Summary
Japanese laws prohibit discrimination with respect to wages, working hours or working conditions, by reason of nationality, creed or social status. Furthermore, an employer shall not engage in discriminatory treatment between men and women with respect to wages.
It is also unlawful for employers to directly discriminate against workers on the basis of gender in relation to the allocation of duties, training, benefits, occupational functioning and status, and dismissal. The law further prohibits the discriminatory treatment of any employee who applied for, or utilised, child care or nursing care leave and other measures. Japanese law also prohibits i) discrimination based on age for hiring (although some exceptions for setting age requirements are permissible); ii) any disadvantageous treatment of employees for activities pertaining to their involvement with labour unions; iii) indirect discrimination on the basis of gender, e.g. acts or practices that have the effect of inadvertently placing women at a distinct disadvantage, compared to men, though certain exceptions apply.
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
Employers are required 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. Additional measures, introduced in June 2020, compel 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.
As of June 2020, employers are required to introduce measures to prevent power harassment. Power harassment can be defined as damaging behavior, which takes advantage of a superior position in a working relationship. 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.
Employer’s Obligation to Provide Reasonable Accommodations
Japanese law protects employees from discrimination based on a disability. Employers with more than 45.5 employees, are obligated to hire employees with disabilities and to increase the representation of its employees with disabilities to reach at least 2.2% of their workforce, rising to 2.3% in January 2021.
Employers must provide ‘reasonable accommodations’ – defined as necessary and appropriate modifications and adjustments that do not impose a disproportionate or undue burden. 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.
Remedies
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. 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. Furthermore, the directors of Prefectural Labour Offices can provide employers with advice, guidance and recommendations with regard to the discriminatory treatment.
Other Requirements
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.