Amendments to the Act on Securing etc. of Equal Opportunity and Treatment of Men and Women in Employment took effect from 1st July 2014, widening the categories of unlawful discrimination as well as amending the Ministry of Heath, Labour and Welfare’s guidelines for employers to provide proper redress for sexual harassment complaints. “Ability to Relocate” – Discrimination in the Workplace.

Prior to the amendments it was permissible for an employer to require employees to relocate in order to advance their careers. In practice, this caused particular difficulty for female employees with families, resulting in their exclusion from recruitment and promotion opportunities. In recognising this indirect discrimination, relocation requirements are prohibited under the amendment. Employers in Japan are now precluded from considering only those workers who are available for reassignment that would result in the relocation of the worker’s residence for recruitment or promotion, or to include the ability to relocate as applicable criteria.

For employers in Japan, particularly those with more than 10 employees who have filed their policies and employment handbook with the Labour Standards Office, any provision which calls for a worker to be available for reassignment that would require relocation will need to be amended.

Sexual Harassment

Employers in Japan must also take new measures to prevent sexual harassment in the workplace. This obligation extends to ensuring that roles are not subject to perceptions based on gender (ie stereotyping suitability for a role based on gender) as this in itself may be cause for a sexual harassment complaint. Employers are required to implement measures to eliminate gender biased behaviour as a measure towards effectively preventing sexual harassment in the workplace.

From a practical perspective, employers should ensure their employees are aware conduct in the workplace premised on a perception of divided roles for men and women may be deemed as sexual harassment, and is not acceptable. A common example of this type of conduct which occurs in workplaces in Japan is when female employees are regularly asked to bring the refreshments and sandwiches into meetings, or are expected to prepare and serve tea to visiting clients. Employers in Japan will need to consider conducting training for their workforce to address this issue.

Further, Employers are required to act promptly and take proper measures to protect employees who have been subjected to sexual harassment in the workplace. Examples of an employer having acted properly include taking measures to provide assistance to improve the relationship between the victim and the perpetrator, reassignment for the purposes of separating the victim from the perpetrator, obtaining an apology from the perpetrator, recovery of the disadvantage suffered by the victim in terms of their work conditions and providing counselling for the victim by members of the management team or medical staff that are stationed at the workplace. An employer is also required to take measures against the perpetrator to prevent reoccurrence.

Tips For Employers

Employers should take this opportunity to review their anti discrimination policies, and ensure that any policies or practices do not discriminate, directly or indirectly, against employees on the basis of gender. For many employers, the biggest challenge will be ensuring that the workforce is aware of and understands the importance of gender equality in the workplace, and to work with employees though education and training to remove any gender bias.

For further information, please contact:

Peter Godwin, Partner, Herbert Smith Freehills

[email protected]