Ladies & The Law: The Case That Recognized Hostile Workplace Sexual Harassment
One Woman's Early Battle Against Sexism At The Workplace
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In 1980s Japan, women in the workplace were often regarded as window-dressing (so-called “office flowers”) or helpmates. Many reported for work half an hour earlier than men, to brew the tea and clean their desks. Women were usually the ones to answer the phone first thing in the morning because men believed that hearing a “lively” woman’s voice was a good way to start the day. Intrusive personal questions and even unwelcome physical contact from male colleagues was also a “regular” behavior at the workplace.
This was the working world K. entered after graduating from university in late 1985 when she began working as a part-time editor for a small, independent magazine publisher in Fukuoka. It was a small company of just a few employees, but for her it was the job she had always wanted.
K. was greatly skilled at her work and became a full-time regular employee in early 1986. K. was not only a good editor, she was also a good writer. This led to more responsibility, including reporting, managing other writers and attending external events. Her star was on the rise.
Her boss, H., had been hired about six months before she was. He was described as introverted and quiet. He also had somewhat outdated ideas about the way that women should act. H. struggled with the fact that K. was so good at her job and felt threatened by her success.
Because of his decision-making authority at the magazine, in December 1987, H. tried to force K. to resign, citing financial difficulties at the magazine. Around this time, H. also began to spread rumors about K.’s private life, suggesting to her colleagues and to other business associates that she was promiscuous and wild and led a life better suited to “a bar hostess.” He also told people that a novel K. had written was pornographic and based on her own life experiences.
In 1980s Japan, women in the workplace were often regarded as window-dressing or helpmates.
When K. found out about the rumors, she complained to management. The representative director of the company told her that she was taking the matter too seriously and need to lighten up. S., another senior executive, judged that the problem was one of personal differences and suggested that K. and H. should talk things through and resolve their differences. K. wanted H. to acknowledge his bad behavior, publicly apologize and retract the rumors. H., on the other hand wanted K. to quit. There was no resolution to be had and the working atmosphere further deteriorated over the next few months.
Finally, in mid-1988, the company’s management determined that S. should mediate and that if the matter could not be resolved, one of the two should be required to resign. When he met with K., who suggested that he should confirm her story with outside sources, S. told her that she should just resign. Recognizing that the company was unwilling to support her, K. gave up and resigned. The magazine gave her a severance package of about one month’s pay plus a bonus of about one week’s pay.
But the case was far from solved for K. She was more angered by the way H. and the company had treated her than by the loss of her job, so she decided to sue H. and the company for monetary damages. At that time, Japan had no laws prohibiting sexual harassment, so K.’s claim was that the defendants had breached Article 709 of the Civil Code, a tort provision that states: “A person who has intentionally or negligently infringed any right or legally protected interest of another, shall be liable to compensate any damages resulting in consequence.” She alleged that her treatment at the hands of H. and the company caused her mental anguish and emotional suffering.
Although K. was suing in tort and the words “sexual harassment” don’t appear to have been used by her lawyers or the judge, her suit is regarded as the first hostile workplace sexual harassment case in Japan because of the allegations it contains and the court’s reaction to those allegations. While H.’s behavior, when viewed from the vantage point of current times, obviously created a hostile work environment for K., this wasn’t so obvious 30+ years ago.
Nonetheless, the Fukuoka District Court was convinced that H.’s behavior in spreading rumors about K. to damage her reputation and force her out of the company constituted an infringement of her rights to bodily integrity, liberty, honor, life, reputation, and privacy. The court went on to say that K. had a right to a non-hostile work environment, and H.’s behavior also breached that right. Once the court acknowledged K.’s rights and H.’s breach of her rights, it followed that H. had violated Article 709 and therefore owed damages to K.
Perhaps even more ground-breaking, the court held that the company had a responsibility to prevent sexual harassment in the workplace. Effectively this meant that the company’s attitude of “this is a personal problem; work it out between yourselves” was unacceptable. Finally, the court determined that by forcing the female employee to be the one to resign, the company had failed to treat men and women equally as required by Japan’s Equal Employment Opportunity Law (which had only been enacted in 1986).
The only disappointing feature of this early decision was that the court reduced the amount of damages that it awarded to K., finding her culpable as well because of her strong reactions to H.’s behavior—demanding an apology, becoming angry and defiant, refusing to discuss the matter calmly. This judgment by the court indicates an unconscious bias, that a woman needs to be calm and demure—dare I say, “lady-like”—, even when standing up for herself. That bias, which many still hold today, is unfortunate. It likely slows social progress in this area.
The court determined that by forcing the female employee to be the one to resign, the company had failed to treat men and women equally
Nonetheless, this decision represents a watershed for the notion of sexual harassment in the workplace. Although early sexual harassment cases like this one were tort claims—because there was no other statute making sexual harassment illegal—, the Equal Employment Opportunity Law was amended in 1997 to define and ban workplace sexual harassment and finally again in 2006 to require employers to take measures to prevent it.
Sadly, sexual harassment in the workplace continues to occur, as do some of the more benign degrading practices of the first paragraph above. But today there is no question that sexual harassment is prohibited, which fact should empower women to speak out if they are harassed.
Editor’s Note: In deference to the practice of Japanese courts, party names are anonymized or disguised.
Vicki L. Beyer is a Professor of Law at the Hitotsubashi University Graduate School of Law Business Law Department