Various protections exist with regards to anti-discrimination laws in Japan, as outlined below.
The Labour Standards Act prohibits discrimination with respect to wages, working hours or working conditions, by reason of nationality, creed or social status. The Act further states that an employer shall not engage in discriminatory treatment between men and women with respect to wages.
The Equal Opportunity Act contains a general prohibition on employers directly discriminating against workers on the basis of gender in relation to the allocation of duties, training, benefits, occupational functioning and status, and dismissal.
The Child Care and Nursing Care Act prohibits the discriminatory of any employee who applied for, or utilised, child care or nursing care leave and other measures under this Act.
The Employment Measures Act (1966) prohibits discrimination based on age for hiring, although some exceptions for setting age requirements are provided for in the Act.
The Act on the Promotion of Employment of Persons with Disabilities (1960) generally obliges employers to hire employees with disabilities. Furthermore, the Act prohibits discriminatory treatment on the basis of disability.
The Labour Union Act prohibits disadvantageous treatment of employees for activities pertaining to their involvement with labour unions. Such activities include, but are not limited to, being a union member, attempts to join or organise a labour union, or having performed proper activities of a labour union.
Extent of Protection for Employees with Disabilities
The Equal Opportunity Act also contains a prohibition on indirect discrimination on the basis of gender. For example, this includes acts or practices that have the effect of inadvertently placing women at a distinct disadvantage, compared to men. An exception to this general principle exists if there are justifiable reasons for the difference in conduct towards the individuals of different gender, such as, for example, an employer chooses to require transfer experience to other parts of the business/locations as a condition for promotion. However, an employer is not required to grant the same conditions to all employees. Therefore, disparate treatment of male and female employees (e.g. gender differences) could be considered impartial (non-discriminatory) if there are justifiable reasons for doing so.
Protections Against Harassment
Sexual harassment can be defined as: (i) any disadvantages in the employee’s working conditions (such as dismissal, demotion or salary cuts) by reason of their response to sexual speech and behavior at the workplace; or (ii) any harm in their working environment by reason of exposure to sexual speech and behavior.
The Equal Opportunity Act requires employers to introduce measures to prevent sexual harassment, including a mandate to clarify the relevant policy and inform and educate their employees on such policies. Furthermore, employers must establish consultation desks to respond to complaints from employees; facilitating a prompt and appropriate investigation that can be carried out effectively upon learning of incidents of sexual harassment; instituting measures to protect the privacy of both the accuser and the accused; and prohibiting the dismissal or mistreatment of workers who consult or cooperate with a sexual harassment-related investigation.
The recent amendment of the Equal Opportunity Act, which came into force in June 2020, strengthens such measures and compels employers to try and cooperate with other companies (e.g. through interviews and/or investigations) in cases where an employee of the company has sexually harassed employees of the other company, in order to enhance the effectiveness of the other company’s employment measures and prevent potential sexual harassment incidents stemming from the interaction between companies and their employees.
Power harassment can be defined as damaging behavior, which takes advantage of a superior position in a working relationship. The recent amendments on the Act on Comprehensive Promotion of Labour Policies, which came into force in June 2020, requires employers to introduce measures to prevent power harassment. Employers must establish consultation procedures to prevent power harassment. The law also prohibits the dismissal or mistreatment of workers who make a complaint regarding power harassment.
Furthermore, any employer that does not abide by the recommendations for improvement discussed above, could be publicly named.
Employer’s Obligation to Provide Reasonable Accommodations
The Act on the Promotion of Employment of Persons with Disabilities obliges employers with more than 45.5 employees, to hire employees with disabilities and to increase the representation of its employees with disabilities to reach at least 2.2% of their workforce. This representation percentage of employees with disabilities is due to increase to 2.3% in January 2021. Employers who do not achieve the statutory employment rate for disabilities shall be subject to a payment of certain levies, in proportion to the difference between their actual employment rate and the statutory employment rate.
Furthermore, the Act on the Promotion of Employment of Persons with Disabilities prohibits discriminatory treatment on the basis of disability. The Act also requires employers to provide reasonable accommodations. Employers are obliged to make best efforts with regards to these prohibitions and obligations. Further details are provided under the relevant guidelines. Reasonable accommodations as required under the Act, is defined as necessary and appropriate modifications and adjustments that do not impose a disproportionate or undue burden (which is largely equivalent to the definition of reasonable accommodations as provided by the Convention on the Rights of Persons with Disabilities). If a person with a disability expresses an intention to remove social barriers, the employer is required to undertake the appropriate consideration (i.e. a positive action of change or adjustment) with regards to providing services and/or accepting him/her as an employee, albeit depending on the circumstances as well as the individual disability characteristics of the employee, and to the extent that there is no disproportionate or undue burden imposed against the employer. An employer is also required to establish a consultation system to respond to disabled employees and to protect the privacy of a consulter. An employer is further prohibited from the dismissal or mistreatment of employees who request a consultation for accommodations.
There are no mandatory obligations imposed on employers to provide accommodations with regard to religious practices.
An employee may bring a discrimination claim against the employer by filing a civil lawsuit before the appropriate court, or through a petition for proceedings before the appropriate labour tribunal. The employee is entitled to seek a declaratory judgment determining that the discriminatory treatment is null and void, or an order of compensation of damages due to the discriminatory treatment. An employee may also make a request for administrative mediation at the prefectural labour bureau, with regards to the discriminatory treatment. It is also possible for an employee to report an employer’s equal pay practice to the appropriate Labour Standards Inspection Office, which may commence an investigation and possibly a criminal prosecution, depending on the discrimination claim. In practice, however, a criminal prosecution is extremely rare.
Furthermore, the directors of Prefectural Labour Offices can provide employers with advice, guidance and recommendations with regard to the discriminatory treatment. The directors can also require employers to provide reports on issues covered by the Equal Opportunity Act.
Japanese law does not impose any (generally) applicable laws or regulations that require an employer to disclose, report on, or take positive action in order to ensure equality. However, there is a requirement for employers to employ a certain number of workers with disabilities and to report their workforce statistics to the government, annually.