By Hifumi Okunuki
Last month, a new ANA commercial hit the airwaves — and quickly ran into some serious turbulence.
The scene is Haneda Airport. Two Japanese men dressed as pilots stand with their backs to the camera.
“Haneda has more international flights nowadays,” says one.
“Finally,” replies the other.
“Next stop, Vancouver,” the first man says.
“Next stop, Hanoi,” his friend replies.
“Exciting, isn’t it?”
“You want a hug?” the taller man says, out of nowhere. The shorter man stares at him in bewilderment.
The man who proposed hugging criticizes him, saying, “Such a Japanese reaction.”
“Because I am Japanese,” the man says in his defense.
“I see,” says his partner, before falling into a contemplative silence. “Let’s change the image of Japanese people.”
When the camera returns to the shorter man, he is wearing a blond wig and a false nose of Pinocchio proportions. “Sure,” he says.
A voiceover then intones the All Nippon Airways slogan, “From Haneda to the world, ANA,” and the commercial ends.
As soon as this ad aired, ANA was inundated with criticism. The thrust of the complaints was that the ad was racist and exaggerated the physical features of white people to point of mocking them.
ANA did not seem to have anticipated such a reaction. It swiftly apologized and removed the offending final image from the clip on TV and online. (Though it was only the TV commercial that received criticism, they also took down posters of one of the actors from the commercial wearing the traditional dress of various countries.)
What interested me in particular was the difference between the reactions of Japanese and foreigners who saw this ad. At my labor union there are members of many different nationalities, the large majority of whom expressed unhappiness or indignation toward the ad. “How did they fail to anticipate this would offend people?” many asked.
On the other hand, Japanese people I know reacted with bewilderment. “It’s certainly childish,” their comments tended to run, “but I couldn’t call it racist. On the contrary, since blond hair and big noses are something that in Japanese culture have long been held up as attractive, the ad is more an expression of Japanese people’s sense of inferiority.”
My personal opinion is that the ad is a disappointing anachronism, and a reminder of the parochial outlook of large Japanese corporations. The ad appeals to the facile formula that “foreigner = white = blonde and big-nosed = English-speaking = globalization.” But this feels bizarrely outdated and out of place coming from ANA, a major carrier trying to depict the airport generically — and Haneda in particular — as some sort of stage for exchange between the world’s many races and nationalities. Instead, the ad unintentionally shows that the Japanese archetype of thegaijin (foreigner) remains as strong as ever.
So why is it that so many of the Japanese people I spoke to couldn’t understand why foreigners would be angry about this “racist” ad? I think, fundamentally, it has to do with the very narrow image that postwar Japan has had of what “abroad” and “foreigners” mean. Because postwar Japan has been politically, socially, culturally and in almost every other respect in thrall to the West — and particularly the United States — the view that blond, big-nosed, blue-eyed and English-speaking are somehow “better” or the “global model” is widespread.
At the same time, the former targets of Japanese invasion in Asia, such as China and South Korea, have been largely ignored. Political leaders have avoided the question of responsibility for the war, and ordinary people have relatively little opportunity to study their own recent history. Japan has considered itself as separate from Asia, due to its status as the only Asian country that succeeded in developing into a major economic power. For postwar Japan, “foreign” has basically meant “American.”
As Japan’s own economic engine has puttered out, China has started to grow rapidly and South Korea has become a major hub of popular entertainment and industry, and many Japanese now feel threatened and see these countries as rivals.
The Japanese media have been eager to belittle their neighbors. And so, Japan, which up to now had adopted a “see no evil, hear no evil, speak no evil” attitude to its history of war against its neighbors, is at the stage where its politicians are actively trying to make excuses for its past aggression and are even trying to apportion blame to the Koreans and Chinese.
Japan is thus far from becoming “global” in any real sense of the word. In a nutshell, the world for Japan consists of China and Korea — the objects of resentment and controversy — and the rest, who are all blond, big-nosed English-speakers.
Japanese women’s magazines often run articles with titles like “How to do your makeup for that foreign look” or “half look,” where “foreigner” obviously means “white Westerner” and “half” means “a half-Japanese, half-white mix.” No one who reads these headlines would consider that they could be referring to half-Chinese or half-Filipino Japanese, even though we inhabit a world of around 200 different countries, most of which are majority non-Caucasian.
It’s from this perspective that the trade ministry is raising its voice and calling for Japan to prepare workers with a more “global outlook” and to stop the trend of young people “looking inward” (uchimuki).
This is laughable. It would certainly be better if young people looked out at the world, provided they recognize and appreciate its true ethnic, linguistic and cultural diversity — and that this diversity cannot and should not be ranked in terms of which traits are better or worse. That would be some real globalization.
Apologies for the long buildup, but I felt this commercial brought up an important point regarding the situation of foreign workers in Japan. But first, I would like to ask readers what they think: Do Japanese businesses discriminate against foreigners?
Japanese labor law has only one or two articles that touch on the subject of foreigners. The crucial one is Article 3 of the Labor Standards Act, which states that “an employer shall not engage in discriminatory treatment with respect to wages, working hours or other working conditions by reason of the nationality, creed or social status of any worker.”
This is called the principle of equal treatment. Nationality is considered to encompass the concept of race in this article.
It’s not necessarily a bad thing that Article 3 is the only section of the Labor Standards Act that refers to foreigners. Since every article of labor law should apply to every person working in Japan, I don’t think there’s any need to make any special mention of foreigners elsewhere.
So, if Japanese labor law protects foreigners and Japanese equally, what’s the problem? Let’s look at the Tokyo Kokusai Gakuen case (Tokyo District Court, March 15, 2001).
The defendant was a language school that employed the 16 plaintiffs in the case (of whom three were Japanese) as teachers. The case centered on claims of unpaid wages and security of contract renewals.
The foreign teachers were employed on a separate contract to the Japanese teachers (the contract was called the “Foreigner Contract”). The difference between the two contracts was that the one the Japanese instructors were on was permanent, whereas the foreigners were on fixed-term contracts. The plaintiffs alleged that this difference violated the aforementioned equal-treatment principle.
On this point, the court ruled against the teachers, finding that “the difference in contracts did not violate Article 3 of the Labor Standards Act” — the reason being, the court said, that “foreign teachers were employed as temporary, semi-regular staff and were given higher pay to compensate for the difference. The school did not discriminate in any other way.”
In other words, the court found that since the foreigners had no corresponding complaint about being paid more than Japanese in the same work, then it was not discriminatory for foreigners to be denied permanent employment.
This finding brings to mind the attitude that my Japanese friends had with regards to the ANA commercial: Sure, foreigners get a ribbing, but the racial traits exaggerated in the ad are desirable to us, so it can’t be racist. In a similar vein, according to the Tokyo District Court ruling, foreigners are on fixed-term contracts but they get paid more, so it can’t be discrimination.
I cannot agree with the court’s reasoning. High pay doesn’t make limiting foreigners’ term of employment fair. Isn’t it in principle discriminatory that Japanese are automatically put on lower-wage permanent contracts, and foreigners are automatically put on higher-wage limited-term contracts, completely disregarding the wishes of any of the individuals concerned?
Why is it that just because you are a foreigner, permanent employment is automatically off the table? And why does higher pay justify limited-term contracts? No rational reason comes to mind.
I think the principle of equal treatment established in Article 3 of the Labor Standards Act is a wonderful thing. The reality, however, is that constant violations of the principle persist in Japanese workplaces to this day.
It is important, now more than ever, for working people to fight for all workers’ rights to equality and security at the workplace. This is not something employers should be able to use to divide their employees. Instead of pandering to the grotesque caricature of globalization in ANA’s ad, employees would be better off heeding the global call of “Workers of the world, unite!”
Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at firstname.lastname@example.org. On the second Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.
This morning Tozen JCFL Local members, Tozen members, and supporters conducted a leafleting at JCFL in an effort to build our union there. Below is our report.
After gathering we walked together towards the school, put on our armbands, and got to leafleting. We began leafleting at 8:40. Several staffers immediately stood in front of the union members attempting to block them. The members kept their cool and persisted in leafleting, trying hard to get the leaflets to the students without touching the staffers. I tried to confront the staffers individually, informing them that this was a union action and they should not interfere. The staffers either ignored me or told me that they were outside to protect the students from cars, and that they are out there every day. Principal Iizuka said this several times as well. School staff, however, do not greet students in the street on a daily basis.
Tozen member Sulejman Brkic was bloody illegally fired.
ICC Language Schools is a language school that has six branches in the Kanto area, with its headquarters in Yokohama. Sulejman Brkic has been teaching English and French courses at this school for twenty years. He has always been very popular among his students, not only because of his superb teaching skills, but also for his charming personality and his wry sense of humor. Sulejman loves his job, and has worked passionately for the past two decades.
The ratio of nonregular workers in the labor force in 2011 hit a record average high of 35.2 percent, excluding [Iwate, Miyagi and Fukushima] the three prefectures severely affected by the March quake and tsunami, up 0.8 point from 2010, according to data compiled by the Internal Affairs and Communications Ministry.
The average for the year hit a record for the second straight year, the ministry said Monday.
The rise appears to have stemmed from the growing tendency of firms to hire fewer young people as regular workers and rehire veteran workers on a contract basis after their retirement.
By age bracket, the ratio of nonregular workers came to a record 32.6 percent among people aged between 15 and 34, while that among workers aged 55 and over was 51.5 percent, also an all-time high, the ministry said.
Nonregular workers aged between 15 and 34 numbered 1.7 million, up 20,000, it said.
The labor ministry proposed Wednesday requiring companies to keep their workers employed till the age of 65 if they wish to continue working even after reaching the retirement age of 60, in light of the government’s plan to raise the pensionable age from 60 to 65 in stages.
It is uncertain, however, if the bill would be enacted as expected, as employers are opposed to making continued employment obligatory.
Under the current law, companies are obliged to keep their workers employed until they reach 65, but the law also allows firms to select which workers to employ based on various criteria including their ability.
The ministry also said raising the retirement age itself to 65 would be “a mid- to long-term agenda.”
So what rights do foreign residents have under the Constitution? Well, according to the Supreme Court, they are entitled to all the same rights as Japanese people, except for those which by their nature are only to be enjoyed by Japanese people. Does that help?
This Delphic guidance comes from a very important 1978 Supreme Court ruling in what is known as the McLean Case. Ronald McLean came to Japan as an English teacher in 1969 but quickly got involved in the local anti-Vietnam War protest movement. When he sought to renew his visa, the Ministry of Justice refused. He challenged the denial in court, asserting that he was being punished for engaging in lawful political activity, exercising his rights to free speech, assembly and so forth.
He lost (of course), and although the case is supposedly significant because in it the nation’s highest court enunciates the general principle that foreigners enjoy some of the rights enumerated in the Constitution, it does so with a caveat: that even those rights are limited by the scope of the regime of immigration laws which allow them to enter, reside and work in Japan.
Take the case of Kathleen Morikawa, an American resident in Japan who was fined for refusing to be fingerprinted as part of the alien registration process of days gone by. When she applied for a re-entry permit for a short trip to South Korea, her application was denied and she sought recourse in the courts. In 1992 the Supreme Court declared that foreigners had no constitutional right to enter or re-enter Japan, and that the Justice Ministry’s refusal to issue a re-entry permit was an acceptable exercise of administrative discretion in light of her refusal to be fingerprinted.
“Ignore the law and pay the price” is a fair comment here, but what I find noteworthy about the Morikawa case is that it did not seem to matter that she had a Japanese spouse and Japanese children. That the Justice Ministry can punitively strip Japanese nationals of their ability to travel or even live with a family member would seem to be at least as important constitutionally as whatever rights foreigners may or may not have.
The fact that many of us may be willing to live in Japan essentially at the sufferance of the government does not mean that our Japanese spouses, children and other kin should not have their own independent constitutionally protected rights to a family life free from arbitrary bureaucratic caprice. Article 13 of the Constitution refers to a right to the “pursuit of happiness,” but meaningful court precedents tying this provision to a right to family life are thin on the ground.
Recent revelations by a former prosecutor about being taught by his superiors that “foreigners have no human rights” raise further doubts about whether Japan is really up to the legal issues implicit in globalization.
Finally, since Japanese courts often justify their decisions using references to shakai tsūnen (commonly accepted social norms), even constitutional decisions can tend to reflect a distinctly majoritarian bent. In some countries a judiciary committed to defending minorities and unpopular viewpoints combined with clearly defined constitutional protections is expected to function as a bastion of human rights. Whether this can be expected of Japanese courts is debatable.
The fact that many of us expats are still here nonetheless may thus be because of the inherent kindness of the Japanese people rather than any high expectations of their government. At the end of the day, perhaps that is what popular sovereignty is all about.
When female nonregular workers become pregnant, employers often refuse to renew their contracts. However, a Japanese-Brazilian woman in the Tokai region stood up and joined a local labor union to protest the practice.
“Because I have been working for the factory for a long time, I thought it was unacceptable that the company would not allow my child-care leave,” [Michelle Rosa Egidio, 35] recalled.
Egidio first came to Japan at the age of 19, registering at a temporary staffing agency. But for the past 14 years, she has been “on dispatch” to a printer factory in Mie.
Under the Temporary Staffing Services Law, manufacturers are allowed to hire temporary help for up to three years. After that, companies have to directly hire the worker if they want the person to stay on.
But according to the General Workers Union Mie Prefecture, which Egidio belongs to, her staffing agency and the factory masked her dispatch as contract work, which allows her to work longer than three years without the obligation to hire her directly.
When her three-year contract expired last July, the company hired her as a contract worker. Immediately after that, however, she found she was pregnant.
The law says that child-care leave can only be granted to workers who have been employed for more than a year.
On March 22, when the union was still bargaining with the company on her behalf, she gave birth to a girl.
As a result, the company effectively admitted she had been working there for a long time and agreed to offer paid and unpaid leave until the end of June, when she would have the right to take child-care leave from July through next March 21.
In Japan, where 70 percent of regular and nonregular female workers quit their jobs when having children, it is difficult for temp workers, whose contracts are renewed on a short-term basis and can be easily replaced, to obtain maternity and child-care leave, said Shigeru Wakita, professor of labor law at Ryukoku University.
“Since more than half of female workers are nonregular workers, it is necessary to create an environment where they can (work and) bring up children to tackle the falling birthrate,” said Wakita, chairman of the national forum for winning rights for nonregular workers.