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The Working Women’s Network (WWN), Japan was established in 1995 to support the wage discrimination cases against the Sumitomo Corporate group. One of the organisation’s strategies was to appeal to international organisations and UN bodies such as CEDAW and the ILO. They also worked with the local media to publicise their concerns. In 2003, WWN brought this issue to the attention of the CEDAW Committee at its review of the Japan government. The organisation then successfully referred to the Committee’s Concluding Comment on this matter in the Sumitomo case as illustrated below.
Statement by the Appellants’ Lawyers
The Sumitomo Electric Wage Discrimination Case reached a settlement agreement with the company and the Government on December 24, 2003 at the 14th Civil Section of the Osaka Appeals Court (Toshio Igaki CJ), thereby concluding the efforts of over 8 years and achieving important results.
The case which started with the submission of the suit on August 8, 1995, was decided at the 5th Civil Section Osaka District Court (Tetsuhiro Matsumoto CJ) on July, 2000. The Court held unjustly that the employment management based on sex violated the objectives of Article 14 of the Constitution, but was not against public order and good morals of the period of 1965-75. Over 300 citizens circled the District Court forming a “human chain” to object to the decision, and the mass media reported it as “cold-hearted decision against working women.” Over 100 women wrote letters of appeal in anger arising from their own experiences. The Appeals Court trial began with the background of public opinion critical of the District Court decision, and continued for the next 3 years.
Following the submission of the expert opinion by Professor Marsha A. Freeman (Chairman, International Women’s Rights Action Watch) in the District Court trials, the plaintiffs submitted expert opinions and papers by Professor Koki Abe regarding matters on international law, Professors Satoshi Nishitani, Shozo Yamada, Hiroko Hayashi and Samiko Ueno on labour law, Professor Yoichi Higuchi on the Constitution, Professor Emily A. Spiler on anti-discrimination law, and Professor Chizuko Ueno on feminism, to argue the errors of the District Court decision from all aspects.
The plaintiffs and the Working Women’s Network which supported them continued to appeal to the public opinion both in Japan and abroad on the entrenched sex discrimination and its injustice in Japanese companies ever since the submission of the suit. As a result, the Concluding Comments of the UN Committee on the Elimination of All Forms of Discrimination against Women issued in July 2003 states that the Guidelines under the Equal Employment Opportunity Law indicates a lack of understanding regarding the practice of indirect discrimination caused by career track-based employment management and recommended that the Government review the Guidelines.
Based on these processes of the case and the international developments, the 14th Civil Section of the Osaka Appeals Court (Toshio Igaki CJ) recommended a settlement as shown in the attached documents on December 1, 2003. The recommendation at the onset touches on the continued efforts towards achieving equality of the sexes in the international community by indicating that, “(a) society, … in which men and women can work together in social development is, in the current common international understanding, a truly equal society” and states that the Court took these international efforts into consideration in the reasoning of the recommendation.
It views the provision of equality under the law in the Constitution, as well as the ratification of the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the legislation of the Basic Law on Gender Equal Society positively as steady progress on the one hand, while noting that the entrenched stereotypical attitudes regarding gender roles remained as major obstacles in achieving equality between the sexes.
The following terms of the settlement present a clear contrast with the arguments in the District Court decision. The decision held that the CEDAW and the Equal Employment Opportunity Law were not retroactively applicable, and effectively argued that the plaintiffs who were hired in the period of 1965-75, were outside the scope of their application. The settlement recommendation, however, states that the reforms such as the ratification of CEDAW and the legislative amendment were achievements in the movement towards elimination of discrimination between men and women, and clearly indicates that all women have the right to enjoy its achievements.
Regarding the argument by the plaintiffs that the District Court decision tolerates the results of the continued effects of gender based employment management, the recommendation notes that, “to tolerate the vestiges of discrimination based on past social understandings would result in turning one’s back to the progress in the society,” and states that “at present, sufficient consideration must be given to not only direct but also indirect discrimination.” The Osaka Appeals Court issued its settlement recommendation based on an accurate assessment of the international developments and the current situation in the country. (See Annex 1) In the terms in relation to the company, it recommends continuing necessary efforts through labour-management discussions on the necessity and reasonability of career track-based employment management, so that such management does not become in effect gender-based employment management (1(1)), promotion of the plaintiffs (1(2), (3)), and payment of settlement money (1(4)). The company agreed to the terms almost completely as it was presented with strong urging by the Court.
The terms regarding promotion of the plaintiffs in particular, was realised by the recognition by the Court that the improvement of status in the workplace is the key to elimination of discrimination, which should be highly commended. In relation to the Government, it was recommended that even when the employment management categories are different, sufficient attention should be paid so that the system does not effect result in discrimination based on gender, and that the mediation should be actively and appropriately applied. The Government agreed to the terms almost without any amendment and the settlement was achieved.
The Government became defendant in this case, due to the refusal to initiate mediation procedures, when the plaintiffs applied to the Head of the Osaka women’s and Young workers’ Office for mediation based on article 15 of the former Equal Employment Opportunity Law in March 1994, before submitting their case to Court. The reason for their refusal was that the plaintiffs and the male employees on whom they based their comparisons were placed in different employment management categories. The present settlement recognizes that even when the employment management categories are different, it can in effect be employment management based on gender, and commits the Ministry of Health, Labour and Welfare to active implementation of policies and appropriate operation of mediation to combat such occurrence.
The current settlement recommendation, therefore, is equivalent to overturning the unjust decision at the District Court, and it not only achieves elimination of discrimination against the plaintiffs, but also has a major impact on other cases involving wage discrimination against women.
It also will have a considerable effect on future labour administration, as the Ministry of Health, Labour and Welfare agreed to active use of mediation as well as implementation of policies.
Finally, we thank the many people who have supported us in this case, and sincerely hope that this settlement would encourage all those people who are striving towards elimination of sex discrimination in this country, and contribute to progress in their efforts.
Annex 1: Recommendations for an Amicable Settlement
Efforts towards achieving equality between the sexes have been making steady progress in the international community, mainly through the United Nations initiatives. A society, in which women are not discriminated against on grounds of their sex, in which they can develop their abilities and capacities for their own fulfilment as well as that of the whole society, and in which men and women can work together in social developments is, in the current common international understanding, a truly equal society.
The Constitution of Japan proclaims the dignity of the individual and the equality under the law. Our country has, in keeping with the international trends, took steady steps towards establishing the spirit of equality in the society, such as by the ratification of the International Convention on the Elimination of All Forms of Discrimination against Women (1985) and the legislation of the Basic Law for Gender Equal Society (1999). On the other hand, the stereotypical view of gender roles still firmly entrenched in parts of society remains a major obstacle in achieving equality between the sexes.
In the area of employment, the Law on Equal Opportunity and Treatment Between Men and Women in Employment (the former Equal Employment Opportunity Law) legislated in 1980 was amended in 1996 (entry into force in April 1999; the amended Equal Employment Opportunity Law). The latter required employers to provide equal opportunity to women as well as men in matters of recruitment and hiring, and prohibited discriminatory treatment in assignment, promotion, etc.
These reforms were achieved step by step in the movement towards elimination of sex discrimination, and all women have a right to enjoy the outcome. It must be borne in mind, that to tolerate the vestiges of discrimination based on past social understandings would result in turning one’s back to the progress in the society. Moreover, at present, sufficient consideration must be given to not only direct but also indirect discrimination. This Court, based on the results of the hearings, and bearing in mind the international efforts mentioned above, in which the Basic Law for Gender Equal Society was adopted and measures towards its realization are taken in all corners of the society, and in expectation that this conflict would be solved swiftly and positively, recommend that both parties agree to a settlement, according to the attached terms.
December 1, 2003
14th Civil Section, Osaka Appeals Court
Toshio Igaki CJ
Terms of Settlement
- Appellee Sumitomo Electric Industrial Co., Ltd. (hereafter, Appellee Company) has been revising various aspects of its job categories/responsibilities system. The Appellee Company will continue making necessary efforts, according to the objectives of the amended Equal Employment Opportunity Law, which requires that women workers be treated on an equal basis with men according to their willingness, capabilities, aptitude, achievements, etc, and taking note of the “Notice regarding employment management based on career tracks, etc.,” issued by the Equal Employment, Children and Families Bureau of the Ministry of Health, Labour and Welfare indicating the vital importance of sufficient examination of the necessity of employment management based on career tracks and the reasonability of difference in treatment, in view of the danger of such employment management effectively resulting in discrimination based on sex, as well as pursuant to labour-management consultations.
- The Appellee Company will promote Appellant Katsumi Nishimura to the manager as of January 16, 2004.
- The Appellee Company will promote Appellant Eiko Shirafuji to the assistance manager as of January 16, 2004.
- The Appellee Company will recognize that it is responsible for paying each of the Appellants a sum of 5,000,000 yen as settlement amount.
- The Appellants will relinquish all other claims against the Appellee Company.
- The Appellants and Appellee Company will recognize that except for the settlement terms raised herein, all parties have no further rights or liabilities arising from this case.
- The Minister of Health, Labour and Welfare is working towards taking steps to ensure implementation of the amended Equal Employment Opportunity Law with active administrative guidance regarding its “promotion of measures to ensure equal opportunity and treatment between men and women in the area of employment” in its Basic Plan for Gender Equal Society, pursuant to the prohibition of discrimination against women in all stages of employment management including recruitment, hiring, assignment and promotion as of April 1999 according to the amendment of the Equal Employment Opportunity Law. As active efforts by companies towards elimination of the de facto discrepancy between female and male workers are indispensable to realize, not just institutional equality, but also effective equality between men and women and to maximize the use of women’s capabilities, the Minister will also present active development of promotional policies towards companies as its basic direction in its policies. On employment management based on career tracks, etc., the Minister is aiming for precise guidance, etc., towards appropriate application of the above Notice, as well as publicizes and raises awareness of its contents.
- The Appellants will relinquish all claims against the Appellee Government.
- The Appellants and Appellee Government will recognize that except for the settlement terms raised herein, all parties have no further rights or liabilities arising from this case.
Each party will bear their own trial and settlement expenses of both First and Second Instances.
Source: Shizuko Koedo, Women Working Network, Japan