The legislation enacted in May to step up the fight against workplace harassment makes it an obligation on the part of employers — big companies beginning next June and smaller firms in 2022 — to take measures to prevent harassment against their employees. However, critics charge that a draft guideline compiled by the Health, Labor and Welfare Ministry defining power harassment and specifying examples that constitute such harassment and those that do not — which has been requested by the big business community — could be used to justify acts by offenders taking advantage of their position of power to harass victims.

The draft, submitted to a subcommittee of an advisory panel to the labor minister, has divided representatives from employers and labor unions, and discussions to finalize the guideline may face a rough road. The draft must be given a second look from the viewpoint of protecting workers — who are often in a weak position vis-a-vis their employers — from harassment by superiors.

The legislation was enacted on the back of an increase in complaints over workplace harassment and bullying — reaching a record 82,000 cases nationwide in fiscal 2018, up by roughly 10,000 from 2017 — reported to labor bureaus across the country. It prohibits power harassment — defined as words and acts by offenders, taking advantage of their position of authority over victims, that harm the workplace environment beyond what is necessary and appropriate for work operation.

The law makes it mandatory for employers to take measures to prevent power harassment against their workers, such as developing systems for their consultation. However, it fails to provide for punishment for people who engage in acts of power harassment.

The International Labor Organization’s Convention on Violence and Harassment, adopted in June, calls on governments that ratify the global treaty to take steps to prevent and protect people from violence and harassment, and provide enforcement mechanisms and remedies for victims, including legal prohibition of violence and harassment at work and ensuring effective inspections and investigations. Japan voted for the treaty but remains cautious about ratifying it.

The damage from power harassment is serious. Many victims have been forced to take extended leave from work, quit or even take their own lives in the worst cases. Harassment takes various forms — including abusive language or even sheer violence. Some employees are reportedly targeted for unfair treatment — for reasons ranging from manpower cuts and retribution for whistleblowing to union activities — and forced to engage in work that does not suit their experience and skills.

In domestic discussions over the power harassment legislation, penalties for offenders were passed over due to objections from the business sector, which argued that it’s difficult to draw a clear line between power harassment and necessary guidance. Keidanren (the Japan Business Federation), the nation’s biggest business lobby, called on the labor ministry to specify examples of what acts do not constitute power harassment.

In the draft guideline, the labor ministry spells out six categories of power harassment — including physical attacks, psychological attacks such as the use of abusive words and threats, ostracizing victims by ignoring them or segregating them, or giving workers tasks that require much lower skills than they have. In each category, the draft presents concrete examples of acts that constitute power harassment and those that do not.

For example, the use of abusive language that amounts to denigrating the victim, or harshly and repeatedly chastising a worker over a long period of time, amounts to psychological attacks. On the other hand, strongly cautioning workers who fail to amend behavior that runs counter to social rules and manners despite repeated warnings, as well as employees whose behavior is gravely problematic in light of their work, is cited as examples that do not constitute power harassment. Giving workers in management positions simple tasks that can be carried out by anybody else to force them to quit amounts to power harassment, while temporarily assigning them easy work that does not match their skills for management reasons does not.

Labor officials charge that use of the vaguely defined “social rules” or “problematic behavior” in the guideline may give the wrong impression that it’s OK for managers to severely scold workers who have problems. Critics also note that condoning “temporary” acts for “management reasons” could give management excuses to justify their harassment of workers. The parties involved should think again about whether specifying examples that do not constitute acts of harassment will result in narrowly defining power harassment, and whether that will serve the intended purpose of the legislation.

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