The Past is Prologue: Japan and Sex Discrimination Under Title VII

Japan may soon have laws more closely mirroring Title VII, which protects, among other classes of people, women from discrimination in private employment. Title VII of the Civil Rights Act of 1964 is a crucial tool for women in the United States. In fact, many would argue that it is the tool for women in the U.S. Title VII makes it

unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...(1)

Of course, laws are really only useful if courts are willing to enforce them. In the United States, it took several decades for Title VII to cover not only sexual discrimination that treated women differently (e.g. employers that made it an explicit policy to hire only female secretaries but male executives), but also sexual discrimination that impacted women differently than men (i.e., an employer giving a test or setting a requirement, other than one necessary to perform the job, which disproportionately disqualifies women more than men).

Japan already has laws that prevent disparate treatment of women in the work force. However, unlike the United States, Japan's sexual discrimination laws do not apply to cases of disparate impact. This may soon change: In response to pressures from the United Nations, Japan is in the process of passing legislation covering disparate impact:

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. (2)

It would be flattering to believe that the U.S. was far ahead of its time when it included women in the classes protected by Title VII. It's a nice thought, but the truth is far less complimentary and actually somewhat ironic:

As the story goes, a congressman named Howard W. Smith introduced an amendment offering protection against sex discrimination in a last-minute effort to defeat the entire legislation, because he believed that none of his peers would vote for protection for women. When the act as amended passed ... in Congress, Congressman Smith ... became an unwitting hero of the women’s movement. (3)

Mona Harrington, in her book Women Lawyers, confirms this less than noble beginning for Title VII:

The overwhelming purpose of the law was to protect against race discrimination. Sex got in only as a kind of joke. The original bill, focused on race, was amended to include sex at the initiative of a southern opponent of the legislation who hoped, thereby, to trivialize and thus defeat it. (4)

Despite the origins of Title VII, I am certainly grateful that we have it in the U.S., and for the broad way that this statute has been interpreted. Japanese women (and men, too, I’m sure) will certainly benefit when similar legislation is passed there:

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. (2)

Sources:
(1) 42 U.S.C. § 2000e-2(a)(1)
(2) Asahi.com, “Inequality at the Workplace” http://www.asahi.com/english/Herald-asahi/TKY200601110122.html
(3) O’Connor, Sandra Day. The Majesty of the Law. Random House: New York, 2003, pp. 161-2.
(4) Harrington, Mona. Women Lawyers. Plume: New York, 1993, p. 106.