Ladies & The Law: Battling The Invisible Enemy Behind Every Maternity Harassment Case
A sign of employer inflexibility that needs to be addressed
Why do women continue to face the “work vs. raising children” issue despite well-established laws purporting to facilitate careers for working mothers?
In Japan, the government claims it wants a society where women in the workplace can “shine,” while simultaneously also telling women they should have more children to arrest the country’s population decline. The government surely tells itself (and tries to persuade the world) that it has a sufficient legal regime to allow both of these goals to be simultaneously pursued.
Indeed, there are laws providing (1) time off for prenatal care, (2) maternity leave, and (3) childcare leave (for either parent) as well as laws specifically (4) prohibiting disadvantageous treatment of women relating to their pregnancy or childbirth. It all looks great on paper.
Yet, the situation of working mothers (and mothers-to-be) remains difficult, even tragic, in many cases. The following are, sadly, just a handful of the many cases where lack of support and understanding of mothers and or mothers-to-be in the workplace shows how poorly corporate Japan does when it comes to supporting and valuing working mothers.
More than a lack of support…deliberate sabotage
Mother A, a clerical worker near the end of her second one-year employment contract, was threatening to miscarry in her 11th week of pregnancy. Her doctor ordered her to stay at home on bedrest for two weeks. Her supervisor visited her at home, but rather than showing concern for her, told her that if she did not return to work right away, it would be impossible for the company to renew her current employment contract. She reluctantly returned to work and suffered a miscarriage. Her supervisor suggested that she should concentrate on her job for a few years before again considering starting her family.
[T]he situation of working mothers (and mothers-to-be) remains difficult, even tragic, in many cases.
Mother B, a teacher at a language school, was unable to find a childcare placement for her baby at the end of her childcare leave and asked if she could work part-time for a while. Her school insisted that in order to do this, she would have to agree to change her employment status from regular employee to contract employee. She agreed. At the end of her one year contract, the school notified her that they would not offer her a further contract.
Mother C, a physical therapist whose job involves making house calls on patients found the house calls too physically demanding in the late stages of her pregnancy and asked to be placed on lighter duties, something she is legally entitled to under Labor Standards Act Art 65(3). Her employer agreed to re-assign her to in-hospital duties but told her she would have to be demoted from her current manager-level job as a result. When she returned from her maternity and childcare leave, she learned that the hospital has no intention of reinstating her to her earlier manager-level position, even though she had understood her change of status to be a temporary one related to her pregnancy.
These and other forms of discrimination against pregnant women or working mothers have a name in Japan: maternity harassment (mata-hara).
Why does mata-hara continue when the law is clear?
While there have been judicial decisions in both lower courts and the Supreme Court of Japan ruling that employer actions such as those described above are illegal and ordering damages to those mata-hara victims, sadly, mata-hara continues to be a problem. In Mother C’s case in 2014, the Supreme Court made the legal position quite clear:
“The purposes of the Equal Employment Opportunity Act are to promote securing equal opportunity and treatment between men and women in employment and to promote measures […] to ensure the health of women workers with regard to employment during pregnancy and after childbirth. Under the basic principle of enabling women workers to engage in full working lives, with due respect for motherhood, the Act prohibits dismissing or giving disadvantageous treatment to women workers by reason of pregnancy, childbirth, requesting maternity leave before childbirth, taking maternity leave before and after childbirth, or by other reasons relating to pregnancy or childbirth.”
In spite of this direct judicial mandate, the question remains: Why, if the law is so straightforward, does maternity harassment continue? The problem is perhaps best characterized as one of social attitudes. It is often said that society expects career women to work as if they have no children and raise their children as if they have no other job.
A substantial portion of the Japanese population still accepts the 1950s notion that women should manage the house and family while men go out and earn a living. Of course, this notion no longer accurately reflects the structure of Japanese society, but it seems to have been so deeply internalized that it has become subconscious. Accompanying this is the attitude of employers that employees should give themselves 100% to the company’s needs, ignoring all else. That may have been possible for men back in the latter half of the 20th century when women stayed at home and took care of all a man’s personal needs so that he could concentrate on his work, but, again, this view is no longer realistic or accurate.
Her supervisor […] told her that if she did not return to work right away, it would be impossible for the company to renew her current employment contract.
Thus, we continue to see employers harassing female employees to ignore their own bodies or their family needs and instead place the company’s needs first, notwithstanding laws to the contrary. Curiously, many employers also seem to ignore the employee shortage created by Japan’s demographics and treat women as expendable members of the workforce.
Perhaps some of this issue is a matter of legal consciousness, the extent to which employers and those in supervisory positions are aware of these laws. Some women tell of confronting their managers with the illegality of the manager’s words/actions only to be told that while the Human Resources Department must observe the laws, the manager’s words/actions are merely an “advice,” not a work order and therefore not illegal. This same attitude also results in power harassment, another distinctively Japanese workplace problem. (Just for the record, the position is, in fact, incorrect: managers are acting on behalf of the company and must comply with all legal requirements.)
Besides harassment of pregnant women or young mothers by their work supervisors, there is also a problem with colleagues. Many colleagues are resentful of women who need time off or reduced duties due to their pregnancy or family situations. Why? Because generally, the absence of any employee places additional burdens on other employees.
Such situations should not, of course, be blamed on the absent employee, but rather are the fault of the employer for not adequately managing the situation by backfilling or otherwise ensuring that the work is covered without just piling it onto other team members who already have full workloads. But somehow, unfortunately, the employee is often an easier target for her colleagues.
In light of this, one wonders whether the government’s latest proposal to facilitate work by mothers will help: allowing so-called “regular workers” (seishain) to work an agreed schedule of less than 40 hours per week without losing their status as regular workers. In theory, this is a great idea, although it’s yet to see formal implementation. Such a system would keep women engaged and committed to their jobs and preserve their career prospects while also allowing them to shoulder parenting burdens. It could also be utilized by fathers and employees who have other family demands, such as aging parents in need of care. But it’s only going to work if employers become more flexible with work assignments and plan staff deployment accordingly. Otherwise, we can expect that anyone seeking this type of accommodation will be harassed for their choice or possibly even forced out of their job.
What’s it going to take?
Perhaps it’s going to take more women speaking up for themselves and seeking legal recourse when necessary, as the women mentioned above have done. But that’s not necessarily an easy thing to do, especially at a time of life when one feels particularly overwhelmed or vulnerable.
Seeking advice at the local Labor Standards Office may be easier. The more people do this, the more officialdom will become aware of the size of the problem. They may even begin looking into company behavior toward pregnant employees and new mothers as part of their regular audits. That could drive employer conduct in the right direction.
Also, as it has done with other forms of harassment, the government needs to consider requiring employers to have specific policies prohibiting maternity harassment (or even parental harassment), to train employees on this type of harassment and how to avoid it, and to have mechanisms for investigating and punishing harassers. This would shine a light on the behavior and make it clear to all that it is unacceptable.
Vicki L. Beyer is a Professor of Law at Hitotsubashi University Graduate School of Law Business Law Department.
Savvy Tokyo’s series “Ladies And The Law” digs back in time tracing the catalysts for change in Japanese laws that directly or indirectly affect women and their families. If you have a topic you would like us to cover through a real court case, contact us at email@example.com