Recent Legislations in Japan (Labor Law)
Prohibition of Discrimination against Persons with Disabilities in Employment
Professor Mutsuko ASAKURA
(Research Staff, Waseda Law School)
(on 1 October 2014)
In June 2013, the Act on the Elimination of Discrimination against Persons with Disabilities (“the Disabilities Discrimination Act”) was enacted to prohibit disability-based discrimination, and in January of the following year, Japan ratified the U.N. Convention on the Rights of Persons with Disabilities. Close to the same time, the Act on Employment Promotion, etc. of Persons with Disabilities (“the Disabled Employment Promotion Act”) was revised. The former Disabilities Discrimination Act obligates a wide range of public bodies and private enterprises to eliminate discrimination based on disabilities, but it is stipulated that with regard to private enterprises as the position of employer, such action must comply with the provisions of the Disabled Employment Promotion Act (Article 13). This paper summarizes the revisions to the Disabled Employment Promotion Act.
The Disabled Employment Promotion Act has, to date, obligated public bodies and private sectors to comply with quotas for the employment of persons with disabilities so that they would hire specified numbers of disabled persons. Its revision added provisions prohibiting employers from discriminating against persons with disabilities. Now, an employer must provide equal opportunities to persons with disabilities when hiring employees (Article 34), and after hiring, must not unduly discriminate with regard to wages, education and training, welfare, and so on (Article 35). The specific kinds of actions that are prohibited as discriminatory are stipulated by guidelines (Article 36, paragraph 1).
The revised Act not only prohibits discrimination against persons with disabilities, it also obligates employers to provide reasonable accommodation. In brief, to provide disabled persons with equitable opportunities and treatment, and to improve conditions that would prevent them from displaying their capabilities, an employer must provide facilities that consider the characteristics of the disabilities, arrange assistants, and take other necessary measures both at the time of recruitment and hiring, and after hiring (Articles 36-2 and 36-3). Such measures are assumed to include  providing facilities and equipment,  personal support, and  workplace management. However, an exemption is made in cases where these measures place an “excessive burden on a business owner” (provisos to Articles 36-2 and 36-3). A judgment of “excessive burden” accounts for a company’s scale and field of business, the state of the company’s finances and economic support, etc. The types of measures to be taken are specified in guidelines (Article 36-5). On June 6, 2014, the Ministry of Health, Labor, and Welfare published the Report of the Research Committee on Appropriate Guidelines, which will be enacted in the future.
In order to achieve the compliance of employers with these new provisions prohibiting discrimination and obligating reasonable accommodation, the law authorizes the Ministry to provide advice, guidance, and recommendations to employers (Article 36-6). In addition, in response to a petition from parties in a dispute, the director general of a prefectural labor bureau may provide necessary advice, guidance, and recommendations (Article 74-6) or have a dispute resolution and reconciliation committee mediate the dispute (Article 74-7).
As Japan’s first law expressly prohibiting discrimination against persons with disabilities, its effectiveness is being closely watched by the public.