Resistible Force Meets Malleable Object: The ‘Introduction’ of Norms of Gender Equality into Japanese Employment Practice
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When Suzuki Setsuko went to work for Sumitomo Cement fifty years ago, employment prospects for Japanese women were bleak. Sumitomo’s regulations explicitly limited female employees to work ‘not requiring a high degree of judgment’ and “relatively little experience and skill”. It hired only high school graduates; women with more or less education need not apply; and, most importantly for Suzuki, all female employees had to quit upon marriage or the attainment of 30 years of age. Sumitomo’s practices reflected a broad social consensus and were virtually universal among Japanese employers. They also appeared to be well within prevailing law. The Constitution’s gender-equality provision did not apply to private employment, and the “protective” provisions of the Labor Standards Act (LSA) prevented employers from deploying women as freely as their male colleagues. The result was an employment structure that severely restricted women’s work opportunities, but ideally suited the interests of large employers. They could fully utilize women in menial but necessary jobs without having to make them part of the “company family” or grant them “permanent employment”, rhetorical tropes that constituted central pillars of post-war Japanese management. It was this seemingly invulnerable, monolithic structure that Suzuki directly attacked three years later when she sued Sumitomo for firing her after she got married and refused to quit. In the context, the decision to sue is remarkable, but what is even more remarkable is that she won, as did dozens of similarly situated woman in the years that followed. A lot has changed for Japanese working women since that litigation. Japan has anti-discrimination legislation that approaches that of the United States or Europe. Discrimination is not only illegal in marriage or retirement, but also in most other incidences of work life; sexual harassment is illegal and vigorously pursued by its victims; and the law reaches not only direct discriminatory measures but indirect approaches as well. Social attitudes have also changed. In 1982 the then President of the Japan Federation of Employers Associations could state that “by nature, women are better suited for raising children and domestic responsibilities”, without any concern about being contradicted. Indeed, a 1972 poll showed only 9.5 per cent of Japanese disagreeing with gender divisions of labour; by 2007 over 50 per cent disagreed, and over 40 per cent supported continued employment even after childbirth. Perhaps most startling—and unrealistic, as we shall see—over 80 per cent thought husbands should do an equal share of domestic work and childcare. The evolution in legal and social norms is reflected in government rhetoric on the international stage and in policy formation back home. Japan has been actively engaged with the process of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) since 1975, not only sending the required reports, but discussing and taking some of the specific measures urged by CEDAW. Many observers see a direct connection between these international exchanges and domestic attitudinal and policy changes. The reluctance to move forcefully against discrimination that marked the 1970s and 1980s had been replaced at the turn of the century by a series of “angel plans” and legislative efforts, reflecting CEDAW norms and ostensibly aimed at the creation of “a gender equal society”, even if doing so required fundamental changes in Japanese employment and family structures. By 2010, therefore, one could say that Japan was well within the mainstream of attitudes, laws and governmental policies on equal employment opportunity. What one could not say, however, is that the situation of Japanese working women has substantially improved. Despite attitudinal changes and government measures, the status of employed women in Japan remains far behind that of women in other developed countries, including other East Asian countries, and women remain overwhelmingly on their own when it comes to childcare and housework. Furthermore, the prospects for improvement in the future are not bright. In 2008, for example, Japan ranked 58th out of 108 countries in CEDAW’s gender empowerment index, down from 42nd in 2006. Whether judged in relative or absolute terms, progress towards the expressed goal of equality of opportunity has been glacial. In this chapter I investigate why dramatic progress, both in women’s legal rights and in popular attitudes about gender roles, has failed to produce an equivalent improvement in their actual situation. In doing so, I hope to shed light on the contingent nature of legal transplants. Although the usual narrative of powerful donors, brimming with money and expertise, imposing their legal structures and norms on poor countries with little room to resist does not fit the story told in this chapter, there is at least one strong parallel: the resentment of perceived pressure to conform to foreign norms. Some fully embraced such imitation, but the dominant attitude, especially as Japan grew rich, was irritation that it had to satisfy foreigners’ visions of an advanced society, much as it had been forced to do in the mid-nineteenth century. In other ways, of course, the situation was very different. Japan did not need experts to interpret foreign scripts; nor was it under even the metaphorical guns of the carrots and sticks presented to poor countries today. Although Japanese dispute it even today, Japan adopted the norm of gender equality voluntarily and on its own terms. But what happened after the adoption has again many parallels to the other case studies in this volume. The norms, so clear to their creators, were interpreted in many ways by different Japanese actors and were consciously manipulated for political and economic gain, but in the end, at least in the dimension of social survey data and government policy, they triumphed. What did not happen is the transformation in social behaviour that legal transfers, if they “fit” and change values, are supposed to bring about. From this perspective, the sixty-year story of gender equality in Japan may give us some insight into the future permutations of even the “successful” transfers discussed in the other chapters. The first section of this chapter describes Sumitomo Cement and the dozens of cases that followed into the 1970s and 1980s, which occurred in large part with no connection to international feminist norms or institutions. The second part presents the 1985 Equal Employment Opportunity Act (EEOA). It begins with an analysis of the legislative debate, which in contrast to the litigation that preceded it was directly influenced by international norms, and specifically by the declaration by the United Nations of 1976–1985 as the Decade for Women. This section then turns to the statute itself and its impact on subsequent litigation. The third part of this chapter describes Japan’s subsequent engagement in the CEDAW process and the apparent ties between CEDAW norms and subsequent legislation that eliminated weaknesses and loopholes in the EEOA, and brought Japanese anti-discrimination law essentially into line with that of other advanced nations. The last section presents the situation of Japanese working women today. The chapter concludes with an attempt to explain why successful litigation, comprehensive legislation, and the apparent diffusion of international norms of gender equality have not led to an equivalent improvement in the situation of Japanese working women.
Source Publication
Law and Development and the Global Discourses of Legal Transfers
Source Editors/Authors
John Gillespie, Pip Nicholson
Publication Date
2012
Recommended Citation
Upham, Frank K., "Resistible Force Meets Malleable Object: The ‘Introduction’ of Norms of Gender Equality into Japanese Employment Practice" (2012). Faculty Chapters. 1449.
https://gretchen.law.nyu.edu/fac-chapt/1449
