Japan’s courts don’t share Mio Sugita’s views on supporting LGBT people, precedents show

Lawmaker Mio Sugita of the ruling Liberal Democratic Party found herself embroiled in controversy when the August edition of Shincho 45 was released on July 18. “Support for LGBTs has gone too far” screamed the headline of her article in the magazine.

This hard-right politician is already infamous online for her claim that the wartime network of sexual slavery serving the Imperial Japanese Army, euphemistically known as the “comfort women” system, is a fabrication of the Japanese left, and for attacking Koreans with such gems as “They spread their lies throughout the world.”

To mothers who lament the dearth of preschools available in Japan and demand that the central government take quick action to rectify the situation, she says: “That is your problem. You do something about it.”

She recognizes herself as conservative, right-wing and a patriot, and expresses animosity — even hatred — for the left, even penning a book titled “Why I Fight the Left.” The book heaps abuse on labor unions and praises nuclear power, casinos and the high-level professional overtime pay exemptions that will go into effect next April. Yet she loves Japan’s “beautiful culture and history.”

In her recent essay, she wrote: “Will people agree to have their taxes used on LGBT couples? They cannot have children, so they are unproductive.”

Japan does not recognize same-sex marriage. Local governments, on the other hand, have spearheaded efforts to use local ordinances to recognize same-sex partnerships. These include Shibuya and Setagaya wards in Tokyo and the cities of Iga in Mie Prefecture and Takarazuka in Hyogo.

Tolerance within society for the LGBT community is growing rapidly. IBM Japan, Kirin, Rakuten, Japan Tobacco and other corporations are moving ahead in instituting policies to provide the same level of special paid leave for marriage, childbirth, home care and other life events to same-sex couples as to those between a woman and man.

Unwelcome on golf course

Let me introduce to you a recent verdict to give an idea of what Japan’s courts are saying about LGBT people.

A golf course in the Shizuoka city of Kosai (whose name has not been released by the courts) refused membership to a corporate executive who had changed her registered gender from male to female. In Japan, this requires you to assert that you suffer from gender dysphoria. She sued the golf course for damages due to wrongful conduct, a violation of Japan’s Civil Code.

Shizuoka District Court ruled on Sept. 8, 2014, and the Tokyo High Court handed down a verdict on July 1, 2015. Both agreed with a portion of the claims and ordered the defendant to pay the hefty sum (by Japanese jurisprudent standards) of ¥1 million.

In its verdict, the appellate court clearly condemns discrimination against LGBT, although in a way that is likely jarring (or even maddening) to some: “Society understands quite well that being LGBT is not a matter simply of a hobby or predilection, but rather an illness that they suffer regardless of their will. The intolerability of irrational treatment based on the reason of gender dysphoria or on its treatment is the same as the intolerability of irrational treatment for the reason of other illnesses.”

One thing to consider is that the golf course has a bathing area, changing rooms and other “sensitive” facilities. The high court noted that the plaintiff is physically and in terms of appearance a woman, and that when she visited three times and used the bathing area and the changing room, there were no problems. Whatever damage the golf course operator envisioned it might suffer, the court said, was “nothing more than abstract fear.”

The opinion of other members of the golf course had no effect on the verdicts. The operator surveyed its members about the issue, and some 60 percent agreed with refusing her membership. The courts investigated the survey, however, and noted that it was conducted after the suit had begun and that questioners pushed respondents to answer in a way that was advantageous to them. “The results of the survey should not be given much weight,” read the verdict.

Even if the survey had accurately reflected the opinion of the members, the courts ruled that customers’ opinions could not justify discrimination.

Transgender woman wins

OK, let’s turn now to a proper labor law verdict. But to do that, we’ll have to go back a way, to 2002.

The plaintiff, a transgender woman, was working at Company S. She had yet to undergo reassignment surgery, but she had been diagnosed with gender dysphoria and had begun treatment. Although she hadn’t yet changed her registered gender, she had changed her name to a more stereotypically female one and wore women’s clothes to work.

Company S dismissed her for violating their dress code. She sued for reinstatement, back wages and bonus. Tokyo District Court ruled in her favor and overturned the dismissal.

The court ruled that the employer could not prohibit an employee from dressing as a woman at work, or transfer her for doing so, if she would suffer great emotional stress by not dressing as such due to gender dysphoria. The employer also could not do so just because clients and customers object or feel uncomfortable, provided those feelings do not rise to the level that threaten to seriously hinder the fulfillment of tasks at work.

Case law remains sparse, but it seems that if LGBT people really want to take their grievances to court, the courts believe that employers must take the proper treatment of the LGBT community seriously.

The Sagamihara parallel

LGBT people account for 7.6 percent of the Japanese population, according to a 2015 survey by Dentsu Diversity Lab. This estimate means that 1 in 13 Japanese are lesbian, gay, bisexual or transgender. That means that any reasonably sized workplace is likely to have at least one LGBT member.

Sugita ‘s comment really irritates me. I cannot understand how a politician, or even a member of our society, can stand there and deny the existence of someone because they cannot procreate.

The defendant in the appalling massacre on July 26, 2016, of 19 severely disabled people in Sagamihara, Kanagawa Prefecture, said: “Those who can do nothing for themselves are a bane to society. On behalf of society, I did only what everyone else is thinking anyway.” He was confident in his pure fight in the name of justice.

His rationalization has something in common with Sugita’s comment. She might plausibly object that she has not called for the murder of LGBT people, so she shouldn’t be lumped together with a self-confessed mass killer. But at root, Sugita, like the Sagamihara suspect, denigrates and negates the existence of the “useless” human beings of the world.

Sugita has a daughter. What if she someday comes out to her mother? “I didn’t raise my daughter to be unproductive,” we can imagine her huffing.

Must our society be so rigid and conformist? Sugita claims she loves Japan’s history and culture more than any other politician, so she should know and be proud of the fact that ancient Japan was a hotbed of all manner of hugger-mugger and promiscuity — much of which was not at all “productive” in Sugita’s bizarre sense of the word.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union. She can be reached at tozen.okunuki@gmail.com. Labor Pains appears in print on the last Monday of the month. Your comments and Community story ideas: community@japantimes.co.jp

Devilish Japanese TV drama makes a mockery of workplace rights

Devilish Japanese TV drama makes a mockery of workplace rights

“You have the right to quit this company.”

The heroine utters this line at the climax of every episode of a TV drama series currently airing on Saturday nights, “Miss Devil” (“Devil of Human Resources”).

The setting is Kyoa Fire Insurance. Out of nowhere, a leggy beauty with sharp eyes and even sharper eyeliner arrives on the scene. The firm’s president reportedly headhunted her to overhaul corporate culture at Kyoa. Rumor has it that Mako Tsubaki made her name in the U.S. as a “termination consultant,” moving from place to place and firing people with outrageous abandon, cruelty and callousness (not unlike the character played by George Clooney in the 2009 film “Up in the Air”).

Miss Devil has a past shrouded in mystery, and employees are terrified of her — particularly one new hire, Hiroshi Saito. He is moved to a department whose sole mission is to find employees to downsize.

Each episode drops another crumb on a trail that seems to lead to some dark secret lurking in Tsubaki and the firm’s past, a secret that the final episode will surely reveal.

Famed actress Nanao (who prefers to go by one name) plays the main role. A former “race queen” (a Japanese term for grid girl, brolly dolly, or pit babe, i.e. a promotional model that hangs around at motor racing events), Nanao, at 172 cm, is quite tall for a Japanese woman — taller than many men. People say she is “nine heads tall,” and that is no exaggeration. What a stunning figure she has! And how intimidating it would be to stand next to her (I’m only 152 cm). We can understand why she was cast to play this cold-blooded ice queen.

The devil enlists the young Hiroshi to decide who should be fired next. In real life it makes no sense to target new hires for dismissal, but this is TV drama world, so they do. Incidentally, some fans have gleefully detected an S&M theme with the young, cute and shy Hiroshi juxtaposed against the tall, super-mini-skirted older woman/dominatrix.

OK, OK, you’re right: A TV drama is, at the end of the day, nothing more than mind-candy entertainment. Maybe it doesn’t even deserve to be contemplated or analyzed. Perhaps it’s my occupational hazard, but whenever I see a drama about labor issues, I cannot help but think about these things.

Blaming the victim

Although each standalone episode tackles tough issues facing workers today, the last scene of each episode destroys any semblance of authenticity as Miss Devil struts in her high heels onto the scene to thwart the villain and save the day.

The seven episodes broadcast thus far have included the following storylines:

A woman whose husband has terminal cancer is being sexually harassed by her boss. She needs the job to pay her husband’s medical bills, so she endures it.

A middle manager in his 40s must clean up the mess left by a young man in his 20s who spends all his time enjoying himself (heaven forbid) due to the company’s new no-overtime policy. His unfinished work ends up on others’ desks. The middle-aged man’s frustration eventually explodes.

A pregnant worker is exploited by her male boss to showcase the company’s woke attitude when it comes to women. She begs her boss to “let” her quit, but he refuses, so as to protect the firm’s we-don’t-commit-maternity-harassment reputation.

So who in the above episodes got the ax? (Warning! Spoilers begin here:) The woman whose husband has terminal cancer; the man in his 40s who cleans up his irresponsible junior’s mess; and — you guessed it — the pregnant woman.

So why do these workers who did nothing wrong — who were, in fact, being victimized — get fired? Young Hiroshi wonders the same thing and asks her directly.

Fortunately, Tsubaki clears up any confusion. The employee whose husband has cancer, for example, had fraudulently misrepresented her performance and even forged contracts in order to increase her wages. Tsubaki knew it (somehow) from the very beginning. The woman, now exposed, turns away and sobs quietly. Tsubaki faces her and says, “You have the right to quit this company,” then lays a pen and paper on the desk. The weeping woman writes “Resignation notice.”

The woman’s sexual harasser boss doesn’t get away scot-free, though. He tries to hug Tsubaki. She says deadpan: “You do this (sexual harassment) again, and you’ll get even worse that what you’re about to get.” And with that, in her high heels, she delivers a perfect roundhouse kick to the boss.

Young Hiroshi goes and meets the woman some time after her resignation, expecting her to be depressed. But in fact, she’s quite relieved. She had shocked herself by going as far as to commit fraud to pay her husband’s medical bills, but now she was free of that and free of the sexual harassment she had endured — and free to spend what little remaining time she had with her ill husband. (No mention is made of how the bills are now getting paid despite no wage income.) Hiroshi sees the joy in the woman’s face and realizes that Miss Devil is in fact a heroine.

The other stories are similar: Each firing has some deeper purpose that in the end benefits the hapless victim. This authoritarian lesson boils down to “It’s for your own good” and “I know what’s good for you more than you do yourself.” In each case, Miss Devil delivers the liberating line deadpan: “You have the right to resign from this company.”

Firing is your friend

What the heck? She roundhouses the bad guy but drives his victim out of the company? Yet each time she fires an employee or pressures an employee to resign, the ordeal is portrayed as a good deed and even a kindness to the victim.

She’s unreal — a cardboard cutout superhero, a female Ultraman or Power Ranger. The show’s writers insinuate that this “ax woman” is the only one who can expose the injustices and bullying happening at the company, and that her cruel persona is necessary to give her the opening to fight the good fight.

I cannot accept this whole premise. Of course, workers have the right to resign. But that choice is up to the individual’s free will, rather than something they should be pressured into. Another right is the right to continue to work at a workplace. Leaving is not the only solution to every job-related problem.

Each problem must be solved at the workplace, among workers. Tsubaki lacks that imagination. She sees — and we are asked to see — separation as the cure-all for workplace blues. Many viewers might wish a Miss Devil worked at their company to deal justice to a hated boss, but one person alone cannot create a good workplace environment.

Another premise of this drama that I find unnatural is that the fired (or forced-to-resign) employees all come to feel thankful for Tsubaki’s tough love. Few firings result in such happy endings in real life, in my experience. It is difficult even to fight against unfair dismissals. The show’s creators are perhaps trying to brainwash management and workers alike into thinking that dismissals make people happy.

There’s also the gender issue. Tsubaki does a great job in smashing the fixed role assigned to women in Japanese companies: smiling, polite, thoughtful. She shuns all politesse and tatemae (pretense) and represents the polar opposite of the blushing coquette image that many women in Japan cultivate so well. Some viewers may want to emulate her calculated cool. I can understand this, too.

But she is the enemy of her co-workers at Kyoa Fire. Recall that she was headhunted precisely to help heads roll. She is an outsider coming in to rip apart the workforce at the behest of management.

Another assumption is that the women who were already in the company (and not exposed to transmogrifying foreign/U.S. influence) are helpless without the aid of this outside heroine. The drama’s loud, obnoxious message flies in the face of the reality that women can and do band together in solidarity to improve conditions at workplaces every day. Together, these women hold the real power, not one tough cookie of a superheroine.

Abe walks a tightrope on Japan’s foreign worker policy

The number of foreign nationals working in Japan reached its highest-ever level in October 2017 at 1,278,670, according to a study by the labor ministry (bit.ly/mhlwhoudou). The foreign proportion of the population remains tiny compared to that in European countries or North America, yet the impact of the growing ranks of foreign workers is considerable in Japan, where the myth of ethnic homogeneity stubbornly persists (despite the existence of minorities, such as the Ainu and Okinawan people). What is this impact?

Well, that depends on the type of citizen being impacted upon. Let’s divide the citizenry into three broad categories based on their basic attitude toward foreign residents in general.

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中労委は、組合妨害阻止命令を支持

中央労働委員会は、2018年3月29日(木)に、東ゼン労組が文際学園を相手に不当労働行為の救済を申し立てた件について、東京都労働委員会の命令を支持するという判断を下した。
東ゼン労組は、2013年に同学園が組合活動である情宣活動を妨害したと、主張して東京都労働委員会に不当労働行為の救済を申し立てた。それに対して、都労委は2016年1月に、文際学園に妨害を阻止し、組合に謝罪するよう命令した。
しかし、都労委は、もうひとつの不当労働行為(組合活動の理由により、ある組合員が解雇された問題)の救済を棄却した。
しかし、妨害の件に関しては、文際学園は、中労委に不服を申し立て、組合側は、解雇問題に関して不服を申し立てた。中労委は、木曜日にどちらの不服を棄却した。

National Labor Board Upholds Ruling Against JCFL

Victory!

The Central Labor Relations Commission ruled on Thursday March 29th that Japan College of Foreign Languages (JCFL, a division of Bunsai Gakuen) had illegally interfered with Tozen Union’s leafleting actions in front of the school.

Tozen Union and its JCFL Local argued that management interfered with legitimate union activity by sending employees out to block the union from passing out leaflets at two separate leafletings in 2013.

In January of 2016, Tokyo Labor Relations commission ruled in favor of the union’s petition, ordering management to cease all such interference and to post a large sign apologizing to the union at the workplace for ten days.  Management immediately appealed.  That appeal was formally rejected on Thursday.

The victory was thanks to the relentless struggle of the local.

Lessons on life, love and compassionate leave from a silly old bunny

This month I will explore compassionate leave — called kibiki kyūka in Japanese — the days you take off after losing a close family member. I chose this topic because I recently suffered a string of painful losses. Please bear with me as I relate to you what has happened to my loved ones over the past couple months.

Do you remember my granny bunny? I told you about her and the need for pet loss leave exactly a year ago in my February 2017 column, “Japanese need to take more leave, starting with when beloved pets pass.” Readers from around the world wrote to me in response to that article, empathizing, expressing warm wishes, like “I wish I could have taken off work after I lost my hamster” and “I feel such sadness when I remember my cat’s death.”

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Court cases shine a light on Japan’s problem with paternity leave

BY 

CONTRIBUTING WRITER

The Japanese government wants to raise the number of fathers taking paternity leave from 2016’s 3 percent to 13 percent by 2020, but two recent court cases show how hard it can be for some fathers to take their legally mandated paternity leave — especially if difficult pregnancies complicate the situation before the child is born.

On paper, mothers and fathers are entitled to take child care leave (ikuji kyūka) at the same time for up to a year and receive two-thirds salary for the first six months and half salary for the second six months. However, eligibility depends on having worked for your current employer at least a year and expecting to be employed a year later.

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外国人にも無期転換逃れ? 仏政府公式「日仏学院」やベネッセ子会社で労使紛争

今年4月から適用がスタートする「無期転換ルール」。契約が反復更新され、通算5年を超えた場合、労働者は希望すれば、有期雇用から期間の定めのない労働契約(無期雇用)に転換できるというものだ(労働契約法)。

人手不足を背景に、前倒しして実施する企業もある一方、無期転換逃れをはかる使用者もあり、労使の攻防が続いている。問題に直面しているのは、日本で働く外国人労働者も例外ではない。

●「サイマル国際」グループ会社に事業譲渡、教員100人超が解雇

通訳や語学研修などを行なう「サイマル・インターナショナル」の外国人講師100人超は2017年11月、突然、2018年3月末までの解雇や契約終了を通知されたという。勤続10年以上の人もおり、「無期転換権」を取得できたはずの人が多く含まれていた。

理由は、会社の事業譲渡。講師たちがいるサイマルの部署を閉鎖し、別の会社「ベルリッツ・ジャパン」に移すためだという。講師たちは、希望すれば選考はしてもらえるが、採用の保証はない。

サイマルの教員組合はこれを無期転換逃れだと考えている。というのも、サイマルとベルリッツは、ベネッセグループのグループ企業(子会社)だからだ。

ただし、法的に争うのは容易ではない。外国人の労働問題にくわしい指宿昭一弁護士は、「法廷に持ち込まないと決着が難しい。容易な裁判にはならない」と指摘する。

「ただし、同一グループ内での事業譲渡で、無期転換を免れることができるなら、やりたい放題になってしまう。撤回してほしい」(指宿弁護士)

一方のサイマル側は「無期転換逃れということは全く考えていない」と否定。「事業譲渡は以前から検討しており、たまたまこのタイミングになってしまった。全員は無理だとしても、雇用の機会には最大限配慮している」と回答している。

●フランス政府公式なのに…日仏学院は悪条件での無期転換か、契約終了を提示

フランス政府公式機関の語学学校「アンスティチュ・フランセ」(日仏学院)の講師たちも無期転換逃れを主張している。

学院側は講師に対し、給料約3割カットなどの条件悪化で無期転換するか、契約を更新しないかを選ばせているという。すでに条件を呑んでしまった講師もいるが、東京の講師たちが抵抗。東京都労働委員会に不当労働行為救済の申し立てをしている。

(弁護士ドットコムニュース)

Why Japanese people keep working themselves to death

TOKYO — Years after losing his son, Itsuo Sekigawa is still in shock, grief-stricken and angry.

Straight out of college in 2009, his son Satoshi proudly joined a prestigious manufacturer, but within a year he was dead. Investigators said working extreme hours drove him to take his own life.

The young engineer fell victim to the Japanese phenomenon of “karoshi,” or death from overwork.

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NS Solutions case is latest battle in long war against sexual harassment

The first time a court in Japan ruled on the issue of sexual harassment was on Aug. 5, 1989. On that day, in what has become known as the Fukuoka Sexual Harassment Case, the Fukuoka District Court found the individual harasser and the employer responsible for damages.

 

The Equal Employment Opportunity Act (EEOA) had been enacted three years earlier, but awareness of issues affecting women in the workplace was still low in Japan; they were considered “workplace flowers,” “seat warmers until marriage,” “male workers’ assistants” or even “unsold Christmas cakes.” The last epithet referred to those whose values as women were said to be plunging because they had not married by age 25 (with Christmas Day being Dec. 25 and all).

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