction as to race, colour, or national or ethnic origin, including rights to equal treatment before tribunals, security of person, political rights, civil rights (such as freedom of movement and residence, right to marry, right to own property), and economic, social, and cultural rights (such as rights to work, housing, public health, education, and cultural activities).
    • Condemnation of Hate Speech and Organizations (Article 4): This article calls on States Parties to condemn all propaganda and all organizations based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form. It specifically obligates states to declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof. Japan, upon ratification, made a reservation concerning Article 4(a) and (b), stating that it would fulfill these obligations "to the extent that the obligations are compatible with the guarantee of the right to freedom of assembly, association and expression and other rights under the Constitution of Japan." This reservation has been a point of discussion with the UN Committee on the Elimination of Racial Discrimination (CERD).
    • Effective Protection and Remedies (Article 6): States Parties must assure to everyone within their jurisdiction effective protection and remedies, through competent national tribunals and other State institutions, against any acts of racial discrimination which violate their human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
  • Other Treaties: The International Covenant on Civil and Political Rights (ICCPR, Articles 2(1) and 26) and the International Covenant on Economic, Social and Cultural Rights (ICESCR, Article 2(2)) also contain strong non-discrimination clauses that include race and national origin.

Constitutional Protection

Article 14, Paragraph 1 of the Constitution of Japan provides a foundational guarantee of equality: "All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin." This provision is a cornerstone for challenging discriminatory practices. Courts have interpreted "race" in this context, and the principle applies to both state actions and, indirectly, to private conduct that is deemed contrary to public order and good morals.

Absence of Comprehensive National Anti-Discrimination Law

Despite the constitutional guarantee and international obligations, Japan currently lacks a single, comprehensive national law that specifically prohibits racial discrimination across all spheres of life (e.g., employment, housing, access to goods and services) and establishes dedicated enforcement mechanisms or remedies. This absence has been a consistent point of concern raised by UN human rights treaty bodies, including the CERD Committee, which has repeatedly recommended that Japan enact such legislation.

Specific Laws and Measures

While a general anti-discrimination law is absent, some specific legal avenues and measures exist:

  1. The Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior Against Persons Originating from Outside Japan (Hate Speech Elimination Act): Enacted in 2016 (Honpō Gaishusshinsha ni Taisuru Futōna Sabetsuteki Gendō no Kaishō ni Muketa Torikumi no Suishin ni Kansuru Hōritsu), this law was a response to growing concerns about racist demonstrations and hate speech, particularly targeting ethnic Korean residents in Japan.
    • Scope: It defines "unfair discriminatory speech and behavior against persons originating from outside Japan" and declares such conduct intolerable. It primarily targets hate speech directed at individuals lawfully residing in Japan who originate from outside Japan, and their descendants.
    • Nature: Importantly, the Act is primarily an advocacy and educational measure. It does not directly prohibit hate speech with criminal penalties or establish specific civil remedies for victims. Instead, it places responsibility on the national and local governments to implement measures to eliminate such discrimination, such as providing consultation, education, and awareness-raising.
    • Limitations: While a symbolic step, its lack of direct prohibition and penalties has led to criticism regarding its effectiveness in curbing hate speech. Some local governments (e.g., Kawasaki City) have subsequently enacted their own ordinances with more specific prohibitions and, in some cases, potential penalties for repeated, egregious hate speech.
  2. Employment-Related Laws: While there's no explicit prohibition of racial discrimination in hiring under the Labor Standards Act, Article 3 of this Act prohibits discriminatory treatment in wages, working hours, and other working conditions based on nationality, creed, or social status. Discriminatory dismissal based on race could also be challenged as an abuse of the right to dismiss under the Labor Contract Act. However, proving discrimination in hiring remains a significant challenge.
  3. Civil Code (Tort Law): Victims of racial discrimination have most commonly sought redress through Japan's Civil Code, specifically:
    • Article 709 (Liability for Unlawful Act - Tort): This general provision allows individuals to claim damages if their rights or legally protected interests are infringed by an intentional or negligent unlawful act.
    • Article 90 (Public Order and Good Morals): Discriminatory acts can be deemed contrary to public order and good morals, rendering them unlawful.
      Courts have often used these provisions, in conjunction with the constitutional principle of equality (Article 14) and Japan's obligations under ICERD, to provide remedies in specific cases.

Landmark Case: The Otaru Onsen (Public Bathhouse) Case

A significant judicial precedent is the Sapporo District Court judgment of November 11, 2002, in the Otaru Onsen case.

  • Facts: A public bathhouse in Otaru, Hokkaido, posted a sign stating "JAPANESE ONLY" and refused entry to individuals it perceived as "foreign," including a naturalized Japanese citizen of foreign descent and a foreign national (a U.S. citizen). The plaintiffs sued the bathhouse operator and the City of Otaru for damages.
  • Ruling: The court found that the bathhouse's policy of excluding individuals based on their race or appearance constituted unlawful racial discrimination and a tort under Article 709 of the Civil Code. Crucially, the court referenced Article 14 of the Constitution and Japan's obligations under ICERD as interpretive guides in determining the unlawfulness of the discriminatory act in the private sphere. It ordered the bathhouse operator to pay damages to the plaintiffs. The claim against the City of Otaru (for failing to take adequate measures against such discrimination) was dismissed.
  • Significance: This case was groundbreaking as it explicitly recognized that racial discrimination by a private business providing services to the public can be illegal and subject to compensation. It affirmed the role of ICERD in interpreting domestic law, even in disputes between private parties.

However, not all cases have yielded similar outcomes. For instance, a Tokyo High Court case in 2002 concerning a golf club's refusal of membership to a foreign national on grounds of nationality did not find the refusal illegal. The court considered Japan's reservation to Article 4 of ICERD (relating to freedom of association) and suggested that ICERD might not directly apply to regulate purely private contractual relationships in all circumstances, contrasting with the Otaru case's focus on a business open to the general public.

Individuals facing racial discrimination in Japan may consider the following avenues for redress:

  • Civil Lawsuits: As seen in the Otaru case, filing a lawsuit under the Civil Code to seek monetary damages for emotional distress and other losses, and potentially an injunction to cease discriminatory practices.
  • Mediation and Conciliation: Some local governments have human rights commissions or consultation services that may offer mediation or conciliation for discrimination complaints. Bar associations may also provide such services.
  • Human Rights Organs of the Ministry of Justice: The Civil Liberties Bureau of the Ministry of Justice and its local offices (Legal Affairs Bureaus) are tasked with protecting human rights. Individuals can file complaints about human rights violations, including racial discrimination. These bodies can conduct investigations, provide advice, issue recommendations to alleged violators, or refer cases to prosecution if a crime is involved. However, their powers are primarily persuasive and educational rather than coercive, and they cannot issue legally binding orders for remedies or compensation in most discrimination cases.

Challenges in Seeking Legal Recourse:

  • Burden of Proof: Demonstrating that an adverse action was taken because of race or ethnicity can be very difficult.
  • Lack of Strong Enforcement and Sanctions: Without comprehensive anti-discrimination legislation, remedies are often limited to damages for torts, which may not be substantial enough to act as a strong deterrent. There are generally no punitive damages in Japan.
  • Awareness and Access: Victims may be unaware of their rights or the available avenues for recourse, or they may face language barriers or financial constraints in pursuing legal action.

Corporate Strategies for Promoting Diversity and Inclusion (D&I)

For businesses operating in Japan, fostering diversity and inclusion is not just a matter of legal compliance but a strategic imperative for innovation, talent attraction, and market relevance. Effective strategies include:

  1. Explicit Leadership Commitment: D&I initiatives must be driven from the top. Leaders should visibly champion diversity, set clear expectations, and allocate resources.
  2. Comprehensive Anti-Discrimination and Equal Opportunity Policies: Develop and disseminate clear, robust internal policies that explicitly prohibit discrimination based on race, ethnicity, nationality, and other protected characteristics in all aspects of employment (recruitment, hiring, training, promotion, compensation, performance evaluation, termination) and in dealings with customers and suppliers.
  3. Education and Unconscious Bias Training: Conduct regular training for all employees, especially managers and those involved in hiring, to raise awareness about racial and ethnic diversity, cultural sensitivity, the impact of unconscious biases, and the company's D&I policies.
  4. Inclusive Recruitment and Promotion Practices:
    • Broaden recruitment channels to reach diverse talent pools.
    • Ensure job descriptions and selection criteria are objective, job-related, and free from bias.
    • Implement blind resume reviews or diverse interview panels to mitigate unconscious bias.
    • Establish transparent and equitable promotion processes.
  5. Creating an Inclusive Workplace Culture:
    • Foster a workplace environment where all employees feel respected, valued, included, and have an equal opportunity to succeed.
    • Support the establishment of Employee Resource Groups (ERGs) or Diversity Networks for employees from different ethnic or national backgrounds.
    • Provide language support, cross-cultural communication training, and mentorship programs to help foreign national employees integrate smoothly.
    • Celebrate cultural diversity through internal events and initiatives.
  6. Effective Grievance and Reporting Mechanisms: Establish accessible, confidential, and credible internal channels for employees to report incidents of discrimination or harassment without fear of retaliation. Ensure prompt and fair investigation of complaints.
  7. Supplier Diversity and Ethical Conduct: Extend D&I principles to the supply chain by encouraging partnerships with diverse suppliers and ensuring that key suppliers also adhere to non-discriminatory practices.
  8. Data Collection, Monitoring, and Transparency: Where legally permissible and culturally appropriate, collect data on workforce diversity to understand current demographics, identify areas for improvement, set realistic D&I goals, and track progress. Transparency about D&I efforts and outcomes can build trust.
  9. Community Engagement: Engage with and support local community organizations and initiatives that promote multicultural understanding and combat racial discrimination.

The Business Case for D&I

Promoting diversity and inclusion is not just the "right thing to do"; it also makes good business sense. Diverse teams are often more innovative and better at problem-solving. An inclusive culture can lead to higher employee engagement, productivity, and retention. Companies known for their D&I commitment are often more attractive to top talent and can better connect with an increasingly diverse customer base and global market.

Conclusion

While Japan's Constitution provides a fundamental guarantee of equality, and international conventions like ICERD impose clear obligations, the legal framework for seeking recourse against racial discrimination has relied heavily on general civil law provisions and judicial interpretation, in the absence of comprehensive national anti-discrimination legislation. The 2016 Hate Speech Elimination Act was a step towards addressing certain manifestations of discrimination, but broader legal protections remain a subject of ongoing discussion.

Landmark cases like the Otaru Onsen judgment demonstrate that courts are willing to find racial discrimination by private entities unlawful, often drawing on international human rights norms as interpretive aids. However, challenges in proving discrimination and accessing effective remedies persist.

For businesses, proactively combating racial discrimination and fostering a genuinely diverse and inclusive environment is paramount. This requires not only compliance with existing laws but also a deep commitment from leadership, the implementation of robust internal policies and practices, and a continuous effort to cultivate a culture of respect and belonging for all. Such efforts are essential for ethical corporate citizenship, attracting and retaining talent, and ultimately, for achieving sustainable business success in an increasingly diverse and interconnected world.