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Issues students face when looking for employment
– Oware harassment and freedom of speech

Mutsuko Asakura
Professor, Faculty of Law, Waseda University

Entering college, getting a job, and getting married are life’s three big projects. Therefore, it is no surprise that college students’ immediate and primary concern is finding a job. Although students should focus on their studies, it is easy to understand why they are anxious about finding employment. The labor market has improved recently but students still feel vulnerable until they have secured a job.

This year we encountered two issues concerning the hiring process for students. One is the revision of the “Guidelines on Screening for Employment” by the Japanese Business Federation (Keidanren). The revision requires companies to cease publicity or screening activities and job offers until March 1, August 1, and October 1. This greatly affected the employment process for students. Not all companies complied with the revision and some non-Keidanren members made tentative job offers. When Keidanren began their screening processes for prospective employees, non-member companies that made informal job offers pressured students to decline future offers and cease looking for employment (oware harassment, or owahara in Japanese). The Keidanren revision was an attempt to make companies refrain from launching early screening activities that interfere with students’ studies. In one sense, this revision backfired and instead filled students with concerns such as “Will I have to pay compensation if I decline an informal job offer?”

Students, on the other hand, should also respond in good faith as much as possible once they receive informal job offers. However, it is inevitable that some students will offers when considering their future. It is unrealistic and unproductive for companies to hold students legally responsible for turning down an offer. I believe making students pay the price for the inadvertent effects of the revision is a serious problem.

Another issue concerns freedom of speech. During the recent political battle over the security-related laws, many young people took action and expressed their own beliefs. Many believed this was the beginning of a counter democracy movement. However, there was an unpleasant rumor that some politicians were saying, "Demonstrators will be disappointed when they try to find a job." This has led many to ask which should be prioritized: students’ freedom of thought or a company’s freedom to control its hiring process.

A well-known case involving denial of employment based on an individual’s beliefs is the “Mitsubishi Plastics case.” Mitsubishi Plastics denied formal employment to Tohoku University graduate Tatsuo Takano following his three-month probationary period on the grounds that he did not disclose in his interview that he was involved in student demonstrations as a college student. Mr. Takano sued the company for infringing his freedom of thought and beliefs. The Supreme Court ruled that (1) unless otherwise restricted by applicable law or regulations, denying employment on the grounds of thought and beliefs does not constitute a direct violation of laws as companies in general have the freedom to hire, and that (2) a company may exercise the right of termination reserved by the company upon learning a new fact during the probationary period that could not be known in the job interview; provided, however, that this shall apply only where there are objective and reasonable grounds. Accordingly, the Supreme Court sent the case back to the lower court requesting to examine the case as to whether there were reasonable grounds for the company to terminate Takano. (The Grand Bench of the Supreme Court, decision on December 12, 1973, page 1,536 of No. 11, Volume 27 of the civil procedure casebook).

At the Tokyo High Court, Takano and Mitsubishi Plastics reached a settlement that supported Takano’s claims. Takano returned to work after a 13-year prolonged lawsuit and was promoted to department head, was respected by many employees, and even became president of a subsidiary after leaving Mitsubishi Plastics. I saw a video of Takano giving a lecture at Sapporo Gakuin University immediately after retiring at the age of 65. Takano consistently advocated for justice even after becoming a businessperson. He said he wanted to be involved with social activities after retiring from business. However, the respected Takano suddenly died from a stroke one month later.

Let's get back to the Supreme Court's ruling. In regards to this ruling by the Supreme Court, it is often emphasized that in part (1) above the Supreme Court recognized companies' freedom to hire. It seems that the above mentioned rumor to criticize demonstrators was also based on this the ruling. However, the essential part of the ruling is part (2), and part (1) is merely an obiter dictum (not the main part of the ruling). It is indeed an issue that only part (1), which was essentially unnecessary, is emphasized. However, if we carefully read part (1), we can understand why the Supreme Court also stated that companies' freedom to hire is bound by laws and regulations. Furthermore, it has been 42 years since this Supreme Court ruling. Over the years, companies' employment activities have been subject various different regulations.

The government has implemented many laws that prohibit discrimination in the screening process (the Equal Employment Opportunity Law for Men and Women, the Law Concerning Stabilization of Employment of Older Persons, the Employment Measures Act, the Disabled Persons Employment Promotion Law, etc.). In addition, the Dowa problem (minority assimilation problems in Japan) triggered more stringent administrative guidance for fair employment screenings, and prohibited the gathering of information intended for rejecting certain persons (Article 5-4 of the Employment Security Act). In today’s society, asking questions about one’s thoughts and beliefs, as Mitsubishi Plastics did to Takano is a clear violation of the law. Nevertheless, it is unfortunate that justice has not overturned the Supreme Court’s ruling on the Mitsubishi Plastics case. This is simply because there have been no lawsuits disputing the denial of employment. However, it is now common knowledge among judicial officials that denying employment on the grounds of thought and beliefs is illegal. Despite the fact that an obiter dictum of the Supreme Court is already entirely a dead letter, some politicians seem to be using it to threaten demonstrators, which is unacceptable.

Mutsuko Asakura
Professor, Faculty of Law, Waseda University

[Profile]
Mutsuko Asakura was born in 1948 and completed the Doctoral Course at Tokyo Metropolitan University's Graduate School of Social Sciences in 1979. She received her Ph.D. in law from Waseda University in 1993. After serving as Professor at Tokyo Metropolitan University's Faculty of Law, she was appointed to her current post in 2004. She specializes in labor law and gender law.

Main Research Themes: Research on employment discrimination law/The principle of equal pay for equal value work

Major Works: ARMA Rodoho Daigohan (ARMA Labor Law, 5th Edition) (jointly authored, Yuhikaku Publishing Co., 2015), Doitsukachirodo Doitsuchingin Gensoku No Jisshi Shisutemu (Implementation System for the Principle of Equal Pay for Equal Value Work) (jointly authored and edited, Yuhikaku Publishing Co., 2010), Rodoho To Gender (Labor Law and Gender) (Keiso Shobo, 2004), Kintoho No Shin-sekai (The New World of Equality Law) (Yuhikaku Publishing Co., 1999), Danjo Koyo Byodohoron – Igirisu To Nihon (The Theory of Equal Employment Law—England and Japan) (Domesu Publishers Inc., 1991)