The Japanese Economy and Economic Issues since 1945

Edward R. Beauchamp, Edward R. Beauchamp

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781135648978
• Edition: 1
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

First Published in 1999. The best scholarship on the development of contemporary Japan This collection presents well over 100 scholarly articles on modern Japanese society, written by leading scholars in the field. These selections have been drawn from the most distinguished scholarly journals as well as from journals that are less well known among specialists; and the articles represent the best and most important scholarship on their particular topic. An understanding of the present through the lens of the past The field of modern Japan studies has grown steadily as Westerners have recognized the importance of Japan as a lading world economic force and an emerging regional power. The post-1945 economic success of the Japanese has, however, been achieved in the context of that nation's history, social structure, educational enterprise and political environment. It is impossible to understand the postwar economic miracle without an appreciation of these elements. Japan's economic emergence has brought about and in some cases, exacerbated already existing tensions, and these tensions have, in turn, had a significant impact on Japanese economic life. The series is designed to give readers a basic understanding of modern Japan-its institutions and its people-as we stand on the threshold of a new century, often referred to as "the Pacific Century".

JAPAN’S EQUAL EMPLOYMENT OPPORTUNITY LAW: AN ALTERNATIVE APPROACH TO SOCIAL CHANGE

INTRODUCTION

One of the most important uses of law in modern times has been as an instrument of social change. The role of law in such areas as civil rights and women’s rights has been a particular focus of interest. Law has often been viewed by Americans as primarily an instrument of force, and a basic assumption in the United States has been that granting the injured parties access to the tools of coercion—either by granting a private right of action or by allowing the government to bring civil or criminal suit on behalf of injured individuals—is a prerequisite to achieving any genuine change, particularly when the targeted parties have a vested interest in the status quo or when the change will involve some kind of cost to them. Like the U.S. government, the Japanese government also uses the law as an instrument of coercion to bring about desired social goals.

One recent law in Japan, however, has experimented with an alternative approach. This is the Equal Employment Opportunity Law (EEOL), which was passed in 1985 in response both to pressure from abroad and to a changing domestic society. Eschewing legal sanctions to eliminate discrimination in employment, this law instead looks to noncoercive means to achieve social change.

This Note will examine Japan’s experiment in achieving social change in this basic and vital area: equality of economic opportunity between the sexes. Part I introduces the basic structure of the law and two major forces that led to its passage. Part II argues that the noncoercive, gradualistic approach embodied in the law was the right choice for Japan as it is presently situated, making it possible for the law indeed to accomplish what it was intended to do, and explores some of the societal mechanisms behind this success. Part III then examines the approach to social change embodied in the law, presents evidence on the success that the law has thus far achieved, and concludes with a brief look at prospects for continued change through the law.¹

I. THE IMPETUS BEHIND AND CONTENT OF THE EQUAL EMPLOYMENT OPPORTUNITY LAW

Japan knew that achieving freedom from discrimination in employment on the basis of sex would require change so basic and far-reaching as to shake society to its very roots, and it determined to effectuate this change through evolution rather than revolution, through voluntary compliance rather than coercion. The approach it adopted was persuasive, educative and mediative in character, based upon the twin pillars of voluntarism and gradualism.

At least two basic reasons explain Japan’s choice. The first is that the Equal Employment Opportunity Law came slightly before its time: equal opportunity employment for women was a change for which neither Japanese women nor Japanese men were entirely ready. The second is the Japanese judgment that a change in the social fabric of such great magnitude could best be achieved not suddenly and through the imposition of force from without, but rather incrementally and on a voluntary basis through a series of graduated steps: at each step, the social consensus would be raised to a certain intermediate level before going on to the next step of imposing a higher set of standards on society.

A. Structure and Implementation of the EEOL

An examination of the form in which the EEOL was cast and its method of implementation shows that the twin principles of voluntarism and gradualism are the primary means that Japan chose to ameliorate the problem of sex discrimination in the workplace.

1. The EEOL Itself. — The Equal Employment Opportunity Law—entitled officially the Law to Promote the Welfare of Female Workers by Providing for Equality of Opportunity and Treatment in Employment for Women²— resulted from the enactment of amendments to thirteen labor laws,³ chief among them the Working Women’s Welfare Law⁴—which was renamed the Equal Employment Opportunity Law—and the Labor Standards Law (LSL).⁵ The EEOL was enacted on May 17, 1985, was promulgated on June 1, 1985, and came into effect on April 1, 1986.⁶

The EEOL divides employment into five categories and establishes generalized standards for equality of treatment in each of the five. Concrete standards of enforcement for each of the categories in the form of “Guidelines” and “Ministerial Ordinances” were left for establishment by the Minister of Labor after the enactment of the law and before it came into effect. These Guidelines and Ministerial Ordinances were promulgated on January 27, 1986, and came into effect concurrently with the EEOL on April 1, 1986.⁷

The five areas of employment addressed by the law are: (1) recruitment and hiring; (2) job assignment and promotion; (3) education and training; (4) employee benefits; and (5) mandatory retirement age, retirement, and dismissal.⁸ In regard to the first two categories, employers are required to “endeavor” to give equal opportunity and treatment to men and women, and in the last three categories, employers are pro-hibited from discriminating against women on the basis of sex. The law provided for the Minister of Labor to establish specific standards for categories one and two in the form of Guidelines⁹ and specific standards for categories three and four in the form of Ministerial Ordinances.¹⁰

The law does not provide for enforcement by means of a private right of action. Instead, its provisions are to be carried into effect primarily by three mechanisms: the voluntary resolution of employee complaints utilizing dispute resolution mechanisms established by the employer itself; assistance in the resolution of disputes to be given by the Directors of the Ministry of Labor (MOL) Offices of Women’s and Young Workers’ Affairs, which have been established in each prefecture, when the two parties cannot reach a resolution; and mediation by an Equal Opportunity Mediation Commission, established in each prefecture under the auspices of the Prefectural Office of Women’s and Young Workers’ Affairs, if both parties agree to the mediation.¹¹

In addition, the law establishes three means to facilitate the reemployment of women after childbirth and child rearing: measures to be taken by the national government to facilitate reemployment; a duty by employers to endeavor to create systems for the reemployment of women who have left their employ due to pregnancy, childbirth or child care; and a duty by employers to endeavor to adopt a system to grant child care leave to female employees.¹²

The above provisions were accompanied by several amendments to the Labor Standards Law,¹³ which prescribes minimum working conditions for female workers. These measures have been regarded in the past as “protective measures” for women and have provided employers one excuse for treating women differently from men. The amendments were largely in the direction of loosening the protections given to women, although the provisions to protect pregnant and nursing women were carefully preserved and in some cases extended.¹⁴

2. The “Guidelines” on Recruitment, Hiring, Job Assignment and Promotions.¹⁵ — Articles 7 and 8 of the EEOL state a general requirement that employers must endeavor to provide women opportunities equal to those given men in the areas of recruitment, hiring, job assignment and promotion. To translate this mandate into practice, MOL was directed in article 12 to establish concrete direction in the form of Guidelines in light of the actual situation existing in Japanese society at that point.¹⁶ These requirements were to be gradually revised upward as companies and society became ready for them by incorporating the current Guidelines into their business practices. The concrete directions that MOL issued in its first round of Guidelines are of interest chiefly as indications of the type of discrimination current in Japanese society at the time that they were introduced. They list the prevalent and blatant forms of discrimination that MOL adjudged should be targeted first.¹⁷ Round two will come when MOL believes that sufficient progress has been made in eliminating the types of discrimination treated in the round one Guidelines and that some companies are ready to be led on to progress in additional areas. This mechanism of empowering MOL to establish revisable guidelines in the employment areas of recruitment, hiring, job assignment and promotion is at the very heart of the EEOL’s gradualistic approach.

In the areas of recruitment and hiring, the Guidelines specify that employers must not set up classifications in recruitment and hiring that eliminate women from consideration. They must not use job names connoting maleness or make such statements as “males welcome” or “job best suited to males.” They must not establish permissible age ranges, a certain marital status or residence with parents as a precondition to application if no corresponding requirements are made for men.¹⁸ Examples follow each category in the Guidelines in which employers are instructed not to discriminate, listing typical Japanese em-ployment practices in the area in question.¹⁹

In the area of job assignment, the Guidelines state that employers must not eliminate female workers from consideration for assignment to a given post—for example, sales and marketing positions or management positions—simply because they are women. Additionally, they must not single out female workers for assignment to disadvantageous or undesirable positions—for example, posts involving an inconvenient commute or posts in subsidiary companies—merely for the reason that they have married or passed a certain age.²⁰

In the area of promotion, the Guidelines state that employers must not eliminate women from consideration for advancement to management-level posts or to management posts beyond a certain level simply because they are women.²¹ Likewise, they must not set higher promotion standards for women than for men, such as a greater number of years of service or a better attendance record, or set more difficult requirements for women than for men as a prerequisite to sitting for promotion examinations.²² Finally, the Guidelines list cases that will be exempt from their application.²³

3. The Ministerial Ordinances.²⁴ — The EEOL likewise called for the establishment of Ministerial Ordinances dealing with two segments of the law in which employers were forbidden to discriminate. These areas were article 9—education and training—and article 10—employee benefits. The directive was to adopt Ministerial Ordinances to establish the scope of the measures to be required under the law.²⁵ The Ordinances were also to establish the range of areas to which the “advice, guidance, and recommendations” (the administrative guidance) of the Prefectural Offices of Women’s and Young Workers’ Affairs were to extend (under article 14), and to establish the rules under which the Equal Opportunity Mediation Commissions would operate to carry out the mediation process (under article 15).

Ministerial Ordinances were also to be promulgated in response to the amendments to the Labor Standards Law passed in tandem with the EEOL to establish upper limits on overtime and holiday work by female workers in nonmanufacturing industries; the extent to which women in managerial positions and positions requiring professional knowledge and skills would be exempted from the limits on overtime work, holiday work and late-night work that had been established under the law; the types of work to be exempted from the prohibition on late-night work by female workers; and the categories of dangerous and harmful work that pregnant and nursing women would not be allowed to perform.²⁶

B. Forces Leading to the Passage of the Law

International pressure provided a basic stimulus for the passage of the EEOL, motivating Japan to take a step that it would probably have taken eventually, although not at the particular time that it did. Japan’s response to this international pressure was bolstered further by the fact that it was also feeling the stirrings of internal social change, in the form of the recent rapid influx of mature, frequently married, women into the workplace, highlighting the need to reconsider the traditional division of roles that had characterized the Japanese society of the past.

1. International Pressure. — International pressure—or, more accurately, what Japan perceived to be international pressure—was a direct stimulus to the passage of the EEOL.²⁷ This perceived pressure crys-talized in the form of the United Nations (U.N.) International Women’s Year in 1975²⁸ and the U.N. Decade for Women (1976-1985)²⁹ that followed it. Most legislation in Japan is drafted by the ministry with oversight responsibilities for the area in question. Because labor and employment issues are the responsibility of the Ministry of Labor (MOL), it had responsibility for drafting any legislation to be introduced.³⁰

MOL responded to the International Women’s Year by beginning preparations to draft Japan’s first equal employment opportunity legislation.³¹ Although still at a rudimentary level, some of the groundwork for equal employment opportunity legislation had already been laid by 1975. For example, a provision in Japan’s Labor Standards Law (LSL) already forbade wage discrimination on the basis of sex.³² In addition, numerous judicial decisions had declared the common practi...