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‘Maternity harassment’ verdict benefits women, men — and our humanity

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Last Thursday’s Supreme Court verdict in the “maternity harassment” case brought by a physical therapist in Hiroshima was the first of its kind, overturning decades of business-friendly jurisprudence along with rulings from the district and high courts.

As I mentioned in last year’s September Labor Pains (“Mata-hara: turning the clock back on women’s rights”), the word mata-hara is short for maternity harassment, just as seku-hara and pawa-hara refer to sexual harassment and power harassment, respectively. Maternity harassment means workplace discrimination against pregnant or childbearing women, including dismissal, contract nonrenewal and wage cuts.

When the plaintiff brought the suit against a Hiroshima hospital, she had already worked as a rehabilitation therapist for 16 years. Six years prior, she had gained the title fuku-shunin (deputy senior staff) in the hospital’s rehabilitation department. In 2008, she had her second child and, while pregnant, requested less demanding work, as was her right under Article 65.3 of the Labor Standards Act. The hospital switched her from home-visit to in-hospital rehabilitation, assuming it was lighter work.

The problem is that the employer also removed her fuku-shunin title. She had the baby and took child care leave. When she returned to work, the hospital put her back on the home-visit rehabilitation team but did not restore her title. She found herself working under someone many years her junior. She also lost the “middle-manager allowance” that had gone with the title.

She sued the employer, technically a health co-op named Hiroshima Central Health Cooperative, for damages based on violation of Article 9.3 of the Equal Employment Opportunity Act and Article 10 of the unwieldy Act on the Welfare of Workers Who Take Care of Children or Other Family Members Including Child Care and Family Care Leave. She also claimed gender discrimination.

Hiroshima District Court, on Feb. 23, 2012, and Hiroshima High Court, on July 19 the same year, both rejected her claims outright, the lower court ruling that “the measure was taken within the legitimate realm of discretion by the employer/defendant based on personnel placement needs, administration and work duties after a request by the plaintiff for a switch to less demanding work due to her pregnancy, while the plaintiff never objected to the shift to a lighter workload.”

Last Thursday, however, the Supreme Court basically said, “No, no, no, we’re not going to do it that way.” The highest court overturned both lower court verdicts and sent the case back down to the high court — in effect, ordering it to change the verdict.

“Demotion and other unfavorable measures violate the Equal Employment Opportunity Act unless the pregnant woman consents to it freely and of her own accord, or if special circumstances exist in terms of smooth administration or personnel placement that make it unavoidable,” said the Supreme Court, ordering the high court to consider whether such special circumstances existed.

The landmark quality of this case cannot be overstated. If women can be demoted for getting pregnant, then women who care about their careers will hesitate to have children at all.

What shocked me, however, was that women around the country, far from applauding the verdict, are frothing at the mouth to attack the victim. At least that is what I have seen and heard in Internet chat rooms and on TV. Some samples:

“She asked for the lighter workload so she cannot object to a demotion.”

“Why the hell should she hold the same position and work conditions even though she is doing easier work?”

“I feel sorry for her co-workers who had to take up the slack while she was on maternity leave.”

It seems that such critics believe that slave-driven salarymen toiling until late at night and on weekends with no thought for their personal lives represent the ideal of what work should look like. There seems to be a sense that overwork is somehow unavoidable, so if women want to work, they must accept the same brutal conditions. Thus, having a child is a private matter that causes inconvenience to the company.

This is in line with what is called the Showa no ossan (Showa Era old man) model of the perfect worker. It fits in with the man-work-woman-stay-at-home ideal of yore. Japan’s current tectonic demographic shift can ill afford such an anachronistic gender-based division of labor.

The business world is panicking as the population of children shrinks and the ranks of elderly swell. The Japan Association of Corporate Executives has called on capable women, young people, old people — even foreigners — to “join the labor force so that Japan’s economy and society can be maintained and developed.”

It’s crucial to understand that mata-hara is not only a women’s issue. It is one that involves all workers — and everyone else.

It is not that women should work as hard as men; nor should they have to quit if they want children. Rather, we need to challenge the slave-driven salaryman model. We need to overturn the self-sacrificing worker-drone mentality and create a more humane and human workplace for men and women alike.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki@gmail.com. On the fourth Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law. Your comments and ideas: community@japantimes.co.jp

  • Jesse James

    Sorry, but I have seen how you treat your “Grass eaters,” and they have made a rational decision. A friend of mine failed to save an elderly Japanese man in the Kanagawa prefecture who lay dying of a heart attack as Japanese men and women just walked around him.

    The culture there can be very, very warm. But also arctic cold. Plus, when women divorce, they can refuse a man there from even seeing his kids!

    If you think that the reason men are not giving babies to women there is because they want to slave away for her career and benefits for the elderly, man have you guys got a surprise coming. I am not saying that with glee.

    • blondein_tokyo

      You managed to turn an article about giving women more opportunities to contribute to the household income as well as the country’s economy into a sexist screed scolding women for unspecified actions that cause men not to want to give them babies. All I can say is…..whut?

      • KT

        I think he’s gesturing towards the ideas of how this country has given women power in certain areas, as well as how Japan has a lot more inertia when it comes to providing a safe and good environment for the “beta males”, but I fail to see how it has much of a relation (or coherence, for that matter) with regards to this article.

      • blondein_tokyo

        Actually, I knew what he meant. I was just wanting to point out that his comment is inane, and has nothing to do with this article. He was just looking for some way to show off his MRA credentials.

      • rossdorn

        The question decided by the court was a different one…

        “What is better for Japan, for its economy, or rather, for the bosses of the japanese economy?”
        Their conclusion makes sense: Women have to be paid less than men for the same job, and Japan urgently needs babies. And unlike Europe employers are free top choose who they employ…
        In some european states it is already against the law to advertise a job as gender specific….

      • blondein_tokyo

        Um…the court ruled in HER favor. This means the court is saying that women have every right to expect to have their work valued exactly the same as before they had a baby.

        You’re kinda sexist, eh?

        Get thee back to the 19th century, where thee belongs, demon! ;)

  • Japanese Bull Fighter

    Lots of overblown rhetoric here. Yes, the quasi-military employment pattern should be changed, but it is not Japan-specific although it may be relatively more common in Japan. Similar work patterns are found in the software financial services industry outside of Japan. Blogs and chat rooms are not a good source for measuring opinion if for no other reason that you cannot verify identity. Someone who posts as a woman could just be a guy trolling. Having said that, it is a well known phenomenon that women are often the most severe critics of other women at the work place. “If I could do it, why can’t you?” Further, I would note that while the Japanese media has given a pithy name to “maternity harassment,” a check of US and UK court cases will show that this is a chronic and continuing problem in both the US and the UK.

  • Jay

    This a good news story, but the fact that the plaintiff had to take it all the way to the Supreme Court says a lot about attitudes towards women–in this case pregnant women–in this country. It is no surprise that Japan ranks a lowly 104th out of 142 countries on gender equality, as recently announced by the WEF and reported by the Japan Times.

  • tiger

    for profit companies are not wrong to demand labor for their wages. understandably, pregnancy hurts their interests and they don’t feel they should be responsible for its costs. and it just happens that only women get pregnant. sexism is not as unfounded and irrational as say racism. but the question remains that how a society can address this problem in a reasonable manner – a woman should not be the only party that should sacrifice for what nature dictates her to do.

  • Igor Inocima

    Single women showing no compassion towards pregnant or women with small children, specially in competitive workplaces, is quite common and not exclusive to Japan.