日本の企業社会における性差別・ハラスメントとバイオポリティックス

近刊図書の宣伝です。

　　以下の英文は、ILO創立１００周年を記念して英国とアメリカでこの夏に同時出版されるR. Bellace/ Beryl ter Haar(ed.), Research Handbook on Labour, Business and Human Rights Law, に私が寄稿する“Business, Labor Law and Human Rights in Japan”の草稿から、特に日本の企業社会における性別役割分業とハラスメントについて論じた箇所の一部を抜き出したものです。職業世界における男女差別の克服が語られるようになって久しく、また近年ではハラスメントの問題が大きな社会的関心を集めています。ここでは、こうした問題の背景に、日本の企業社会に特有の性別役割分業と協調主義的マネジメント、それらによる同調圧力があるとし、これを生政治学的な観点から分析しています。

　　編者のBeryl ter Haarライデン大学准教授は、彼女がアムステルダム大学の講師時代からの友人で、EU労働法や国際労働法の形成を”Open Method of Coordination”という方法論から体系的に分析したことで国際的な評価を受けている気鋭の女性研究者です。だいぶ以前のことになりますが、彼女が主催するゼミの学生と一緒に、日本における“企業社会”のリアルを活写した映画、“トウキョウソナタ”を鑑賞しました。その折に彼女が、この映画の背景について僕に質問したのですが、その時はあまりうまく答えられませんでした。　　

　　今回の論文で、その時の宿題をちょっぴり果たすことができたかもしれないと思っています。次の研究課題は、現段階の資本主義国家体制からの移行、互酬的な交換原理に基づく経済社会における個人の尊厳のあり方を明らかにする中で、ジェンダーとハラスメントの法理を検討すること。そのうちまたBerylたちと一緒に共同研究プロジェクトができれば良いなと思います。

“Research Handbook on Labour,Business and Human Rights Law”には、フランクフルト大学のWeiss教授やイリノイ大学のFinkin教授など、重鎮も名を連ねています。少々値が張るので、“皆様のご家庭に一冊”というわけにはいきませんが、この分野に関心をお持ちの研究者の皆さんには是非とも研究費にてご購入いただければ幸いです。宣伝終了。

＜性差別と生政治システムとしての性別役割分業＞

Although more than 30 years have already passed since the Equal Employment Act of Japan was established in Japan, the gender gap in employment in Japan has not yet been resolved[１]. According to a survey conducted by the Ministry of Health, Labor and Welfare in 2016, women's wages are 73 of men's wages for full-time workers and women's average wage is 244,600 yen. According to the Ministry of Internal Affairs and Communications statistics "Labor Force Survey" in fiscal 2014, the proportion of women in managerial positions is 11, 3%, which is a considerably low percentage among developed countries[２].

One of the grounds of the wage disparity between women and man is that women retire from pregnancy and childbirth, and they are reemployed after child rearing, as part-time or temporary worker or with fixed term.

Background of this phenomenon is a Japanese-style employment system dominated male regular employees. Japanese-style employment systems or Japanese-style employment practices have been characterized as seniority-based wages, lifetime employment, and company-specific labor unions. Japanese companies are male-focused ecosystem with strong, collectivism and conformism.

The Japanese corporate society has been established as a business ecosystem as a hierarchical order between affiliated networks and affiliated companies. Market mechanisms functioning with price signals are rather functioning in a way that is compatible with this cultural ecosystem.

And this ecosystem has guaranteed the high performance of companies located at the final point of the supply chain and international competitiveness. Japanese workers and their families are expected to be integrated in this so-called bio-political functioning enterprisesystem.

In this corporate culture ecosystem oriented towards maintaining and improving the motivation and skills of male regular employees, the system of personnel and wage treatment has also been adjusted to be adaptable to this system.

In this way, the so-called professional qualification system was to be built. In the professional qualification system, the amount of base salary is determined by ranking potential “abilities” of workers separated from the specific contents of their job duties. According to the educational background, the disparity of qualification corresponding to the difference of “ability” at the time of starting is set. For workers with the same educational background at the same time as being hired by the same company are qualified as the exact same potential “ability” holder and payed the same basic salary.

After that, the promotion and raises within this professional qualification are based on the personnel evaluation of the employer. This personnel appraisal is rather based on loyalty to businesses and bosses, rather than assessment of concrete work results.

And gradual seniority-based pay wage treatment is realized in the standard evaluation result by treating with standard promotion / raise payment. What is important in this case is that female workers are not assumed as workers who are promoted or raised according to seniority wage tracks in this professional qualification system. They were forced to retire in the wake of marriage. And even today, they have a reality that is expected implicitly to retire because of pregnancy / childbirth.

As mentioned above, although marriage retirement system and girls' young age retirement system are regarded as violation of public order by case law, and promotion and promotion discrimination based on gender is prohibited in current law, the such kind of practices are still deep-rooted. Many companies maintain such practices as an implicit norm. While these customary norms remain, it is not easy for women workers to acquire careers within the company against this. It is not unusual for them to get overwhelmed by their bosses or colleagues, or to receive hostile treatment.

And this is also the hotbed of various harassments. The gender role division of labor system represented by the phrase "the husband works and the wife protects the family" has been the deep-rooted social norm in Japan which has been functioned positively for realizing high performance of Japanese companies in the 1970s and 1980s, while developed countries were suffering from low growth and economic stagnation. However, the stronger the light of Japanese-type employment, the stronger it is to say that it formed a deep shadow. The movie "Tokyo Sonata" which gained a high reputation overseas also reflects the tragic drama that such corporate community norms are widely accepted as norms of Japanese society including family relations.

In the 1990s, the provision of women protection not related to maternity protection closely related to sexual division of labor was in tendency to be abolished. However, the decisive difference between Europe and Japan is that there is absolute working time limit ceiling in Europe, while Japan can extend labor overtime almost unlimitedly, even if labor-management agreements are signed. In Europe, the 1993 Working Hours Directive should ensure a rest time of at least 11 hours, while there is no such regulation in Japan.

Thus, in Japan, the long-term labor of male regular employees was not improved, the late-night work regulation of women was abolished, so a situation arises that women can be forced to do the same late-night work and long hours work as men, female workers who are under superior family responsibility have made it difficult for employment to continue[３].

＜企業内ハラスメントとその背景＞

In recent years, harassment at workplace has become a serious problem in Japanese business society. Disputes concerning harassment are the largest number of incidents, beyond the number of dismissal disputes. According to a survey by the Ministry of Health, Labor and Welfare, the number of consultations on harassment received by the prefectural Labor Bureau and Labor Standards Inspection Office has reached 70,917 in 2016 from 22,153 in 2006. It has increased more than about 3 times.

However, from such data, it should not be considered that the phenomenon called harassment has occurred suddenly in recent years. Traditional labor dispute cases, replacement, retirement recommendation, disciplinary action, dismissal dispute, and many other cases have aspects of harassment to workers by employers.

Nonetheless, the significance of harassment being distinguished from traditional labor dispute types and the existence of unique conflict typologies and doctrines should not be discounted. Harassment in the workplace itself is a problem requiring a certain legal response and it is becoming recognized as a serious social problem leading to labor accidents such as death from overwork and mental illness.

The author sees that the social problem of harassment in recent years emerges that the cooperative-synchronistic management in Japanese companies, which did function well until 1980s, acts inverse function last quarter century.

Since the 1970s, western countries have entered a state of economic slowdown and long-term stagnation triggered by oil shocks, while Japan alone maintained astonishing competitiveness and growth potential. Therefore, the Western social scientists have actively discussed what the grounds of this "success" in Japan were. In summary terms, Japanese companies have succeeded in drastically reducing transaction costs through collaboration, different communication styles from the West and the United States, and organized Pareto efficient business ecosystems, which are based on the long-term reciprocal relationship between stake holders, above all with workers[４]. Within this ecosystem, maintenance of a dense communication space inside each company is the most important task of human resource management. In this context, the pressure to workers to be cooperative with employers overrides the legal correctness.

The social norm of this Japanese corporate society has been reflected in the law of rules of employment (workers regulations of the enterprise), which has justified collective and uniform working conditions regulations.

However, as the need to alter the corporate organization in a way that is adapted to changes in the ITC revolution and globalization, the fundamental change in Japanese economic and social structure, changes in population composition characterized by the declining birthrate and aging population, the Human resource management with the premise of homogeneity of labor organization is becoming difficult to maintain.

Under such circumstances, if it is tried to maintain the order of the company according to the management and communication norm presupposing the homogeneity of the group, a great friction will naturally occur.

The above-mentioned synchronistic pressure within Japanese enterprises and among workers is mow modulating with the changing social environment.

When attempting to solve the problems arising there in a form that further strengthens the synchronization pressure to employees and their families, various kinds of halation occur, and this will occur as infringement of privacy and other rights.

As stated above, in Japan, wage treatment based on concrete and objective duties and their work and outcomes is not common and importance of loyalty to companies is emphasized in promotion. And the existence or nonexistence of that loyalty is often judged by whether the direct superior will like it or not.

Thus, the relationship between a worker and his / her boss and the company behind it tends to take on personal characteristics that go beyond his business relationship and extend to personal lives. The Japanese corporate order has been maintained under the management of personal relationships including the private life of such workers.

[１]See Hiroya Nakakubo, Glass Ceiling or Iron Weight ?: Challenges for Female Employees on Their Path to Becoming Managers and Executives in Japan, 39 Hastings Int’l & Comp.L.Rev.339 (2016).

[２]Kazuo Yamaguchi finds fundamental problem in “pre-modern” human-resource management in Japanese companies. See, Yamaguchi, Determinants of the Gender Gap in the Proportion of Managers among White-Collar Regular Workers in Japan, Japan Labor Review, vol.13,no.3, at 7 (2016).

[３]　See Nakakubo, supra note 4, at 406.

[４]See Takashi Yonezu, Law of Dismissal in Japan: “Reciprocity” or “Verhaeltnismaessigkeit”as Background?, Journal of Japanese Law [Zeitschrift fuer Japanisches Recht], Vol.21(2016), No.42, at 270.