[Excerpt translation from Japanese to English provided by Business & Human Rights
Resource Centre.]
Original document written by Solidarity Network with Migrants Japan, which can be found at
the following URL: https://migrants.jp/news/voice/20191209_3.html.
All rights are reserved by the copyright holder.

Letter seeking the inclusion of “racial harassment” in the draft guidelines on preventing
power harassment in workplaces
Japan has seen a rise in the number of foreign workers, which reached a peak in 2018 at
1,460,000 people. This number is expected to increase as the country expands its acceptance of
foreign workers, which officially began last year. In addition to this trend, figures for foreign
workers will be higher when taking into account Japanese citizens with overseas roots, such as
naturalized citizens and children of international marriages, and ethnic minorities.
Foreign workers and ethnic minorities in Japan experience workplace discrimination andharassment on a daily basis. According to a 2016 survey of foreign residents by the Ministry ofHealth, Labour and Welfare, the percentage of foreigners who had experienced discriminatory
treatment, such as insults stemming from their status as foreigners, over the last five years was
29.8%. Of these individuals, 38% reported that they had experienced incidents ofdiscriminatory remarks from clients, subordinates, colleagues, and supervisors in theirworkplace. Meanwhile, foreign workers who looked for jobs or have worked in the last fiveyears also reported various forms of discrimination. Of these individuals, 25% said that “theywere rejected for a job because they are foreigners”, 19.6% said that “they received lower pay
than their Japanese counterparts despite doing the same work”, and 17.1% said that “they wereineligible for promotions because they are foreigners and were thus placed at a disadvantage.”
In additions to this data, our organization’s research showed that foreign workers experience
many of the six types of workplace misconduct listed in the government’s draft guidelines on
power harassment in workplaces (see attached document for reference). Of these cases ofpower harassment, many can be classified as “racial harassment,” which is based on
differences in race, ethnicity, and nationality.
As an organization that seeks to promote respect and protection of foreign workers’ rights inJapan, we request that racial harassment be included in the “Draft Guidelines on Employment
Management to Address Actions in Workplaces where Employers Hold an AdvantageousPosition” (referred to as “Draft Guidelines”). As part of this request, we offer therecommendations below.
• Three requirements that define what constitutes power harassment in the workplace
In the draft guidelines, the Ministry of Health, Labour and Welfare have put forth thefollowing definition of power harassment:“Power harassment in the workplace are language and conduct that:
1. occur in a relationship where one party holds an advantageous position;
2. go beyond the boundaries of what is necessary or appropriate from an
operational standpoint; and3. threaten the workplace environment for employees
Power harassment must encompass all three criteria.”
However, it is not unusual for foreign workers and ethnic minorities to encounter
disadvantages in the workplace due to several reasons. One reason is the way in which theseworkers must contend with differences in race, ethnicity, and nationality in relationships not
only with their superiors, but also between colleagues and subordinates. Also complicating
workplace dynamics is that foreign workers and ethnic minorities often cannot speak Japanese
at a native level.
Taking this situation into consideration, the draft guideline’s requirement that all three criteria
must be met to recognize power harassment could narrow the possibility of remedy for workers
who face an unbearable amount of abuse.
The Draft Guidelines should therefore include “language or conduct in a context where aparty has an advantageous position over a worker” in its definition of power harassment.
This addition takes into account the disadvantageous position of many foreign workers
and ethnic minorities in the workplace.
The Draft Guidelines further explain that “language and conduct in a context where a party has
an advantageous position over a worker” are “those from a group comprised of colleagues orsubordinates that are difficult for the worker to resist or reject.” It is possible that foreign
workers and ethnic minorities will experience power harassment from not only groups ofpeople, such as colleagues and subordinates, but also individuals. These workers may havedifficulty resisting or rejecting actions by individuals because of differences in race,ethnicity, and nationality as well as the inability to speak Japanese at a native level. The
Draft Guidelines should thus remove references to language and conduct by “a group
comprised of colleagues or subordinates.”
Another issue with the Draft Guidelines is one of the criteria used to define power harassment:“Language and conduct that threaten the workplace environment for employees.” The draft
guidelines state that this criterion is determined on the basis of “how the average worker
perceives his or her workplace environment.” In other words, when an average worker inJapanese society experiences the same action under similar conditions, he or she must perceivethat this behavior has caused a level of harm that cannot be ignored. This standard is applied todetermine whether the third criterion can be used to judge whether a language or conduct is
power harassment.
However, the Draft Guidelines are unclear on what kind of worker is considered “anaverage worker in Japanese society.” This oversight gives the impression that foreignworkers and ethnic minorities have been excluded from this document. Furthermore, theDraft Guidelines not only fails to clarify the meaning of “the perception of the averageworker”, but also demonstrates a lack of consideration for foreign workers and ethnic
minorities, who may be unfamiliar with Japanese culture and practices. We therefore ask
that the Draft Guidelines eliminate the standard of “the perception of the averageworker,” instead explaining that workers’ perception of power harassment will differ
among individuals.
•Examples of what can be considered power harassment in the workplace

The Draft Guidelines offer six examples of incidents that can be considered power harassment
in workplaces. However, these examples are inadequate in covering incidents of power
harassment experienced by foreign workers and ethnic minorities in the workplace on a daily
basis.
In the overview, the Draft Guidelines states, “It is necessary to respond appropriately toallegations of power harassment through such measures as holding in-depth discussions…andby recognizing that determination of misconduct may differ on an individual basis and thatpower harassment is not limited to the examples provided.” However, if the Draft Guidelines
do not include examples that anticipate forms of power harassment experienced by foreign
workers and ethnic minorities, these workers will not be able to recognize certain types oflanguage and conduct as power harassment and thus seek remedy. Regarding the examples ofpower harassment, we offer the recommendations below.
1. Examples of emotional attacks (threats, defamation, humiliation, and severe verbal abuse)
The Draft Guidelines gives the example of language and conduct that is disrespectful of aperson’s personality. Such language and conduct include those that humiliate a person’s sexualorientation and gender identity. This example should include a reference to “personalattributes” along with “individuality.” The example should also include references to “race,ethnicity, and nationality” along with “sexual orientation and gender identity.”
2. The above example should also include using Japanese language proficiency as a reason
for defaming, humiliating, and inflicting severe verbal abuse.
3. The above example should also include using a worker’s visa status to threaten a worker.
4. The Draft Guidelines give the example of giving a task that underestimates a worker’s
ability—i.e. giving him/her responsibilities that are far below one’s knowledge andexperiences beyond a reasonable level. This example should also include using race,ethnicity, nationality, and/or differences in native language as a reason to remove aworker from his/her main job responsibilities or to reduce workplace responsibilities,
thereby impacting his/her treatment at work.
5. Regarding invasion of privacy (excessively interfering in a worker’s personal life), the Draft
Guidelines give the example of continuously monitoring workers outside of the workplace,such as taking photos of their personal items. This example should also include confiscationof workers’ passports and residence cards.
6. Regarding invasion of privacy (excessively interfering in a worker’s personal life), the Draft
Guidelines give the example of revealing a worker’s sensitive personal information, such as
his/her sexual orientation, gender identity, history of illness, and infertility treatments, tocolleagues without his/her permission. This example should include race, ethnicity, andnationality along with sexual orientation, political and medical history, and infertility
treatments.
• Examples that are not included in the Draft Guidelines
In addition to the incidents illustrated in the examples from the Draft Guidelines, foreign
workers and those who identify as ethnic minorities face other forms of serious harassment ona daily basis.
From our research, we found examples—as indicated under “Others” in the document,“Examples of Power Harassment (Racial Harassment) Experienced by Foreign Workers”—

where nationality was given as a reason for discriminatory treatment. We also learned ofinstances where the employer rationalized discriminatory remarks or separated bathrooms forJapanese and non-Japanese workers. In Japanese society, “foreigners” are not allowed to usebathrooms for “Japanese” people or are rebuked for doing so—a situation that recalls theCivil Rights Movement in the U.S.
Furthermore, it is difficult to prove in certain cases whether harassment experienced by foreign
workers and ethnic minorities is caused by race, ethnicity, and nationality.
Even if the harassment takes the form of violent behavior, it can difficult to determine
whether the abuse was perpetrated because of the victim’s personal attributes. It istherefore important and necessary to sufficiently provide examples where Japanesepeople exhibit a sense of superiority or supremacy towards foreign workers and ethnic
minorities.
To raise awareness about this issue, the Draft Guidelines should include examples on
racial harassment and preventive measures that employers should take against this typeof harassment.
● The guidelines on power harassment should be a scheme that supplements othermeasures to protect the rights of foreign workers.
Regardless of workers’ race, ethnicity, or nationality, their rights are protected under the law(Labour Standards Act Article 3, Article 22.4, and Industrial Safety and Health Law Article 3
Reference). In reality, however, foreign workers and those who identify as ethnic minorities
face discrimination and harassment on a daily basis, and labor management regulations areunable to protect their rights.
Japan does not currently have a law, such as the laws that protect the rights of foreign
residents, that recognizes the basic rights of foreign residents in a clear manner. Furthermore,damages caused by discrimination and harassment against foreign residents and ethnic
minorities remain unremedied because the government has not established a legal system ormeasures that regulate and prohibit this type of discrimination.
An issue that impacts foreign workers and those that identify as ethnic minorities is an issue
that affects society as a whole. In the guidelines, we strongly ask that the definition of power
harassment as well as the content related to examples and preventive measures be reconsidered
to ensure that each and every foreign resident and members of ethnic minority groups can seek
remedy for discrimination and harassment.