Die sexuelle Belästigung am Arbeitsplatz im japanischen Arbeitsrecht

Abstract

The paper discusses, with reference to current statistics, the increase in recorded cases of sexual harassment at the workplace and its typical manifestations in Japan. It also analyses the reactions of employees and firms to sexual harassment and the reasons for its increase. The article proceeds to look at the legal provisions on sexual harassment. The most important provision is Article 11(1) of the Equal Opportunities Act, which obliges an employer to take those management measures necessary to ensure that workers are not disadvantaged because of their response to sexual harassment and that they are not disturbed in their working environment. If an employer fails to comply with the obligations existing under the Equal Opportunities Act, dispute resolution will initially be pursued at the administrative level (e.g. through informal administrative guidance and mediation), but the employer may also be subject to liability for a tortious act (Art. 709 CC) or for breach of contract (Art. 415 CC). Since the sexual harassment of an employee has a negative impact on workplace harmony, the employer can discipline the offending employee in accordance with the provisions of labour law, namely Art. 15 of the Labour Contracts Act, or, depending on the circumstances, even terminate the employee. In addition to indirect employer liability, which presupposes that an employee has injured a third party (Art. 715 para. 1 CC), the courts increasingly recognise employer liability for the employer’s own tortious conduct (Art. 709 CC). In the author’s view, the Equal Opportunities Act should be amended to clearly prohibit sexual harassment in the workplace. Accordingly, the conditions of liability for a tort or for a breach of contract in connection with sexual harassment should be more clearly specified. Furthermore, the employer’s duty to ensure a respectful workplace environment should be newly regulated in the Labour Contracts Act as a secondary duty of the employment contract. In the same way as Art. 5 Labour Contracts Act specifies the employer’s duty to protect the life and physical integrity of an employee. Overall, the legislature, the judiciary and the administrative authorities should play a greater and more decisive role as regards the education and training that is necessary to prevent sexual harassment in the workplace.

(The editors)