Jurisdiction - Japan
Japan – Supreme Court Makes Its First Decision On The Issue Of “Maternity Harassment”.

3 December, 2014


The article below was contributed by Akiko Monden from Nijubashi Partners. On 23 October 2014, the First Petty Bench of the Supreme Court of Japan made its first decision on “maternity harassment” (discrimination against employees based on pregnancy, child birth, child care). The Supreme Court reversed and remanded a decision made by the Hiroshima High Court, which had ruled that there was no maternity harassment, to have the case re-tried by that High Court.

Protection Of Pregnant Employees Under Japanese Law


There are various forms of protection under Japanese law for employees who become pregnant, go through childbirth, and raise children. The rules most relevant to this case are as follows:


  • providing lighter duties during pregnancy when the employee requests (Article 65.3, Labour Standards Act)
  • prohibiting discrimination of female employees who request for/ take lighter duties during pregnancy (Article 9.3, Act on Securing, etc. Equal Opportunity and Treatment between Men and Women in the Workplace (“Equal Opportunity Act”) and Article 2-2(6) of the Implementation Regulation of the Equal Opportunity Act).


Background Of The Case


The Employee is a physical therapist who worked in the Rehabilitation Division of the Employer, a health care provider. The Employee was a “sub-chief”, a managerial position with a monthly additional allowance of JPY 9,500, before she asked for lighter duties.


The Rehabilitation Division had two teams – one worked at a hospital operated by the Employer, and another provided visiting care by travelling to patients’ homes. The Employee was in the visiting care team after her second pregnancy, and requested a transfer to the hospital team (the “Measure”), which was accepted by the Employer effective as of 1 March 2008. The Employer informed the Employee after the transfer (in mid-March) that she would be removed from her position as sub-chief (demoted) due to the transfer, to which the Employee reluctantly consented.


The Employee went on maternity leave from 1 September 2008 followed by child care leave, and upon her return on 12 October 2009, was transferred back to the visiting care team; however the post of sub-chief had already been filled by another employee soon after the Measure, and was not reassigned to her. She claimed that the failure to reassign her as sub-chief constituted unlawful discrimination.


Lower Court Decisions Reversed By The Supreme Court


The District Court and High Court decisions supported the Employer based on the Employee’s consent to the Measure, and the Employer’s discretion in assigning titles.


Criteria For Allowing Demotion As Part Of A Transfer To A Lighter Duty Due To Pregnancy, Set Forth By The Supreme Court


The Supreme Court reversed the lower courts’ decisions and applied a stricter standard by stating that, in order for a demotion to not fall under discrimination when done in response to a request for lighter duty due to pregnancy, one of the following circumstances is necessary:


a. an objectively reasonable circumstance to affirm that the employee consented through her free will, which should take into account factors such as the advantageous effect of the transfer, the content and extent of any disadvantage, the explanation provided by the employer, and the employee’s inclinations; or


b. a special circumstance where the employer has a need to demote an employee who requests lighter duty in order to meet legitimate business needs such as smooth administration and effective posting of personnel, also taking into account the advantages/ disadvantages set out above to determine whether the measure does not negate the purpose of the law to allow lighter duty due to pregnancy.


In this particular case, the Supreme Court explained that exception (a) above did not apply, and there was insufficient findings of fact by the lower court to make a conclusive finding on exception (b), as follows:


Exception A:


  • the advantages of the Measure were not that clear other than the Employee not having to travel to patients’ homes, because the difference in her burden from being in the team at the hospital was not apparent; however, the disadvantage was prominent in that the Employee would lose the managerial position she acquired after 10 years of service. However, there is no record showing that the Employer had explained that once she took the lighter duty, her demotion would remain in effect even if she returned to the visiting care team, so the Employee’s consent to the demotion was not based on an accurate understanding of the consequences, and not a consent fully based on the exercise of her free will.


Exception A:


  • the extent of the advantage for the Employee in the transfer other than not having to travel to patients’ homes (the difference of burden before/ after the Measure) was not made clear, whereas the disadvantage of losing her title as sub-chief and the allowance thereof was clear.
  • the content of the managerial tasks of a sub-chief was not clear, so whether having that title taken away lightened the workload for the Employee and to what extent, or what kind of business need the Employer had to demote the Employee as part of the transfer was also not clear.
  • thus there were no special circumstances that would indicate that the Measure did not negate the purpose of the law to protect pregnant employees who require lighter duty.


While the case is ongoing, the Supreme Court’s decision shows that an employer faced with a need to demote an employee exercising maternity-related rights in order to maintain balance among the workforce, or as part of its personnel allocation, will need to provide clear explanation of the possible disadvantages and compare the pros/ cons/ impact of the measure that both the employee and employer may face in order to come up with what would be an objectively reasonable (and thus lawful) solution.


Clyde & Co


For further information, please contact:


Iris Duchetsmann, Partner, Clyde & Co

[email protected]

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