• 1 Sexual harassment is not included in these numbers and is instead handled separately both in statis (...)
• 2 It should be noted that harassment is an integral part of certain disputes relating to dismissal or (...)
• 3 For male employees, the suicide rate is 193.8 in 100,000 (48.8 for women only, 128. 1 for men and w (...)

1Psychological harassment in the workplace is a hot topic in Japan. According to statistics from the Japanese Labour Administration, workplace harassment1 is one of the most frequent grounds for complaints to Departmental Labour Offices (72,067 cases for 2017, i.e.,23.6% of all complaints).2 Furthermore, the number of deaths in 2017 due to workplace accidents in the private sector came to 978, out of a total of 58.19 million employees. Among these victims, 241 were cases of Karôshi (sudden death due to overwork) and 221 were suicides caused by psychosocial risks (Karojistasu). Unfortunately, the number of suicides has increased in recent years. The annual report produced by police agencies in 2017 showed that the total number of suicides came to 21,321, of which 6,432 were employed persons (30.2%).3 An analysis of motivations for suicide has shown that 1,991 cases were related to work problems, professional failures, human relations, changes in the work environment and work-related fatigue.

• 5 http://www.mhlw.go.jp/file/06-Seisakujouhou-11900000-Koyoukintoujidoukateikyoku/0000133458.pdf
• 6 Employers shall establish necessary measures in terms of employment management to give advice to wo (...)

5Despite an awareness of the gravity of the situation, no specific regulations exist on harassment in Japan. However, a special law been adopted to apply in certain cases. In 1997, after the amendment to Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment,5 provisions were adopted to deal with the problems caused by workplace sexual harassment,6 in particular by enshrining in law the obligation of employers to prevent this form of harassment.

• 7 “A person who has intentionally or negligently infringed any right of others, or any legally protec (...)
• 8 “In association with a labor contract, the Employer should give the necessary consideration to allo (...)
• 9 Article 11(2) of Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in (...)

6Except in cases of sexual harassment, victims must invoke legal provisions of a general nature when seeking damages before employment tribunals, since no specific anti-harassment legislation exists. The same applies to the employer’s obligation to ensure the health and safety of their salaried employees7 or, since 2007, when the Labor Contracts Act was enacted, to the employer’s contractual obligation to ensure the health and safety of their workers8 or, since 2017, the prohibition of discrimination against pregnant women or women and men on parental leave.9 In Japan, the legal definition of harassment is furthermore quite fragmented.

7Aside from cases of sexual harassment, no legal definition of harassment in general exists in Japan. It was in this context that in 2012 the labour administration adopted a specific definition of its own, and issued guidelines concerning “Power Harassment” (“Pawa-hara”). This approach is intended in part to prevent the type of harassment classed as Power Harassment.

• 10 Supreme Court, 24 March 2000, RH (Rodo Hanrei, Review of Labour Law Rulings), 779. Dentsu is one of (...)

14The most remarkable decision concerning Karôshi is that relating to the Dentsu case of 24 March 2000.10 In that Supreme Court decision, a young employee had been forced to work 147 hours of overtime per month. Harassment was recognised as underlying the duration of the work imposed upon this employee, who finally committed suicide. In this case, the young Ichiro Oshima began working at the Dentsu Company on 1^st April 1990 after graduating from university. He was in charge of business planning and events for radio promotions managed by Dentsu. Though he was able to return home in the daytime, he would never actually get back until one or two in the morning. In August 1990, the number of nights he was spending at work began to rise. Starting in November of that year, he would sometimes not come home at all. In July 1991, the leader of the young man’s team expressed his opinion that his working conditions were not necessarily so good, and that he was not taking it well. He furthermore started to express himself to others on his team, saying, for example: “Sometimes I can’t come to grips with what I’m doing and what I’m supposed to do” or “I can’t sleep; I wake up after only two hours of sleep. My insomnia has been getting worse since August and I don’t know why.” The young man then hanged himself, just after completing work on an event for a radio show he was managing.

• 11 Sendai Trib., 25 June 2013, RH, 1079.

18In another case, a young driver committed suicide as a result of long hours of overtime work. In his transport company, the collective agreement stipulated a maximum of 70 overtime hours monthly, which could be extended to 100 hours in exceptional cases. In practice, this driver had worked 63 hours and 45 minutes’ overtime in April 2009, 110 hours and 15 minutes in May, 99 hours and 50 minutes in June, 129 hours and 50 minutes in July, 103 hours and 55 minutes in August, and 102 hours and 30 minutes in September. He worked a night shift several times each month (after 10 pm, in each month respectively 2, 2, 1, 16, 9, and 6 times). His supervisor had criticised him for making a few small mistakes that new employees tend to make. As a result, he became depressed and committed suicide. The Sendai District Court sentenced the company to pay compensation for a breach of its obligation to protect its employees’ health and safety.11

• 12 Tokyo Court, 13 December 2013 unpublished.

19A brokerage firm was selling bearer bonds and assigning sales targets to its employees. These targets seemed to them very difficult to reach. When one employee was unable to achieve the sales target, his supervisor asked him to sell his own vehicle to ensure sales targets were reached. All this caused serious harm to the employee’s mental health, which led him to commit suicide. The Tokyo District Court considered that the target amounts were too high, and that what his supervisor had said to him had caused his suicide. As a result, the company was ordered to pay damages.12

• 13 Yokohama Court, 21 September 1999, RH, 771.

21Following a collision with another vehicle, a bus driver for a road transport company ended up with damage to the body of his bus. His employer ordered him to stop driving and reassigned him to the task of pulling up weeds around the bus depot, saying that this was intended to correct his driving errors. Performing the new job required the employee to be exposed to the hot sun for long hours in view of his colleagues and passing pedestrians. The Yokohama District Court found that this disciplinary sanction could not possibly result in any improvement to his driving techniques and ordered the company to pay damages.13

• 14 Osaka Court, 19 September 2007, RH, 959.

22At another company, Japan Railway (JR), a driver was ordered to copy out the company’s internal regulations in an isolated room, with no means of communication with his team. This disciplinary sanction was found by the Osaka District Court to constitute harassment.14

• 15 Tokyo Court, 13 March 2001, RH, 805.

23In addition to the imposition of work as a disciplinary sanction, we may also mention unnecessary work. An example is the case of the supervisor who ordered his subordinate to translate a book into English. This employee was not a translator and thus had no experience in translation. It took him two weeks to finish the job, which was of no use to the company. The Tokyo District Court characterised the imposition of this work on the employee as a situation constituting harassment.15

• 16 Court ruling, 11 October 2000, RH, 799.

24Victims in this category of harassment may be students, assistants or adjunct professors to whom the professor administers evaluations or examinations, or applies discriminatory measures in connection with grants and promotions. It is difficult for these victims to stand up against the professor, who holds a position of authority. In a case that occurred at a medical school, a teacher unfairly refused to issue his assistant a document necessary for her work, and blocked her office, leaving a container of contaminated water in front of the door to prevent her from conducting her research. The assistant who had suffered this unfair treatment ultimately obtained compensation for the acts of her academic advisor, which were recognised as constituting harassment. The court upheld her argument and found the University responsible due to its obligation to ensure the safety and health of civil servants in the exercise of their profession.16

• 17 Supreme Court, 5 September 1995, RH, 680.

25This type of situation covers managerial policy and management behaviours likely to constitute acts of harassment. An employer at an electricity company, for instance, once sought to dismiss a few employees who had criticised him. The management began to monitor communications amongst employees, secretly listening to telephone conversations and surreptitiously inspecting locker rooms. Management exerted pressure to break down friendships among the employees. The Supreme Court condemned this series of measures as detrimental to the right to freely establish personal relationships.17 The policy and activities of the human resources department must respect this right among employees. Failure to do so constitutes human resources harassment.

• 18 Tokyo Court, 26 June 2006, RH, 934.

26Another example of managerial harassment might include staff reshuffling. In Japan, in general, employers tend all too much to simply invoke their power to modify employment contracts, ignoring whether they have employee consent. Indeed, it is not easy for an employee to oppose a change of workplace or position proposed to him. The employer can thus abuse this power, and this may cause major strain in an employee’s professional and personal life. In one case, an employee objected to the transfer to another department that his employer had informally proposed. Faced with this refusal, the employer decided to artificially eliminate the department that the employee was working in, and moved him to the new post. The Tokyo District Court found that the change had caused major inconvenience to the employee and was unfair and abusive, and nullified that measure.18

• 19 Shizuoka Court, Numazu section, 20 September 2013, LEX/DB 25501757.

28For example, at an institute of chemistry, an employee sought revenge against a woman employed at the same establishment, for private reasons of a sentimental nature. He smeared poison inside her shoes. When she put her shoes on, she suffered serious injuries to her feet and legs. He was prosecuted for assault and sentenced to seven years’ imprisonment. In that case,19 the punishment of this conduct fell within the jurisdiction of the criminal court. To avoid risking liability in a harassment situation, employers must prevent this kind of behaviour by taking action in advance.

• 20 Tokyo Court, 27 November 1996, RH, 740.
• 21 Tokyo, 22 December 2000, RH, 796.

32A decision pronounced in the first instance by the Tokyo District Court upheld the request for a salary adjustment, but refused to order the promotions, on the grounds that only the employer has the power to make decisions regarding employees’ professional promotions.20 Upon appeal, the Court accepted all of the petitioners’ claims, finding that this would be the most appropriate means of remedying this unjustified difference in treatment.21

• 22 ‘and : 及び(および), かつ(かつ), 並びに(ならびに) / A and B, C, and DA husband and : 及び(および), かつ(かつ), 並びに(ならびに) / A (...)
• 23 Ministry of Labour, 2016.

33More recently, gender discrimination has been acknowledged in connection with name changes subsequent to civil marriages.22 96% of those who changed their name after marriage were women.23 There is a link here with sex discrimination and harassment against women. Indeed, if a member of a deliberative assembly or a group of artists changes his or her name after marriage, he or she may continue in practice to use his or her birth name. On the other hand, at a company, persons changing their names after marriage are required to notify management of such change and proceed to use their new name. This considerably disadvantages researchers or teachers in the academic field, however, since these people’s articles must henceforth be published under the family name of their spouse. Previous work, published under their birth name, is not affected by such changes.

• 24 Cass., 16 December 2015, MinSyu (Review of civil law judgments), 69-8.

34On 16 December 2015, the Supreme Court found these rules concerning the changing of names after marriage to be constitutional.24 Nevertheless, a growing proportion of the female population is advocating a change to this rule, so as to permit spouses to continue using their individual family names.