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Sunday, April 29, 2012
Konami staffer's victory not a game-changer
Japan's 'significantly flawed' legal system forces many women to choose between their careers and having children
By TOMOKO OTAKE
There is no shortage of laws in Japan stating that working women should be given the same employment protection and rights as their male counterparts.
For a start, there is the Constitution, which declares everyone to be equal under the law regardless of gender. And then there is the Labor Standards Law, which stipulates the principle of equal wages for both men and women doing the same work.
Also, it's been 27 years since the Equal Employment Opportunity Law was enacted, imposing a blanket ban on various forms of discrimination against female workers. In addition, there's the 1992 Child Care and Family Care Leave Law, which specifically bans employers from treating unfavorably any employees requesting or obtaining such leaves.
So much for the legal furniture, but the elephant in the room that all too often prevails over these good intentions are the deeply ingrained stereotypes in Japanese society about what women should do after giving birth — regardless of their ability or career intentions.
For proof of this, look no further than the case of Yoko Sekiguchi, who had to sue her employer of 13 years to establish that its decision to automatically demote her after she returned from maternity and child-care leave was illegal.
Sekiguchi, now a 39-year-old former employee of Konami Digital Entertainment, had steadily built up her career at the major video-game developer before she became pregnant and took maternity and child-care leave beginning in July 2008.
At that time, she says she found her work in the company's license-affairs department fulfilling. Her tasks included negotiating with rights holders abroad for permission to feature characters based on real-life soccer players in Konami's popular "Winning Eleven" game.
In her mind, she never doubted that after her nine-month leave she would return to the same job. "Initially I was thinking of going back to work earlier, in February 2009," she said during an interview at a Tokyo cafe recently. Smartly dressed in a black leather jacket, a red mini-skirt and high heels, Sekiguchi didn't look like someone who had just come through a drawn-out court battle against her former employer as she sat there speaking softly and displaying an elegant smile.
"When I met my boss in December 2008 over lunch, I said I had hired a babysitter and secured a spot at daycare," she recalled. But the company suggested it was better for her to delay the timing of her return to work to April, she said.
Then, nine days before her scheduled return that month, the company called her into the office — where she was told she would be transferred to an entry-level job dealing with domestic license affairs. As well, her "job grade" — which the company assigns to each employee — was to be lowered by two ranks from a semi-managerial to a non-managerial one. As a result of these changes, it later transpired that her annual salary was reduced from ¥6.4 million to ¥5.2 million.
Shocked but not wishing to accept these changed terms and conditions, Sekiguchi insisted to the company that she would be able to work overtime and go on business trips whenever necessary — just as she had done before giving birth.
During subsequent meetings with the company, however, she was told that the decision to change her duties was a "show of consideration (by the company) that you should feel thankful for."
But when Sekiguchi contacted a government labor bureau and a lawyer for advice, she was told it was highly likely the company was in breach of the law, she said.
"Then, one day before returning to work on April 15, (2009), I met together with the head of Konami's license-affairs department and the head of its legal-affairs department," she said. "Up until then, I'd thought the legal-affairs department would never impose such an illegal decision on me, and that there must have been some kind of communication problem. But at that meeting, I realized that the head of the legal affairs department knew exactly what was going on, and the only reason I could come up with was that I had a baby. That's when I decided to sue the company."
Consequently, Sekiguchi filed suit against Konami Digital Entertainment in June 2009, claiming that the company abused its authority over personnel affairs by demoting her and cutting her pay in violation of several laws. She demanded ¥33 million in damages from the company — an amount she said she set deliberately high to keep Konami from trying to settle out of court.
She also demanded that the company print words of apology to her on its website, and that the company write in its regulations that employees taking child-care leaves cannot be transferred to another job without their consent.
However, what seemed like a clear-cut case that Sekiguchi would easily win turned out to be riddled with legal difficulties — as lawyers and experts involved in the litigation explained in detail at a symposium at Waseda Law School in Tokyo last month.
"When I heard Sekiguchi's story and how her child-care leave led to her demotion and a pay cut of more than ¥1 million a year, I thought it was a clear violation of the law," said Yoko Hayashi, a veteran lawyer who took on the case. "But as we began the lawsuit, we realized we faced many difficult hurdles."
One of the biggest of these, Hayashi explained, was Konami's argument that her move was not a demotion but a reassignment of her duties, and that different duties resulted in different wages. Another hurdle to overcome was to refute the company's claim that its personnel decision was entirely within its discretion.
"The company insisted that Sekiguchi was not demoted, but that her job grade was changed, from a job dealing with overseas license affairs to one involving domestic license affairs, and because of the job change, her wage went down," Hayashi said. "In hindsight, I shouldn't have overlooked this. I had no idea (the judges) would believe such a claim — that it did not demote her or did not evaluate her abilities any lower."
But the judges did buy the company's argument. The Tokyo District Court, in its ruling in March 2011, dismissed Sekiguchi's case, apart from acknowledging only partial claims. Moreover, the ruling said that they saw "no special circumstances that render (her transfer) unreasonable."
Sekiguchi appealed to the Tokyo High Court, and in December 2011 succeeded in getting the judges to reverse the district court decision. In their ruling, the high court judges found that Sekiguchi's demotion and the pay cut were illegal and invalid, and they ordered the company to pay nearly ¥1 million in damages.
Even though the damages were a fraction of what she had demanded, Sekiguchi and her lawyers considered the outcome to be a victory. That was because, in their written ruling, the high court judges said the company's decisions were "clearly made without the appellant's consent," and that they constituted "an abuse of authority" by the defendant.
And that was that in court, as neither Sekiguchi nor Konami Digital Entertainment appealed to the Supreme Court.
However, on closer inspection those judges' ruling shows that the fate of working women in Japan remains on shaky ground.
That's because, according to Yoichi Motohisa, a law professor at Tokyo-based Kokugakuin University — whose opinion paper supporting the plaintiff helped overturn the district court decision — the high court ruled that Konami's move was illegal and invalid because the company had no "legal grounds" to lower her grade and reduce her pay. In other words, he said, it neither agreed nor disagreed with the plaintiff's stance that she was discriminated against as a result of her maternity and child-care leaves.
"A company is not allowed to do what's not written in company regulations (known as shū gyō kisoku in Japanese)," Motohisa told the symposium at Waseda. "And this worked in our favor. The defendant had a reference to transfers of employees in its company regulations. But the same company regulations made no mention of changes in a worker's job grades or possible reduction of his or her pay. That's why such moves were considered groundless."
But Motoshisa went on to say that the current child-care leave law is very weak, in that women are only protected from unfavorable treatment caused "strictly" by their maternity and child-care leaves, and that companies are only required to "make an effort" toward returning them to their original posts.
"Our legal system is significantly flawed," he said.
Sekiguchi, who resigned from the company in February 2010, eight months after she filed her suit, entered Waseda Law School in April that year and is now in her third year there. She says all she wanted to do through the suit was to make clear to society that women should not be forced to choose between work and family.
"There are women who have endured much worse treatment than I have," Sekiguchi said, confessing that she wavered a lot before deciding to take her case to court. "I know there are women who are fired the moment the company finds out they are pregnant, or women who are placed in a tiny room to work (by companies trying to pressure them to quit). Very many women have given in to such treatment.
"But what kind of society is it if its women cannot work to develop their careers unless they choose not to have children?"
The Japan Times asked Konami Digital Entertainment to comment on the Tokyo High Court ruling, and on whether the ruling has resulted in any policy changes over its treatment of employees taking maternity and child-care leaves. The following is how the company's public relations department replied: "We understand the ruling, and will continue to take measures to make it easier (for such employees) to work at the company."