| ILLUSTRATION BY CHRIS MACKENZIE

Japan sees progress on sexual harassment, but some still don’t get it

BY HIFUMI OKUNUKI

Once upon a time, the English word “harassment” was unfamiliar to Japanese ears. Over the past quarter-century the word has burrowed its way deep into the collective consciousness, at times even replacing the Japanese word iyagarase. Today one would be hard-put to find a citizen unfamiliar with the English version and its many derivatives (see below).

What gained the word “harassment” some PR traction was the selection in 1989 of the Japanese transliteration of the English expression “sexual harassment” for the Word of the Year contest’s Grand Prize (ryūkōgo taishō). In Japanese, this term becomes quite a mouthful: sekushuaru-harasumento. The shortened form, seku-hara (a syllabic acronym, which is quite common in Japanese), has become firmly entrenched in the Japanese lexicon, bucking the transient trend of many fad words. These expressions in turn gained recognition value thanks to Japan’s first-ever sexual harassment lawsuit filed the same year, with the ruling on that case handed down by the Fukuoka District Court in April 1992.

The syllabic acronyms didn’t stop with seku-hara. We now have pawa-hara, aka-hara, doku-hara, kaji-hara, mata-hara, pata-hara, and lots of other hara. Respectively, they stand for power harassment, academic harassment, doctor harassment, housework harassment, maternity harassment (see ” ‘Maternity harassment’ verdict benefits women, men — and our humanity,” Labor Pains, Oct. 29), and even paternity harassment.

The ubiquity of these terms helps us visualize the issues and raises our awareness. On the downside, I have seen such jargon used in a cavalier, joking or teasing manner, perhaps due to its overuse.

In 1999, a decade after the term seku-hara debuted on the Japanese scene, the Diet added a provision to the Equal Employment Opportunity Act (kintō hō) that obliged employers to take measures to prevent sexual harassment against women at the workplace. The kintō hō was revised again in 2007 to include male victims, then last year enforcement rules were tweaked to include same-sex sexual harassment.

Note that this law holds the employer responsible for the actions of sexual harassers among their workforce. It does not directly hold the harassers themselves responsible. Indirectly, it forces employers to prevent such behavior and to discipline workers who are guilty of it.

Japan Post was embroiled in a sexual harassment scandal in the early 2000s. Late one night, the accuser decided to bathe in the workplace shower room. After the bath, he was drying off and was naked from the waist up. His female boss barged in without a knock, approached him and looked him up and down. This was followed by a barrage of questions, including “What are you doing?” and “Why are you bathing?”

In September 2004 the district court ruled against the boss, saying her actions constituted sexual conduct that made him “uncomfortable,” and that Japan Post had failed to take appropriate measures as an employer after learning of the problem. The court ordered the employer to pay ¥150,000 in damages.

The employer appealed to the Osaka High Court, which in June 2005 overturned the lower court’s ruling, stating that the boss’s actions fell within the remit of her work duties, which that night included patrolling the workplace.

The Ministry of Health, Labor and Welfare recognizes two types of seku-hara: quid pro quo (e.g., pay cuts, demotion or dismissal for refusing unwanted sexual advances) and environmental (unwanted sexual words or actions that hurt the work environment or impede the worker’s performance, including jokes, teasing, persistent asking-out on dates, gratuitous touching and pressure to engage in sexual relations).

So, on the one hand we have the legal framework to tackle sexual harassment. On the other, awareness of the issue remains sorely lacking.

Take the now-infamous speech on the issue of Japan’s shrinking population by Tokyo Metropolitan Assembly member Ayaka Shiomura last June. Akihiro Suzuki of the Liberal Democratic Party heckled her with gems such as “Aren’t you married yet?” Other yet-to-be-identified male members of the assembly chimed in with “(Talk about that issue) after you give birth,” “Go for it!” and “You can do it if you have the desire.”

Rather than objecting on the spot, Shiomura tried to shrug it off with a half-hearted laugh, yet it was obvious (at least to me) that inside she was seething. Why did she let it slide at the time and gloss over it with an uncomfortable smirk?

Because she knew full well that she would be subjected to criticism if she protested in fury right there at the podium. She knew the form such criticism would take, too: “She gets emotional too easily,” “She blows things out of proportion,” “She’s childish.” These jabs — sometimes coming from other women — are par for the course for women who make a stand and speak their minds.

Shiomura unconsciously calculated that it would be most appropriate to pretend the jeers were only an innocent moment of levity — that it was somehow OK to insinuate that a female colleague is just a silly little thing who can help solve the nation’s population crisis only by taking her pretty little head out of adult politics and instead getting hitched and sprogged up.

The main heckler — the only one identified — got away with it, too. Having been spared any disciplinary proceedings, Suzuki has had no chance to fully reflect upon his own insensitivity, and he is thus likely to repeat such comments.

My point is that laws alone will not eliminate sexual harassment. We who live in and indeed create this society need to cut the chains ourselves. This whole episode hit home for me, convincing me that we need to be liberated from our preconceived notions of what it means to be a woman, what it means to be a man.

Just last month, the Supreme Court handed down a ruling against two male middle-managers of a famous aquarium in Osaka called Kaiyukan.

The two had harassed a female subordinate with unwanted sexual language for almost a year. The aquarium suspended and demoted them both. They sued the aquarium, claiming the discipline was too severe and that they hadn’t realized that the accuser didn’t appreciate their sexual speech.

The man who was suspended for a month had gotten his subordinate alone and started saying things such as “My wife and I haven’t had sex in years” and recounted sexual details of his affair with his mistress. He was also sure to let the accuser know whenever he saw a female aquarium visitor he fancied.

The other employee, who was suspended for 10 days, had made comments such as: “Haven’t you got a boyfriend?”; “You’re that age! What are you doing not being married and all?”; Don’t you know you’re making your poor parents cry?”; “Hey, why don’t you give nighttime work a shot? The pay is great!”

Incidentally, both men had undergone sexual harassment training organized by the company. They reportedly complained about the training, saying, “If we listen to all that hooey, we won’t be able to talk to girls at all!”

Osaka District Court upheld the discipline as fair in September 2013, but the Osaka High Court ruled that while the comments did indeed constitute sexual harassment, the discipline was overly severe. The high court said that because the accuser had not clearly reject the comments, the men had misinterpreted that to mean that they were acceptable.

The Supreme Court sided with the district court: “Although the victim of this workplace sexual harassment felt extraordinary levels of discomfort and loathing, she hesitated to report the conduct to the company, fearing such an accusation would hurt her relationship with her coworker,” the judges said. The nation’s highest court rejected the claim that her failure to express clear rejection mitigated the harm, thereby affirming the fairness of the disciplinary measures.

“The extremely inappropriate comments caused the woman strong discomfort and humiliation and adversely impacted upon order and workplace discipline at the company in a manner that cannot be overlooked,” the court ruled.

This Supreme Court decision was the first ever to uphold a company’s disciplinary measures while recognizing sexual harassment could consist of language alone. I find myself in the unusual situation of applauding a court verdict in favor of a company and against a worker. In this case, I agree with the court’s strict stance against sexual harassment, even when said harassment is strictly verbal.

At the same time, we should never rely solely on the courts. We must be strict with ourselves — each and every one of us — and think seriously about why we must abolish sexual harassment. Too many people tend to turn perpetrators into victims, making comments that illustrate a complete lack of understanding — you know the sort: “Times are getting really tough, the courts are cracking down, so I guess now we’ll have to watch what we say and do all the time.”

All I can say to such people is: You don’t get it.


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 tozen.okunuki@gmail.com. Each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.

Originally published here.