This article is an extract from Lexology In-House View: Diversity and Inclusion 2023. Click here for the full guide.

Introduction

In this chapter, we aim to provide an explanation of harassment regulations in the Japanese workplace. Japan has seen the establishment of regulations for sexual harassment, followed by maternity harassment and, subsequently, power harassment. While there are numerous resources available in Japanese on these topics, comprehensive articles written in English are relatively scarce.2 Therefore, this article seeks to address this gap and offer a comprehensive explanation in English. Below, we will discuss the background, legal risks and liabilities, sexual harassment, maternity harassment, power harassment and new types of harassment including SOGI harassment (harassment relating to sexual orientation and gender identification) and others.

Background – increase in harassment cases

According to ‘Implementation Status of the Individual Labour Dispute Resolution System in 2021’, published by the Ministry of Health, Labour and Welfare (MHLW), out of 284,139 civil individual labour dispute consultations in 2022, harassment-related consultations accounted for the highest number with 86,034 cases, while consultations regarding dismissal and other issues stood at 33,189 cases.3

Furthermore, owing to the recent amendment of the Whistleblower Protection Act (Act No. 122 of 2004), companies with more than 300 employees were obliged to establish necessary systems to respond appropriately to internal reports from 1 June 2022. According to statistics released by the Consumer Affairs Agency, among the reports received by reporting channels, 65.7 per cent were related to ‘Acts that harm the workplace environment (eg, power harassment, sexual harassment),’ making it the most reported issue.4

Additionally, in labour-related cases, there is a three-court-hearing date tribunal process known as the ‘labour tribunal’, which is administered by district courts. This process facilitates easier filing of cases, including harassment cases, by employees since it involves reduced application fees. Furthermore, its case record is not publicly viewable unless third parties with a vested interest in the case apply to see it.

Legal risks and liabilities for employers

Drawing upon the given backgrounds, we aim to elucidate the legal risks and liabilities that employers might encounter in the event of workplace harassment. Accordingly, below, we provide an overview of the following responsibilities: individual liability of perpetrators; employer’s liability; and liability for damages of employer’s representatives, officers and supervisors.

Individual liability of perpetrators

Presently, Japan’s Penal Code (Act No. 45 of 1907) does not explicitly define ‘harassment’ acts as a crime or an actus reus. However, depending on the type of harassment involved, acts of harassment may potentially fall under existing criminal offences such as non-consensual indecency (article 176), non-consensual sexual intercourse (article 177), injury (article 204), assault (article 208), intimidation (article 222), compulsion (article 223), defamation (article 230) and insults (article 231) under the Penal Code.

Further, article 709 of the Civil Code (Act No. 89 of 1896) establishes the responsibility for tortious acts, stating that ‘A person that has intentionally or negligently infringed the rights or legally protected interests of another person is liable to compensate for damage resulting in consequence.’ Thus, perpetrators of tortious acts as a form of harassment may be held liable for compensating victims for damage caused.

When considering the issue of individual liability for damages, in cases where harassment is deemed particularly severe, it may constitute a tortious act, thus making the perpetrator liable for damages to the victim. However, while many considerations for harassment and tortious acts may overlap, they are not identical. Several court precedents have differentiated and deliberated on whether a case should be considered harassment or a tortious act (eg, see Employee v Kofu City, Yamanashi Prefecture (City funded Elementary School Teacher) case, Kofu District Court, Judgment of 13 November 2018, Roudou Hanrei No. 1202, p. 95).

Employer’s liability

Article 715, paragraph 1 of the Civil Code provides that ‘a person that employs another person for a business undertaking is liable to compensate for damage inflicted on a third party by that person’s employees with respect to the execution of the business.’ Therefore, if harassment acts are conducted in the course of ‘execution of the business’, the employer may also be held liable for damages. Further, article 350 of the Companies Act (Act No. 86 of 2005) provides that ‘a Stock Company is liable for damage caused to third parties by its Representative Directors or other representatives during the course of the performance of their duties’; thus, if the employer’s representative directors committed harassment ‘during the course of the performance of their duties’, the employer may also be held liable for damages.

Additionally, in cases where an employer fails to fulfil its duty of safety consideration, leading to the occurrence or exacerbation of harassment acts, claims for damages may also be filed against the employer on the grounds that violation of its safety consideration obligation will constitute a tortious act or non-performance of its obligations.

In any case, for the perpetrator of harassment (eg, a supervisor or middle manager), even if a claim for damages is granted, it may remain uncertain whether they have sufficient financial resources to fulfil the liability, leading to claims being made against the employer instead.

Liability for damages of employer’s representatives, officers and supervisors

The employer’s company representatives and others may also become the subject of claims for damages.

Specifically, acts committed by officers against third parties in bad faith or with gross negligence in performing their duties (article 429 of the Companies Act) may result in personal liability for damages as a result of such actions. Moreover, as stated, perpetrators of tortious acts as a form of harassment may be held liable for compensating victims for damage caused, based on article 709 of the Civil Code.

In this regard, there have been court precedents where both the company and its representatives were held liable for damages caused by the representative’s harassment acts (eg, see Employee v A Company Nagano Sales, Tokyo High Court, Judgment of 18 October 2017, Roudou Hanrei No. 1179, p. 47; Employee v Fuji Housing, Osaka High Court, Judgment of 18 November 2021, Roudou Hanrei No. 1281, p. 58; and Employee v Sun Challenge, Tokyo District Court, Judgment of 4 November 2014, Roudou Hanrei No. 1109, p. 34). Among them, Employee v Sun Challenge admits the officer’s personal liability for damages based on article 429 of the Companies Act.

Furthermore, while such contested cases are few and some precedents have denied liability, those overseeing the business on behalf of the employer may also become responsible for bearing the burden of damages (article 715, paragraph 2 of the Civil Code). Although the judgment denied personal liability, Employee v Pranet CR, Nagasaki District Court, Judgment of 7 December 2018, Roudou Hanrei No. 1195, p. 5 discusses personal liability based on article 715, paragraph 2 of the Civil Code.

Sexual harassment

As mentioned earlier, among the types of harassment, sexual harassment was the first to be recognised and regulated. Regarding sexual harassment regulation, we would like to explain its legal definition, obligations under the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment, and its applicability to tortious acts and relevant court precedents.

Legal definition of sexual harassment

Sexual harassment is defined as ‘acts in the workplace that cause an employee to suffer disadvantages in their working conditions or harm to their work environment due to sexual conduct, and the employee’s response to such sexual conduct’ (article 11, paragraph 1 of the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (Act No. 113 of 1972) (the Equal Opportunity Act)).

Further, the ‘Guidelines on Measures that Employers Should Take Regarding Problems Arising from the Workplace’, issued by the MHLW, which are known as the ‘Sexual Harassment Guidelines’, specifically define the substance of sexual harassment:5

  • quid pro quo sexual harassment refers to acts of sexual conduct in the workplace against the will of the employee, which result in disadvantages such as dismissal, demotion or wage reduction for the labourer due to their response, for example, rejection or resistance; and
  • hostile work environment sexual harassment refers to acts of sexual conduct in the workplace against the will of the employee, leading to an unpleasant work environment for the employee, causing significant adverse effects on their performance, or causing substantial obstacles to their employment.

Obligations under the Equal Opportunity Act

Under article 11, paragraph 1 of the Equal Opportunity Act, employers have an obligation to take necessary measures to prevent sexual harassment in the workplace. Furthermore, under article 11, paragraph 2 of the Act, employers are prohibited from dismissing or treating employees disadvantageously in response to employees’ consultations on sexual harassment or when cooperating with the employer in addressing such consultations.

The Sexual Harassment Guidelines specify the details of specific preventive measures, including:

  • clarifying and promoting policies on sexual harassment prevention;
  • establishing a system to respond appropriately to employee consultations;
  • ensuring prompt and appropriate responses after incidents;
  • protecting the privacy of those involved in consultations or post-incident responses; and
  • raising awareness about the prohibition of adverse treatment based on consultations or cooperation in light of the facts.

Tortious acts and court precedents

If sexual harassment infringes on personal interests such as sexual freedom and self-determination or the benefits of working in a comfortable workplace and educational environment, the perpetrator may be held liable under tort law (article 709 of the Civil Code).

Determining whether an act constitutes a tortious act often requires referring to two early high court precedents as leading cases.

In the court precedent of the Kanazawa Sexual Harassment Case (Nagoya High Court Kanazawa Branch, Judgment of 30 October 1996, Roudou Hanrei, No. 707, p. 37), it was indicated that not all sexually unwanted conduct by male superiors towards female subordinates in the workplace is automatically deemed illegal, and that factors are considered such as the nature of the conduct, the position and age of the perpetrator, the age and marital history of the victim, the pre-existing relationship between the parties, the place of the conduct, the repetition or continuation of the conduct and the victim’s response.

In the court precedent of the Yokohama Sexual Harassment Case (Tokyo High Court, Judgment of 20 November 1997, Roudou Hanrei, No. 728, p. 12), it was stated that the act of a male superior physically contacting a female subordinate against her wishes does not automatically and immediately constitute a violation of the victim’s sexual freedom or personality rights due to such act; however, such act constitutes a violation of the victim’s sexual freedom or personality rights and is illegal when it involves bodily contact of the victim with sexual connotations and is regarded as exceeding the socially accepted standards, by comprehensively considering factors such as the body parts targeted, the nature and degree of the physical contact (including repetition and continuation), the purpose of the contact, the degree of discomfort felt by the victim, the location and timing of the act (eg, whether it occurred in a place or at a time when no one else was present), whether the act took place during work hours, and the position and relationship between the perpetrator and the victim.

Further, in the recent precedent of Employee v Kaiyukan (Supreme Court, Judgment of 26 February 2015, Roudou Hanrei No. 1109, p. 5), it was recognised that victims of workplace sexual harassment may hesitate to protest, resist or report the harm to the company, given the probability of detrimentally affecting human relationships in the workplace, despite experiencing significant discomfort or aversion. The Court made it clear that considering the victim’s lack of explicit refusal cannot be used to the perpetrator’s advantage.

Based on the above court precedents regarding whether sexual harassment constitutes a tortious act, the courts tend to make comprehensive judgments, taking into consideration various factors. Furthermore, considering the precedents set by the Supreme Court, among other factors, the evaluation appears to be organised by duly considering the position of the victim, who may find it difficult to reject such behaviour.

Maternity harassment

Maternity harassment typically involves harassment related to childbirth and childcare, and once may have been perceived as a type of sexual harassment. However, with the establishment of rights under the Act on Childcare Leave, Caregiver Leave, and Other Measures for the Welfare of Workers Caring for Children or Other Family Members (Act No. 76 of 1991) (the Childcare and Family Care Act), instances of harassment concerning the use of these statutory rights have become evident, leading to such behaviour being recognised as maternity harassment. Below, we would like to explain maternity harassment, including its legal definition and obligations, as well as relevant court precedents.

Legal definition and obligations

Maternity harassment, also known as maternity-related harassment, is defined under the Equal Opportunity Act and the Childcare and Family Care Act. It refers to behaviours in the workplace that cause harm to female employees due to their pregnancy, childbirth and the use of related systems (article 11-3, paragraph 1 of the Equal Opportunity Act) and to behaviours in the workplace that cause harm to employees due to their use of childcare leave and related systems (article 25, paragraph 1 of the Childcare and Family Care Act).

Maternity harassment can be categorised into two types: one involving exercises of human resource authority by employers or management, and the other involving harassment by supervisors or colleagues. Moreover, the latter is further divided into the type of harm caused to female employees due to the state of their pregnancy, childbirth and other matters (violation of the Equal Opportunity Act) and the type of harm to employees due to their use of childcare leave and related systems (violation of the Childcare and Family Care Act).

Direct prohibitions against the former are provided under article 11-3, paragraph 2 of the Equal Opportunity Act and article 25, paragraph 2 of the Childcare and Family Care Act, while employers are obligated to take necessary measures to prevent maternity harassment in the workplace relating to the latter (article 11-3, paragraph 1 of the Equal Opportunity Act; article 25, paragraph 1 of the Childcare and Family Care Act).

The Maternity Harassment Guidelines issued by the MHLW outline specific preventive measures, including:

  • clarifying and promoting policies on preventing maternity harassment;
  • establishing a system to respond appropriately to employee consultations;
  • ensuring prompt and appropriate responses after incidents;
  • implementing measures to eliminate the causes and backgrounds of maternity harassment;
  • protecting the privacy of those involved in consultations or post-incident responses; and
  • raising awareness about the prohibition of adverse treatment based on consultations or cooperation in light of the facts.6

Court precedents

The leading Supreme Court precedent of Employee v Hiroshima Central Insurance Cooperative, Supreme Court, Judgment of 23 October 2014, Minshu Vol. 68, No. 8, p. 1270, is significant in relation to maternity harassment. In this case, an employee who held the position of sub-chief was demoted to lighter duties during pregnancy and was not reinstated to the position of sub-chief after returning from childcare leave. The Supreme Court ruled that the employer’s action of demoting the worker due to the transfer to lighter duties during pregnancy constituted disadvantageous treatment prohibited under the Equal Opportunity Act.

Other relevant cases involving disadvantageous treatment that were found to be illegal include one where a male employee who took three months of childcare leave was denied a raise in his annual salary the following year (see Employee v Medical Corporation Tomonkai (Iwakura Hospital), Osaka High Court, Judgment of 18 July 2014, Roudou Hanrei No. 1104, p. 71) and one where a worker who returned from childcare leave had her role-based compensation reduced without individual consent (see Employee v Konami Digital Entertainment, Tokyo High Court, Judgment of 27 December 2011, Roudou Hanrei No. 1042, p. 15).

Power harassment

While power harassment is a type of harassment that appears to receive comparatively less attention in other jurisdictions, in Japan it has become a prevalent issue with a recent surge in reported cases. The definition of power harassment, its applicability to unlawful acts and its relationship with necessary job guidance are often subject to debate.

In the following, we would like to provide an explanation of power harassment, including its legal definition and obligations, the requirements for establishing power harassment and relevant court precedents.

Definition and obligations of power harassment

Under article 30-2, paragraph 1 of the Act on Comprehensively Advancing Labour Measures, and Stabilizing the Employment of Workers, and Enriching Workers’ Vocational Lives (Act No. 132 of 1966) (the Comprehensive Labour Measure Act), power harassment is defined as ‘behaviour in the workplace that is based on a superior relationship and exceeds the necessary and reasonable scope of work, resulting in harm to the employee’s working environment’, and employers have an obligation to take preventive measures.

Furthermore, employers are prohibited from dismissing or treating workers disadvantageously on the grounds of their consultation about power harassment or stating factual information when cooperating with the employer’s response to such consultations (article 30-2, paragraph 2 of the Comprehensive Labour Measure Act).

The Power Harassment Guidelines, which were issued by the MHLW based on the Comprehensive Labour Measure Act, specify concrete preventive measures, including the following:

  • clarifying and disseminating the employer’s policy to prevent power harassment;
  • establishing a system to respond appropriately to workers’ consultations;
  • providing prompt and appropriate responses;
  • protecting the privacy of those involved in consultations or post-consultation actions, and
  • disseminating information and promoting awareness against any disadvantageous treatment based on consultations or cooperation with consultations.7

Requirements for establishing power harassment and court precedents

Based on the definition of the Comprehensive Labour Measure Act, the requirements for establishing power harassment comprise three elements:

  • actions based on a superior relationship;
  • actions exceeding the necessary and appropriate scope of business operations; and
  • actions causing harm to the employee’s work environment.

‘Actions based on a superior relationship’ refers to actions taken in the context of the employer’s work, where the employee subject to the actions is highly likely to be unable to resist or refuse the actions by the perpetrator (section 2(4) of the Power Harassment Guidelines). This includes not only actions by supervisors but also those by colleagues or even subordinates in a superior relationship, as they have knowledge of business needs or have abundant experience and the work cannot be completed smoothly without their cooperation.

To determine whether actions exceed ‘the necessary and appropriate scope of business operations’, various factors need to be comprehensively considered, such as the purpose of the actions, the existence and extent of the employee’s problematic behaviour, the circumstances surrounding the actions, the nature of the business, the content of the work, the manner, frequency, and continuity of the actions, the employee’s attributes and mental or physical condition, and the relationship with the perpetrator (section 2(5) of the Power Harassment Guidelines).

‘Actions causing harm to the employee’s work environment’ refers to actions that cause the worker physical or mental suffering to the extent that it significantly affects the employee’s ability to perform their duties and severely hinders their work environment (section 2(6) of the Power Harassment Guidelines). In assessing this, the criterion is whether the actions would significantly hinder the employee’s work environment, from the perspective of the average worker in similar circumstances.

Among these elements, the one most frequently contested is whether the actions exceed ‘the necessary and appropriate scope of business operations’. The Power Harassment Guidelines also state that actions within the necessary and appropriate scope of business operations are generally acceptable, while actions that significantly exceed the scope of business operations, such as actions substantially deviating from the business purpose or employing inappropriate means to achieve business goals, can be considered power harassment.

Based on court precedents, actions that include certain statements in business instructions or guidance have found to be tortious acts, such as:

  • ‘You should go to a mental clinic’ or ‘You might not be capable and might be a nuisance’ (see Employee v Fussa Hospital Corporation Group (former Fussa Hospital Partnership), Tokyo District Court Tachikawa Branch, Judgment of 1 July 2020, Roudou Hanrei No. 1230, p. 5);
  • ‘If you lack motivation, you should resign. You are a complete loss to the company’ (see Employee v A Insurance Company Supervisor (Damages), Tokyo High Court, Judgment of 20 April 2005, Roudou Hanrei No. 914, p. 82);
  • regarding a mistake: ‘I’ll kill you’, ‘You are an idiot’; and
  • regarding absences: ‘Were you out playing pachinko?’ (see Employee v Arc Lay Factory, Osaka High Court, Judgment of 9 October 2013, Roudou Hanrei No. 1083, p. 24).

Based on the above court precedents, it can be inferred that not only merely pointing out issues with subordinates but also making remarks that could be interpreted as personal attacks, such as ‘You should resign’, ‘I’ll kill you’, or ‘You are an idiot’, tend to be regarded as power harassment and tortious acts. In addition, when handing down sentences in the court precedents, the courts appear to render a judgment comprehensively considering the factual backgrounds of the statement, for example, relationships, expression of the statement, number of similar statements.

The Power Harassment Guidelines issued by the MHLW identify six types of power harassment in the workplace:

  • physical attacks (assault and battery);
  • psychological attacks (threats, verbal abuse, etc.);
  • isolation from human relations (segregation, exclusion, neglect);
  • excessive demands (enforcing tasks clearly unnecessary for business or obstructing work);
  • insufficient demands (ordering menial tasks below the employee’s capabilities and experience or not assigning work); and
  • personal infringements (excessive intrusion into personal matters).

These categories provide typical examples of power harassment.

New types of harassment including SOGI harassment and others

As given above, harassment in the workplace, such as sexual harassment, maternity harassment and power harassment, has gradually been recognised and regulated, with the scope of recognition expanding over time. Moreover, new types of harassment may continue to be identified or regulated by the MHLW or court precedents in the future. Currently, there are several emerging types of harassment that are widely discussed. These include SOGI harassment, customer harassment and hate harassment. In the following, we would like to introduce these new forms of harassment.

SOGI harassment

Recently, there has been active discussion on the relationship between LGBTQ individuals and sexual harassment and power harassment. These are sometimes referred to as SOGI harassment or, as mentioned above, harassment relating to sexual orientation and gender identification.

According to the Sexual Harassment Guidelines, sexual harassment can occur regardless of the genders involved or the sexual orientation or gender identity of the parties. Therefore, sexual harassment towards someone of the same gender as the perpetrator or sexual harassment towards an LGBTQ individual is also subject to the regulations stated in section 4.

In a case involving a transgender employee in the government (ie, MTF or male-to-female, diagnosed with gender identity disorder who was restricted from using certain women’s toilets in a building because of hypothetical discomfort by female employees), the Supreme Court ruled that the treatment, based on considerations overly focusing on other employees without considering the specific circumstances of the disadvantages caused by such treatment, lacked reasonable justification and was illegal (see Employee v Government (Ministry of Economy, Trade and Industry), Supreme Court, Judgment of 11 July 2023).

Furthermore, some LGBTQ individuals may prefer not to disclose their sexual orientation or gender identity; thus, such personal preference and decision should be legally protected. Accordingly, the Power Harassment Guidelines issued by the MHLW clarify that revealing information about an employee’s sexual orientation or gender identity to other employees without the understanding of the employee concerned (known as ‘outing’) can also be considered power harassment. In this regard, it has been broadcast that a mental disorder case caused by the outing of a supervisor is recognised as a ‘worker’s accident’ by the Labour Standards Inspection Office.8

Customer harassment

The Power Harassment Guidelines issued by the MHLW state that it is desirable to take measures to protect employees from significant nuisance acts by their customers, including assaults, threats, severe verbal abuse and unjust demands from customers. Subsequently, the MHLW has published the Customer Harassment Manual.9

From the Power Harassment Guidelines and the Customer Harassment Manual, it can be inferred that employers have an obligation, as part of their duty of care, to implement measures to protect employees from nuisance acts by customers.

In a court case cited in the Customer Harassment Manual (see Employee v Kofu City, Yamanashi Prefecture (City funded Elementary School Teacher) case, Kofu District Court, Judgment of 13 November 2018, Roudou Hanrei No. 1202, p. 95), the court found a violation of the duty of care in an environment where the principal forced an employee (school teacher), who was a victim of a dog bite attack, to apologise to the pupil’s father and grandfather, who were the perpetrators of the attack and the dog’s owners.

On the other hand, there are cases where companies have provided sufficient measures against customer harassment and, as a result, have been relieved of their duty of care. For example, in a court case cited in the Customer Harassment Manual (see Employee v My Basket, Tokyo District Court, Judgment of 2 November 2018, LEX/DB25562253), the court denied a violation of the duty of care because the company distributed manuals to handle nuisance customers and provided guidance on initial responses, and had established a system for consulting support desks even in the absence of managers.10

Hate harassment

Additionally, there are cases where hate speech in the workplace is recognised as the tortious act of harassment (ie, hate harassment or racial harassment). In one case, hate speech directed at foreign workers and made in the form of public speeches involving the company representative was deemed a tortious act, leading to compensatory damages and injunctive relief (see Employee v Fuji Housing, Osaka High Court, Judgment of 18 November 2021, Roudou Hanrei No. 1281, p. 58).