Height, weight and other 'gender-neutral' hiring conditions under scrutiny

INEQUALITY AT THE WORKPLACE: Height, weight and other 'gender-neutral' hiring conditions under scrutiny
01/11/2006
By MIEKO TAKENOBU, The Asahi Shimbun

If a woman is denied a job because she is short, or if she is not promoted because she works part time, is that sexual discrimination?

Most employers would say "no." They say those conditions apply to men and women equally.

But in fact, women in general are shorter than men, and more women work part time. If proposed revisions to the Equal Employment Opportunity Law are approved by the Diet this year, employers will be prohibited from applying such apparently gender-neutral conditions when dealing with employees.

The labor ministry's initial draft proposal, issued in November, said such "indirect discrimination"--not just outright sexual discrimination--should be banned under the law.

The revisions would bar employers from applying conditions that would hurt one group--men or women--

more than the other. Exceptions would be made when the nature of the job would justify the conditions.

The government, under pressure to conform with U.N. sexual discrimination guidelines, is keen to get the legislation up quickly. But the proposed revisions triggered a heated debate, dividing women's groups, labor unions and employers.

If the ban is put in place, companies would be prohibited from requiring that applicants for a career-track position be willing to be transferred anywhere across the nation, when in fact many career employees remain in one office. Such a condition would likely discourage women from applying.

Indirect discrimination is also seen in the practice of awarding family allowances only to the "head of a household" as listed in the residents registry. This practice disqualifies most women from receiving the benefits.

Shizuko Koedo, a member of the Working Women's Network, says the ban on indirect discrimination, already in place in many developed nations, has long been an "earnest wish" of all working women here.

"The equal opportunity law has banned (outright) sexual discrimination, but indirect discrimination has been a loophole," says Koedo, whose group supports women suing their employers for discrimination.

"As a result, women are often assigned to clerical-job tracks or part-time positions that are left out of the promotion ladder. It has led to a still wider gap between men and women."

Even in management, some people have come out in favor of the revisions.

A 54-year-old official in charge of corporate social responsibility at a major chemical maker says Japan must move with the times.

"It is essential to swiftly get accustomed to international standards in view of crisis management, for example, in a sex discrimination suit (at an overseas branch)," the official said.

However, most business leaders were wary of the proposal.

In November, when the Ministry of Health, Labor and Welfare handed the draft revisions to a panel on equal employment opportunity of the Labor Policy Council, it drew strong opposition from panel members representing business.

"This is a very tough proposal that we could never accept," one said.

One business operator said the proposed ban "would invite confusion as it constitutes interference into the rights of management."

Employers argued that such a broad notion of indirect discrimination, once written into law, could be misused. That concern was especially strong among small and mid-sized businesses.

Nobunori Ishizaki, an attorney well-versed in corporate labor management, said traditional male dominance in corporate life is behind the employers' opposition.

"Japanese companies have operated on the assumption that the male head of a family is the breadwinner," he said. "As a result, the ratios of women in management decision-making positions and women on the regular payroll are extremely small."

Businesses would struggle to cope with a ban that would strike at the roots of corporate culture, Ishizaki said. Instead, it would be better to wait until low birthrates and a shrinking labor market make women indispensible. Then the ban will be more effective, he said.

Even labor unions had a gripe with the draft.

They complained that the proposed revision may be too specific. The ministry planned to provide a list of examples of prohibited practices, which may ultimately be included in a ministry ordinance. If the ordinance spells out exactly what is not allowed, labor officials argue, then businesses will have a free hand to do whatever is not on the list.

Attorney Yoko Kuroiwa, a member of the Labor Lawyers Association of Japan, shared the concern. The law may in fact hurt women's chances of winning indirect discrimination cases.

"The law initially did not ban employing men and women for different tracks, and women suing their employers lost in one case after another just for that reason," she said.

"It could end up a repetition of that mistake."

The Labor Policy Council apparently heeded the employers' concerns. In late December, the council came out with a set of recommendations that listed only limited examples of indirect discrimination to be banned under the law.

Businesses would be barred from setting height, weight and physicial strength criteria for employment unless they are justifiable requirements for the job. They also would not be allowed to require readiness to transfer anywhere across the nation for career-track positions or to requre records of transfer as conditions for promotion.

The ministry plans to introduce a revision bill at the regular Diet session to open this month.

The government is under pressure to move quickly. In 2003, the U.N. Committee on the Elimination of Discrimination Against Women recommended that Japan try to end indirect discrimination. This year the government must report on its progress.

In a lecture on the issue in Osaka in November, Hanna Beate Schopp-Schilling, vice chair of the committee, urged the government to press the issue, despite the opposition from businesses.

Mutsuko Asakura, a professor of labor law at Waseda University's graduate school, says that low birthrates make it all the more vital for Japan to move quickly. In the long run, the changes would benefit both men and women because businesses would be forced to become more accommodating to parents.

"If indirect discrimination is banned, long work hours and other conditions that do not allow women to take care of their children would become illegal," she said.

"To resolve the problem, all male-oriented standards must be thoroughly reviewed.

"Because of this age of low birthrates, which requires both men and women to engage in child-care while having a job, forming provisions on indirect discrimination is all the more important," Asakura said.(IHT/Asahi: January 11,2006)