УДК 34.05

Countering workplace sexual harassment in Russia and Japan: comparison and assessment

Гаврюшина Полина Олеговна – студентка Санкт-Петербургского государственного университета.

Abstract: The paper examines the existing mechanisms for combating sexual harassment in the workplace in the Russian Federation and Japan. The author analyzes legislation in the context of national and global history, highlights current gaps and suggests ways to change and further improve legislation in this area. Using the example of Japanese legal regulation, the paper shows an example of the successful creation of mechanisms for protecting individuals from sexual harassment in the workplace and suggests possible options for regulations and social practices that can be implemented in Russia.

Аннотация: В работе рассматриваются существующие механизмы борьбы с сексуальным домогательством на рабочем месте в Российской Федерации и Японии. Автор анализирует законодательство в контексте национальной и мировой истории, выделяет актуальные пробелы и предлагает способы изменения и дальнейшего улучшения законодательства в данной сфере. В работе на примере японского правового регулирования показывается пример успешного создания механизмов защиты лиц от сексуального домогательства на рабочем месте и предлагаются возможные варианты нормативных положений и социальных практик, которые могут быть имплементированы в России.

Keywords: labor law, workplace sexual harassment, Japanese law, harassment, labor protection, protection of the dignity of the worker.

Ключевые слова: трудовое право, сексуальное домогательство на рабочем месте, право Японии, харассмент, охрана труда, защита достоинства работника.

A survey conducted by Online Market Intelligence in 2020 in Russia found that 7% of men and 16% of women have experienced sexual harassment at least once in their careers [1]. However, almost half of the respondents did not seek legal or other assistance following the harassment. In 2021 the Committee on the Elimination of Discrimination against Women (CEDAW) presented Concluding observations on the ninth periodic report of the Russian Federation in which it highlighted an absence of legislation criminalizing sexual harassment in the workplace [2, p. 11]. Thus, it can be concluded that Russia needs fundamental changes in the matter of protection against workplace sexual harassment.

However, there are examples of national legislative systems that to some extent successfully combat sexual harassment at work. For instance, the Japanese legislative system of combating sexual abuse in the workplace has proved to be rather effective, albeit lacking in the ubiquity of implementation of international standards [3]. For this reason, it is not unrealistic to posit that Japanese legislation can be an example of possible changes that the Russian legislator can adopt.

One of the major problems that prevents Russian legislators from successfully countering workplace sexual harassment is the fact that there is no unified definition of sexual harassment with both academics and judges defining the term differently. For example, according to O. Vedernikova, the term "sexual harassment" includes any unwanted touching, kissing, as well as offensive jokes and statements about appearance, obscene gestures, unwanted requests, and demands of sexual nature [4]. S.V. Veklenko and A.V. Stulov interpret sexual harassment as obtrusive actions, aimed at reaching the goals associated with a persistent desire to achieve the satisfaction of one's sexual needs [5, p. 14]. Simultaneously, the Supreme Court of the Russian Federation refrains from deriving the definition at all, opting to simply refer to the Committee on the Elimination of Discrimination against Women, which notes that sexual harassment in the workplace includes such manifestations of unwanted sexually motivated behavior as physical contact, direct or indirect remarks of sexual nature, and coercion to engage in sexual intercourse, expressed in words or actions [6]. Absence of a definition for sexual harassment prevents legislators from introducing any workplace sexual harassment related laws.

With a clear lack of certainty what exactly workplace sexual harassment entails, there are a few concepts in Russian law that can potentially imply sexual harassment at work but nevertheless fail to be applied successfully. For instance, article 131 of the Criminal Code of the Russian Federation prohibits rape. Also, article 132 punishes sexual actions with the use of violence or with the threat of its use against the victim or other persons, or with the taking advantage of the helpless condition of the victim. Article 133 of the Code punishes the compulsion to perform sexual actions. However, the application of these provisions seems unlikely. Regarding article 133, if the victim is financially or otherwise dependent on the person, but the harasser does not use their status or position to threaten the victim, said provision cannot be applied. The presence of dependence itself is not a crucial factor, it is the use of such dependence as a means to pressure the victim into a sexual act that is important. This, therefore, significantly reduces the possibility of this article being applied to victims of workplace sexual harassment.

Secondly, article 5.61 of the Code of Administrative Offences of the Russian Federation prohibits insults. Insults imply humiliation of the honor and dignity of another person, expressed in an indecent or contrary to generally accepted norms of morality form. Once again, the likelihood of applying this article to sexual harassment in the workplace is almost minimal. For instance, if a harasser in detail describes a sexual act with the victim but uses a literary style of speech, their actions will not be subject to this article [7, p. 65]. The fact that the assessment of the indecency of the statement is solemnly at the discretion of the court can also hinder a victim from referring to this article when trying to restore their violated rights.

Additionally, article 81 of the Labor Code of the Russian Federation contains the concept of an “immoral deed” that applies to employees of the educational sector and can lead to termination of a labor agreement on an employer's initiative. A deed is considered immoral if it is contrary to generally accepted norms of morality, regardless of whether it is related to the process of work or not. One could assume that, perhaps, this concept could protect educators from sexual harassment since sexual harassment at work is undoubtedly rather immoral. However, this method of protection also has its own limitations. Since it can be used only by an in order to terminate the labor contract, the application of this article also employer depends on the opinion of the employer, which obviously can be deeply subjective. Consequently, if an employer deems a certain instance of sexual harassment as a, for example, display of affection, a harassed employee will not be able to succeed in getting its harasser dismissed.

Finally, the only possibility of protection may be the application of article 5.27 of the Code of Administrative Offences, which punishes violation of labor laws and labor protection laws. An act of workplace sexual harassment violates the right of an employee to protect their dignity during the period of employment (article 2 of the Labor Code). However, as pointed out by scholars, to this moment, there were no cases in which this article would have been applied to cases of sexual harassment at work [7, p. 66].

 After analyzing the provisions available in Russian legislation, it can be concluded that although there are articles in the legislation punishing sexual abuse or coercion to sexual activity, none of them can be effectively used to protect workers suffering from workplace sexual harassment. In most cases, Russian legislator operates with narrowly interpreted concepts that do not apply to situations that arise during work relations. Subsequently, the worker is left unprotected in the face of sexual harassment.

It should be also considered that the Russian labor market is highly disadvantageous for women. It is still heavily segregated by gender [8, p. 133] which leaves women (who are initially more likely to be victims of sexual harassment) even more vulnerable. Without the appropriate regulation, women are doomed to be victims of the power hierarchy that is inherent in Russian patriarchal society. Although in the recently adopted National Action Strategy for Women during 2023-2030 legislators acknowledge the need for improvement of the legislation regarding prevention of violence against women, including domestic violence, harassment, sexual harassment at work, sexualized violence, we have still yet to see any significant changes.

In contrast, Japanese legislation has been dealing with the problem of workplace sexual harassment at work quite effectively. Realization of the severity of the problem of sexual harassment in Japan started to surge in the 1980s. In 1989, a private research group in Tokyo surveyed more than 6,500 women on their experience with sexual harassment [9, p. 811]. The results showed that sexual harassment was widespread. However, the Japanese legislation at that time did not prohibit sexual harassment, considering it a personal matter between people, and did not derive any legal definition of sexual harassment until the late 1990s. One of the definitions of sexual harassment found in Japanese legislation is in article 2 of the National Personnel Authority Act 10-10 (NPA) which states that sexual harassment is the verbal or physical conduct of sexual nature in or outside the workplace that makes others uncomfortable. However, it is important to note that the NPA's measures are designed only for sexual harassment regarding national public employees, administrative service recipients, and outsourced workers at the workplace. Although technically this definition does not apply to instances of workplace sexual harassment in other organizations, it is still an important development that helps to understand how the Japanese legislator views sexual harassment.

The Guidelines on measures to be adopted for labor issues caused by sexual harassment in the workplace [10] define sexual harassment as adverse treatment of workers due to the workers’ responses to unwanted sexual conduct or comments. Adverse treatment can be expressed in the form of dismissal, demotion, or salary decrease and the creation of a hostile working environment that hinders employees from fulfilling their work obligations.

The Guidelines concerning measures to be taken by employers in terms of employment management concerning problems caused by sexual harassment in the workplace [11] distinguish two types of sexual harassment:

1. daisho – quid pro quo;
2. kankyo – hostile environment.

Quid pro quo harassment occurs when a superior offers a benefit to an employee in exchange for sexual favors or threatens to disadvantage an employee in case they reject such requests. Hostile environment harassment exists when employers, executives, supervisors, co-workers, or even customers create an unpleasant work environment by discussing sex with the victims or by behaving in ways that hinder the effectiveness of work. Ultimately, Japanese law offers a broad definition of sexual harassment at work, determining what specifically falls within the scope of these definitions.

In regards to methods of protection, one of the most important provisions is contained in article 11 of the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (Act on Equal Opportunity) [12] which states that employers have a duty to prevent sexual harassment. As was pointed out in the 1998 Guidelines published by the Ministry of Labor [13], employers must take three steps to address this problem. Firstly, they must clarify policies regarding sexual harassment to employees and educate them in order to increase the overall understanding of the causes of workplace sexual harassment. Secondly, employers must establish a competent system to address sexual harassment complaints. Thirdly, employers are obliged to respond and investigate such claims as promptly as possible. Additionally, the Guidelines suggest that employers should adopt anti-retaliation policies toward workers who come forward with their sexual harassment complaints and respect the privacy of these employees. In case the employers violate the Act on Equal Opportunity, the Minister of Health, Labor and Welfare can post companies’ names to publicly shame them. However, companies still have full autonomy to form their anti-sexual harassment policies and resolve these complaints independently, which slightly impairs the effectiveness of these measures.

Japanese legislation also provides protection from sexual harassment under tort and contract theories. Article 709 of the Civil Code states that a person who has intentionally or negligently infringed any right of others or legally protected the interest of others shall be liable to compensate for any damages resulting in consequence. It is generally accepted by courts that workplace sexual harassment infringes a person’s rights to maintain their dignity and their interest in working in a non-hostile environment [14, p. 524].

Under the article 715 of the Civil Code, an employer is liable for damages inflicted on a third party by their employees with respect to the execution of that business. This article is only applicable if an employer failed to exercise reasonable care in appointing the employee or in supervising the business. However, the main question is how to decide whether the tortious act had been conducted with respect to the execution of business or not. The judicial practice has established factors that help to determine whether the offender's conduct was carried out in the implementation of their duties:

1. the time and place of the harassment;
2. the nature of the content and audience of verbal comments;
3. the job positions of the offender and the victim;
4. whether the offender took advantage of their status;
5. the continuity of harassment in cases where a part of the conduct took place outside of working hours or the workplace [14, p. 548].

Article 5 of the Labor Contract Act [15] acknowledges an employer’s obligation to take necessary care to ensure the physical and mental health and safety of its employees. Court precedent, however, expands this obligation, adding the duty to adjust the working environment. For example, in one case, the court stated that the employer has a duty supplementary to the contract to keep the workplace auspicious to work for the employees (see Mie sekuhara case, Tsu District Court), while in the other case it was stated that the employer must adjust the working environment so that the employees’ privacy will not be invaded [10]. This addition to the obligation specified in the Labor Contract Act is more than necessary since the concept of “ensuring the physical and mental health and safety of employees” may or may not constitute the duty to protect from sexual harassment. At the same time, the obligation to adjust the working environment means protecting the worker from any obstacles that may make the work challenging mentally. This concept is broader since it implies taking preventive measures regarding workplace sexual harassment and immediately stopping sexual harassment once it occurs.

Concerning the most recent developments of the anti-harassment legislation in Japan, a new law “the Power Harassment Prevention Act” [16] was adopted in 2020. The new law legally coined the term “pawa hara” which it defines as remarks and behavior of people taking advantage of their superior positions in the workplace that exceed what is necessary for the conduct of business, thereby harming the working environment. As can be concluded, workplace sexual harassment also falls under the scope of this definition. It should be noticed that the Power Harassment Act mostly duplicates the measures provided by the Ministry of Labor’s 1998 Guidelines. The only explanation for this copying of the norms seems to be the desire of the legislator to extend the existing measures regarding sexual harassment to all types of workplace harassment in general.

As can be concluded, Japanese legislation offers plenty of methods of protection from sexual harassment, both through labor and civil legislative mechanisms. The adoption of EEOL and its consequential revisions had a positive impact on the state of sexual harassment in the workplace. Many firms have created systems within their personnel divisions to deal with sexual harassment and made arrangements with external organizations to offer professional counseling. In the case of the National Personnel Authority, they even extended the protection beyond existing legislation that protects only women and introduced the protection of men as well. Overall, the concern about providing mechanisms to combat workplace sexual harassment has been steadily growing, even in sectors where women are traditionally under-represented [17, p. 38].

One of the primary problems of the labor legislation regarding sexual harassment is still the fact that neither EEOL nor the ensuing Guidelines provide legal mechanisms to hold employers and harassers accountable. As was stated earlier, the only measure provided by these acts is the right for the Ministry of Labor to publish the names of companies that did not abide by the law or the recommendations. Although Japanese society is rather homogenous and values reputation above all things, these measures are still quite ineffective and feel like more of a “slap on the wrist” for an employer rather than a severe penance.

Nonetheless, the legislation still proved to be quite effective - with workplace sexual harassment rates eventually dropping after the amendment of the EEOL [14, p. 820]. As promised by the Council for the Realization of Work Style Reform, in order to ask for responsibility and awareness of executives of companies, the government is planning to require company-wide improving measures against a company imposing guidance on executives including countermeasures against power-harassment [19]. Henceforth, there are grounds to believe that Japanese legislation will continue its gradual improvement in the future. 

Therefore, it is not unreasonable to suggest that Russian legislators can learn from the experience of their Japanese colleagues in order to improve the Russian system. Since Russian legislation is still fairly underdeveloped in the area of workplace sexual harassment, it could be beneficial to start with the introduction of measures that would make an employer responsible for instances of sexual harassment at work. It is also important to establish systems that would allow victims to report the harassment without worrying about retaliation or invasion of their privacy.  

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