- 1 Importance of Company Action
- 2 Obtaining an Opinion from an Outside Expert
- 3 Fact-finding Investigation
- 4 Determining the Appropriateness and Reasonableness of Disciplinary Action
- 5 Maintenance of internal rules and compliance system (Corporate Social Responsibility)
Importance of Company Action
Our firm often receives consultations regarding sexual harassment. In some cases, it is quite difficult to determine whether or not it constitutes sexual harassment. For example, touching a woman’s body or making inappropriate comments such as calling down a female employee.
If the company has a formal reporting system, such as an internal whistle-blowing system or a suggestion box system, and a report is made based on such reporting system, the company is required to take action in accordance with those regulations. If a report of sexual harassment is made and left unaddressed, the company may be sued for damages by the employee, claiming that there was a problem with the company’s management system.
On the other hand, if a disciplinary action is taken in accordance with the employment regulations without sufficient investigation of the facts, the male employee may file a lawsuit for damages or a lawsuit to confirm the invalidity of the disciplinary procedure. Since allegations of sexual harassment are an important matter for labor management, it is not advisable to leave the matter as it is. It is necessary to hear the circumstances from the person concerned, confirm whether or not there is sexual harassment, and take appropriate measures based on the employment regulations and the Labor Standards Law, etc.
Obtaining an Opinion from an Outside Expert
After receiving an explanation of the facts, we provide advice on whether or not the case constitutes sexual harassment, whether there are any points to be careful about in the investigation of sexual harassment, what disposition is appropriate if the case does constitute sexual harassment, and how to provide an explanation to the parties involved. Receiving oral or written advice from an attorney can reinforce the appropriateness and reasonableness of the disposition. In the event that a lawsuit or other legal action should arise in the future, the company’s claims can be strengthened by submitting our written opinion or progress report as evidence.
Sexual harassment investigations involve extremely sensitive human relationships, and the impartiality of the person in charge of conducting the investigation itself may be called into question, or the investigator may be replaced by a target of complaints from the perpetrator or victim for being unfair. At the request of a company, we may investigate the facts by examining objective records and interviewing the persons involved, and prepare a report on the existence or non-existence of sexual harassment and the appropriate disciplinary measures, and submit it to the company. Having an investigation conducted by a third party ensures objectivity and fairness with regard to the results of the investigation. In addition, since the mere suggestion that sexual harassment has occurred is a sensitive issue that can cause friction within the company, it should be handled only by a limited number of close-mouthed persons in charge, and care should be taken to ensure that the information is not spread outside the company.
Determining the Appropriateness and Reasonableness of Disciplinary Action
Explanation to the parties concerned
If, as a result of a factual investigation such as a hearing, it is determined that there is no fact amounting to sexual harassment, or if it is determined that there is a dispute about the facts but it does not lead to a positive finding of sexual harassment, it is necessary to report the results of the investigation to the complainant and make efforts to obtain the consent of the female employee concerned. The explanation should be given by the director in charge of human resources or the general manager of the general affairs department, but from the standpoint of privacy, it is not desirable to give the explanation to too many people. Conversely, the explanation process should be objective and should be given by more than one person (two or three) so that it can be handled in the event of future disputes over “what was said or not said”. A progress report including the fact-finding and explanation process should be prepared and managed in a manner that prevents leakage to outside parties.
If it is determined that sexual harassment has occurred, disciplinary action against the perpetrator based on the employment regulations will be considered. When taking disciplinary action, we will confirm which provisions of the employment regulations apply and whether the procedures for taking disciplinary action have been followed. Based on the work rules and related regulations, we will provide advice on the appropriateness of the disciplinary action and the procedures to be followed. In relatively minor cases, the disciplinary action may be limited to a caution within the scope of work-related directives, or a caution or warning (disciplinary action) may be issued based on the employment regulations. However, failure to provide an adequate explanation may result in dissatisfaction on the part of the alleged offender employee or lead to the resignation of the offender employee. In some cases, a claim for damages may be filed against the company after the resignation. It is necessary to listen to the rebuttal from the offender and provide an explanation and disposition that is satisfactory to the offender.
Pay reduction, suspension from work, demotion, disciplinary dismissal
If it is determined that the harassment constitutes malicious sexual harassment, the employee may be subject to punishment such as a pay cut, suspension from work, demotion, or disciplinary dismissal based on the provisions of the employment regulations. Because of the extremely serious consequences for the male perpetrator, disciplinary actions must be taken with extreme caution. In the case of disciplinary dismissal, it must also be determined whether severance pay should be provided or not. If the perpetrator is not satisfied with the disciplinary action, he may request to resign or file a suit for damages after resignation. In addition, a lawsuit for status confirmation or a lawsuit for damages may be filed against the disciplinary dismissal on the grounds that the disciplinary dismissal was unjustified.
Handling of lawsuits
We have often represented companies in labor tribunal cases and lawsuits demanding confirmation of status that dispute the appropriateness of disciplinary dismissals. In litigation, in addition to the facts, the appropriateness of the disciplinary action or disciplinary procedure is often disputed. For example, the issue may be whether grounds for disciplinary dismissal not stated in the notice of dismissal are admissible. The company should prepare and keep a detailed progress report based on a time line from the time the damage report was filed. In addition, it is necessary to carefully determine whether the results of hearings with related parties can be submitted as evidence to the court, even in the event of a lawsuit, in order to protect the confidentiality of those who made statements.
Responsibility of the company
Since a company is responsible for managing and supervising its employees as an employer, if sexual harassment or power harassment takes place within the company, the company itself may have an obligation to compensate for damages to those who have suffered as a result. If the fact of sexual harassment or power harassment is confirmed, the company must consider compensation and settlement with the victim.
Maintenance of internal rules and compliance system (Corporate Social Responsibility)
When a claim of sexual harassment is made, it is necessary to review the contents of the employment regulations, establish rules for preventing sexual harassment, create sexual harassment guidelines, and disseminate them to employees in order to improve the workplace environment. Even if the company is sued in a lawsuit, the fact that such efforts are being made will be judged as an advantageous circumstance for the company in the lawsuit. Our firm provides advice on these efforts, including drafting sexual harassment prevention rules and checking their contents.