He used to be a section chief, one of managerial positions, at the Tokyo branch of the Bank of America (“BoA”). He had been working there for more than 30 years. However, due to a drop in revenue at the branch, BoA formulated a new management policy to restructure the organization and cut down on human resources. He disagreed with this new policy and raised an objection. Finally, he was relocated to the reception desk and worked as a receptionist, categorizing letters and answering phones. Also, he was assigned to deal with office supplies, including the distribution of stationary to other employees.
He claimed that BoA humiliated him by assigning too simple tasks and pressured him to leave the company, and the Tokyo District Court ruled in his favor (Tokyo Chiho Saibansho [Tokyo Dis. Ct.], Dec. 4, 1995, Sho63(wa)No.12116). The court held that the reception work had been conducted by non-regular employees who were in their early 20s and less experienced, and was comprised of very simple tasks that were not suitable for a banker who had held a managerial position and worked for the company for 33 years. Similarly, the management of office equipment and expenditure payment was too simple and easy for the work experience and skills that he had. Therefore, the court concluded, BoA had deliberately assigned him unsuitable tasks and had intentionally made him feel isolated and humiliated, and then unable to stay. This new assignment was made by BoA with the intention to force him to voluntarily resign. Hence, BoA’s action infringed the personal right of the banker and thus constituted a tort (defamation).
This BoA case is one of the leading cases that indicate the emergence of a “right to career” in Japan. Although there is no precedent case that directly describes the right to career, generally, it is considered as a right to actively design and pursue a career as you wish in accordance with your ability, skills, and willingness.
Academics argue that this right is based on several constitutional rights in Japan such as (a) a right to pursue happiness (Article 13), (b) right to receive education (Article 26.1), and (c) a labor right (Article 27.1) and freedom to choose occupations (Article 22.1). Also, the amendment of the Human Resources Development Promotion Act in 2015 (became effective in 2016) (the “Amendment”) sets up (a) an obligation for employees to make efforts to develop a career (Article 3-3) and (b) an obligation for employers to make efforts to support their employees’ career development (Article 10-3). In addition, the Ministry of Health, Labour and Welfare has promoted and supported career development for workers.
Recently in Japan, people have started to use the right to career under the context of maternity harassment, in addition to dismissal context. “Maternity harassment” is a category of workplace harassment directed at women due to pregnancy or childbirth. In Japan, any discrimination against on the basis of sex is prohibited under the Equal Employment Opportunity Act and it is illegal to dismiss, demote or treat disadvantageously women because of her pregnancy or maternity (Article 9). As a result, according to the survey in 2015, more mothers have returned to work: the return rate of women who delivered their first babies has increased from 28.9% (2005-2009) to 53.1% (2010-2014). However, the problems have come up after mothers came back to office.
One report in 2017 shows that one out of three women have experienced troubles at work related to child raising. The biggest trouble for them is that their authority was narrowed by employers (36.3%) and the second one is that they were assigned tasks which they did not want to do (26.3%). In other words, they have to give up their career plans just because they have children. Therefore, they have started to claim the right to career, the right to pursue their own lifespan career path.
Here is one example related to maternity harassment. A woman was pregnant with her second child and asked the employer to transfer her to a physically less burden job. The employer agreed and relocated her as she requested. At the same time, she was demoted due to the change of work, from the managerial rank to the non-managerial rank. She consented to this demotion. She took a maternity leave and then came back to work. She was assigned the original job but still at the non-managerial rank. At that time, a person who had a practical experience 6 years less than her was in charge of the managerial tasks which she used to do before she got pregnant.
In this case, the Supreme Court of Japan ruled that the demotion violates the Equal Employment Opportunity Act unless the court can find objectively reasonable grounds for her to give her consent to such demotion at her own will (Saiko Saibansho [Sup. Ct.], Oct. 23, 2014, Hei 24 (ju) No.2231, HANTA No.1410, 47). Here, when she agreed to the demotion, the employer did not explain to her that she was not able to return her original position as the managerial employee. Therefore, her consent to the demotion is deemed to be invalid and void and thus the employer breached the act.
In this case, it was possible to claim the violation of the act because she got demoted. However, it is difficult to make a claim if the quality of work is decreased or if the scope and authority of work is narrowed without any demotion. In such case, she needs to prove she is “treated disadvantageously” because of her maternity under the Equal Employment Opportunity Act, but such a narrowed authority might be based on her request to limit the workload to keep balance between life and work, and thus would not constitute a discrimination by the company. Or, the company might justify the distinctions from other colleagues as her working hours are less and limited. However, she may claim the right to career and request the company to support her career development under the Amendment by assigning her appropriate tasks. In response to this right to career claim, the company has to consider not only her current skills or current situations but also her career plan in long run when making assignments for her.
The current discussions on the right to career in Japan raise a universal question about the tension between the employer’s right to manage and assign jobs to employees, on the one hand, and the employees’ right to pursue a career, on the other. But given that an employee’s interest in work extends beyond the mere fact of a job and to the ability to imagine and pursue and career trajectory, this is a question worth grappling with.