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NS Solutions case is latest battle in long war against sexual harassment

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Special To The Japan Times

The first time a court in Japan ruled on the issue of sexual harassment was on Aug. 5, 1989. On that day, in what has become known as the Fukuoka Sexual Harassment Case, the Fukuoka District Court found the individual harasser and the employer responsible for damages.

The Equal Employment Opportunity Act (EEOA) had been enacted three years earlier, but awareness of issues affecting women in the workplace was still low in Japan; they were considered “workplace flowers,” “seat warmers until marriage,” “male workers’ assistants” or even “unsold Christmas cakes.” The last epithet referred to those whose values as women were said to be plunging because they had not married by age 25 (with Christmas Day being Dec. 25 and all).

The point was that women had no perceived value at the workplace unless they were young and pretty. Many (mostly men) felt women should feel honored and pleased to be sexually harassed, because it was proof they were still seen as attractive. What’s more, this was hardly the minority view. So as we delve into this case, keep in mind the way society was back then (not that things have necessarily improved all that much today).

The plaintiff in the Fukuoka Sexual Harassment Case was lambasted for suing over such a trivial matter as sexual harassment. Her main fight ended up being against the cold glare of public disapproval rather than the perpetrator.

For a long time she hid her actual identity behind the moniker “Plaintiff A.” Mayumi Haruno didn’t go public with her real name until a decade after her win in court. This pioneer blazed a trail and established a standard not only in her company but in wider Japanese society. Her brave fight — and it is hard to imagine what she must have gone through back in those days — has had a positive impact on female workers that continues to be felt today.

In 2007 the EEOA was amended, with the new Article 11 obliging employers to take necessary steps to protect workers from sexual harassment. The law was also changed so that male workers would be protected from sexual harassment by females, males from males and females from females. This year, guidelines have come out regarding the proper measures “employers should take in terms of their management responsibility regarding issues created by sexual words or behavior at the workplace.” These guidelines incorporated LGBT workers and other minorities.

A test case for today

On May 25 of this year, systems integrator NS Solutions Corp., a subsidiary of Japan’s largest steel company, Nippon Steel, was sued for damages in Tokyo District Court by a female former employee whose annual job contract was not renewed after she complained to the firm about sexual and power harassment.

Labor Pains spoke with the plaintiff — let’s call her A — who alleges she was sexually harassed by manager B as follows:

She says it all started in late 2013 at the workplace’s year-end party, which nearly every staff member attended. The plaintiff alleges that manager B said to her, “Let’s go to a hotel,” a proposition she politely rejected, saying, “You are married. Adultery is wrong.” But, she says, he persisted, even suddenly grabbing her arm as he sought to convince her.

He then began sending Facebook messages — seen by Labor Pains and reprinted in reports in the Japanese media — of a sexual nature, such as the following:

At the risk of sounding like a train groper, let me ask you if my touch was not unpleasant.

Next time, let’s have an erotic contest.

I may make comments that constitute sexual harassment, but …. that’s because I’m a great devil king.

Plaintiff A says she was disgusted by these comments, but feared that any sharp rebuke to manager B might have negative repercussions on her job and career. Instead she took a softer approach, replying:

Please accept my rejection.

Please don’t ask me for that.

Give me a break.

Despite these messages from the plaintiff, in initial arguments to the court the defendant’s lawyers revealed that they intend to show that the plaintiff did not clearly reject B’s advances. Evidence the plaintiff has submitted in the case suggests B continued his pursuit, regardless of her refusals.

One night, the plaintiff says B called her at 3 a.m., even though she had never given him her number, and talked with her about very personal matters. The phone call lasted hours, she says, adversely affecting her work the next morning. She finally mustered the courage to demand that he cease contacting her and defriended him on Facebook. Manager B then resorted to other means to convey his desire — Line and the company’s intranet — as in the following messages:

This ol’ man wants to ask you out! I’m already married, though. LOL.

Shall we go out for tea and get all our gloomy thoughts off our chests?

The plaintiff says she ignored all these messages, but they took their toll on her physical and mental health. When she got to the point where she couldn’t take the stress anymore, she spoke in May 2014 with her more direct boss, manager C, and asked the company to take some measures to stop B’s behavior.

The company held a hearing with B, who denied everything, and the firm concluded that both sides were at fault. Plaintiff A couldn’t accept this conclusion, but she wanted to avoid any further fuss that could adversely affect her work. She agreed to end the case on condition that B stopped sexually harassing her.

Four months later, A learned that C had decided she be put on a team led by B. Up until this time, A and B hadn’t worked directly with each other, but the company apparently saw fit to stick them together.

The company claimed that A would play an assistant role rather than a being a direct subordinate, so she would have no direct contact with B. Instead, they said, they felt that treating her as a special case and keeping her away from B would instead have been against her wishes. In their initial arguments in court, the company’s lawyers said the firm had put A on the team precisely to avoid any accusations that she was being discriminated against based on her harassment claims.

The plaintiff rejects this argument as counterfactual. First, she says she would indeed have had a great deal of contact in a group led by B, whether she liked it or not. Also, there was already an assistant in that group before A’s arrival, so there was absolutely no need for such a transfer.

This transfer has me scratching my head too. Four months prior she had gone to her direct boss, C, to discuss the problem with B, conveying to C the great distress she had felt. Despite this, C ordered this transfer. I wanted to ask the company about this, because their intentions seem mysterious.

I sought an interview with NS Solutions. The PR/Investor Relations Department declined the offer, writing: “We will hold off on commenting since the case is currently in dispute. Many parts of the plaintiff’s assertions differ from the facts as our company sees them. We will clarify our assertions in court, and deal with this case in good faith.”

It was after the transfer that A began feeling physically sick on top of her anxiety. She started having breathing problems — asthma day and night. Medicine only made her sicker. She went to see a top specialist who told her she needed time off. NS Solutions responded by declining to renew her contract in May 2015, saying she “can no longer be expected to provide the labor required under the contract.”

She decided to fight the company in court, claiming the nonrenewal of her work contract was invalid and demanding ¥11 million in damages. The company has told the court it plans to argue that the matter is a personal one between two consenting adults, and it had no bearing on the decision not to renew the plaintiff’s contract.

Back to the future

Mind you, this is a case occurring in Japan in 2017. Plaintiff A, just as with the plaintiff in the Fukuoka case 28 years ago, fears giving her real name, fears retaliation from her bosses, fears a social backlash and prejudice, and fears going up against a large company — namely, the parent firm of the defendant.

“I worked so hard at the company,” she explains. “I never did anything wrong, but the company discarded me in such a cavalier manner. Yet the boss who sexual harassed me kept his job and even his position. And the company ignored my legitimate complaint that he had repeatedly sexually harassed me. In fact, they stuck me in a group led by him, making my working environment even worse.

“I cannot accept or even understand this,” she says. “Of course I am angry at the man who sexually harassed me, but I have a great deal more anger about how the company dealt with the issue.”

Sexual attacks or threatening behavior at the workplace, which is a public space, cannot be filed away as “private issues.” Let’s keep a close eye on how the court rules in the NS Solutions case. It should say a lot about where Japan stands now, nearly three decades after the Fukuoka ruling, on the issue of sexual harassment.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union. She can be reached at tozen.okunuki@gmail.com. Labor Pains usually appears in print on the last Monday of the month.
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