Workplace Harassment in Japan (Sexist and Power Harassment): Prevention, Corporate Responsibility, and Legal Recourse

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

Workplace harassment, encompassing sexual harassment (セクハラ - sekuhara) and power harassment (パワハラ - pawahara), is a serious issue in Japan, recognized for its detrimental impact on employee well-being, morale, and overall workplace productivity. Japanese law imposes significant obligations on employers to prevent such conduct and holds both individual harassers and companies accountable when it occurs. Understanding this legal framework is crucial for businesses operating in Japan to foster a respectful and legally compliant work environment.

Defining Workplace Harassment in Japan

While various forms of harassment exist, sexual harassment and power harassment are two of the most prominently addressed in the Japanese legal and employment context.

1. Sexual Harassment (Sekuhara):
Sexual harassment is generally understood as unwelcome sexual speech or conduct that creates a hostile or offensive working environment, or results in disadvantageous employment conditions for the victim due to their reaction to such conduct. This can include a wide array of behaviors, from explicit sexual advances and demands to offensive jokes, comments about physical appearance, displaying sexually suggestive materials, or unwelcome physical contact. It is considered an infringement of an individual's personal rights and their right to sexual self-determination. The impact on the victim and the unwelcomeness of the conduct are key factors, regardless of the harasser's intent.

2. Power Harassment (Pawahara):
Power harassment refers to speech or conduct by an individual leveraging a superior position or relationship within the workplace (e.g., supervisor to subordinate, senior colleague to junior, or even among colleagues where one has a situational advantage) that goes beyond the necessary and appropriate scope of business operations, thereby harming the workplace environment or causing mental or physical distress to an employee.

Following extensive discussion and public concern, the Ministry of Health, Labour and Welfare (MHLW), based on a 2012 roundtable meeting report, and subsequent legislative developments, has categorized power harassment into six typical types:

  1. Physical Attack (身体的な攻撃 - shintai-teki na kōgeki): Assault, violence.
  2. Mental or Emotional Attack (精神的な攻撃 - seishin-teki na kōgeki): Threats, insults, public humiliation, defamation, excessively harsh reprimands beyond the scope of instruction.
  3. Social Isolation (人間関係からの切り離し - ningen kankei kara no kirihanashi): Ostracism, ignoring, intentionally excluding from necessary work-related information or team activities.
  4. Excessive Demands (過大な要求 - kadai na yōkyū): Assigning tasks that are clearly impossible to perform, unnecessary, or far beyond the employee's skills and experience, often with the intent to cause distress.
  5. Under-utilization or Menial Tasks (過小な要求 - kashō na yōkyū): Assigning tasks that are far below an employee's abilities and experience, giving no meaningful work, or forcing an employee to perform menial tasks unrelated to their job role, often as a form of belittlement or to induce resignation.
  6. Invasion of Privacy (個の侵害 - ko no shingai): Excessively prying into an employee's personal life or private matters unrelated to work.

A key challenge often lies in distinguishing legitimate and necessary business instructions or guidance from power harassment, particularly concerning the latter three categories. The context, frequency, persistence, and impact of the behavior are all considered.

It's also worth noting that "maternity harassment" (マタハラ - matahara), targeting employees due to pregnancy, childbirth, or use of childcare leave, is another recognized form of workplace harassment, often overlapping with elements of sexual or power harassment.

Japanese law places a significant affirmative duty on employers to create and maintain a workplace free from harassment.

1. Duty to Provide a Safe and Healthy Working Environment (職場環境配慮義務 - shokuba kankyō hairyo gimu):
This overarching duty is derived from Article 5 of the Labor Contract Act. It requires employers to take necessary measures to ensure the safety and health of their employees, which includes protecting them from harassment. Failure to do so can lead to liability for breach of the employment contract.

2. Specific Statutory Obligations for Harassment Prevention:

  • Sexual Harassment: The Equal Employment Opportunity Act (男女雇用機会均等法 - Danjo Koyō Kikai Kintō Hō) obligates employers to establish necessary measures to prevent workplace sexual harassment and to appropriately address any complaints. This includes establishing clear policies, providing consultation channels, and taking prompt action when incidents occur.
  • Power Harassment (Power Harassment Prevention Act): Significantly, amendments to the Act on Comprehensively Advancing Labor Measures, Stabilizing the Employment of Workers, and Enriching Workers' Vocational Lives (commonly referred to as the Power Harassment Prevention Act) made it mandatory for employers to implement measures to prevent power harassment. These obligations came into effect for large companies in June 2020 and for small and medium-sized enterprises (SMEs) in April 2022. Key employer duties under this law include:
    • Clearly defining and prohibiting power harassment in company policy and making this known to all employees (周知 - shūchi).
    • Establishing a system and designated contact point (相談窓口 - sōdan madoguchi) for employees to report or consult about power harassment concerns.
    • Promptly and appropriately investigating reported incidents of power harassment while ensuring fairness and privacy.
    • Taking appropriate corrective action against employees found to have engaged in power harassment, based on the investigation findings and company policy.
    • Implementing measures to protect victims from further harassment or disadvantageous treatment as a result of reporting.
    • Ensuring the privacy of individuals involved (both the reporter and the alleged harasser) is protected.
    • Strictly prohibiting any retaliatory treatment against employees for reporting power harassment or cooperating with investigations.

Failure to implement these mandatory measures can result in administrative guidance, recommendations, and, in cases of non-compliance, public naming of the company by the authorities.

When harassment occurs, both the individual harasser and the employer can face legal liability.

1. Liability of the Harasser:

  • Civil Liability (Tort): The individual who commits harassment can be held personally liable for damages under Article 709 of the Civil Code (不法行為 - fuhō kōi). This can include compensation for the victim's emotional distress, medical expenses, lost wages, and other related damages.
  • Disciplinary Action by Employer: The harasser may also face disciplinary measures from their employer, ranging from warnings or reprimands to suspension, demotion, or even dismissal, depending on the severity of the conduct and the company's work rules. For instance, dismissal of a manager for sending highly inappropriate sexual emails and repeatedly making unwelcome advances was upheld by a court, as such conduct was deemed a serious breach of trust and workplace order.

2. Liability of the Employer:
Employers can be held liable for workplace harassment on several grounds:

  • Vicarious Liability (使用者責任 - shiyōsha sekinin): Under Article 715 of the Civil Code, an employer can be held liable for damages caused by an employee if the harassment was committed "in the course of employment" (事業の執行について - jigyō no shikkō ni tsuite). This scope is often interpreted broadly to include work-related social events or interactions outside the immediate workplace if they are sufficiently connected to the employment relationship.
  • Breach of Employment Contract (債務不履行 - saimu furikō): As per Article 415 of the Civil Code, an employer's failure to fulfill its duty to provide a safe and harassment-free working environment can be considered a breach of the employment contract, leading to liability for damages.
  • Direct Liability for Failure to Implement Preventive/Corrective Measures: Failure to comply with the statutory obligations to prevent and address harassment under laws like the Equal Employment Opportunity Act and the Power Harassment Prevention Act can also form a basis for employer liability.

A notable Supreme Court decision (February 26, 2015, often referred to as the Kaiyukan case) upheld disciplinary action (suspension) against managers for persistent inappropriate and offensive sexual remarks to female colleagues, even though the victims had not always explicitly voiced their objections directly to the harassers at the time. This case underscored the employer's proactive responsibility to maintain a respectful workplace and address harassing conduct, recognizing that victims may not always feel able to overtly reject such behavior.

For Companies:

  • Develop and Enforce a Clear Anti-Harassment Policy: This policy should define all forms of prohibited harassment, provide examples, outline reporting procedures, detail the investigation process, and state the consequences of violations. It must be regularly communicated to all employees.
  • Conduct Regular Training: Provide comprehensive training for all employees, with specific modules for managers and supervisors, on identifying, preventing, and responding to harassment. Emphasizing that the company does not tolerate harassment through such training and compliance systems is crucial.
  • Establish Effective and Accessible Reporting Channels: Create multiple confidential and reliable channels for employees to report harassment or seek consultation without fear of retaliation. Ensure these channels are well-publicized.
  • Investigate Complaints Promptly and Impartially: Implement a fair, thorough, and timely investigation process for all complaints. Investigators should be trained and objective.
  • Take Appropriate Corrective and Protective Action: Based on investigation findings, take swift and proportionate disciplinary action against harassers. Provide support and remedies for victims, including measures to prevent recurrence and protect them from retaliation.
  • Maintain Confidentiality and Privacy: Protect the privacy of all individuals involved throughout the reporting and investigation process to the greatest extent possible.
  • Prohibit Retaliation: Implement and enforce a strict anti-retaliation policy.

For Employees Experiencing Harassment:

  • Clearly Communicate Unwelcomeness (if safe and feasible): If possible, clearly and firmly tell the harasser that their conduct is unwelcome and must stop. This can sometimes deter further harassment, although it's acknowledged that victims may not always be in a position to do so.
  • Document Everything Meticulously: Keep detailed written records of each incident: dates, times, locations, specific words spoken or actions taken, any witnesses, and the emotional or physical impact on you. Save any relevant emails, messages, or other evidence.
  • Utilize Internal Reporting Systems: Report the harassment through the company's designated channels (e.g., HR, a dedicated consultation desk).
  • Seek External Support and Advice: If internal resolution is unsatisfactory or difficult, consult with a labor union, a lawyer specializing in labor issues, the local Labor Bureau's consultation services, or non-profit support organizations for harassment victims.
  • Consider Legal Options: Depending on the circumstances and the outcome of internal processes, legal action, such as filing a civil lawsuit for damages or seeking mediation/conciliation through labor relations commissions, may be an option.

Conclusion

Workplace harassment, in its various forms, is a violation of employee dignity and a serious impediment to a productive and healthy work environment. Japanese law, significantly bolstered by recent legislation specifically targeting power harassment, places clear and mandatory obligations on employers to proactively prevent such conduct and to respond effectively when it occurs. For companies, fostering a culture of respect, implementing robust preventative measures, and ensuring fair and prompt responses to complaints are not just ethical imperatives but legal necessities to avoid significant liability and maintain a positive workplace.