Distinguishing Guidance from Power Harassment: A Legal View

‘I thought it was guidance,’ ‘I thought it was communication…’

Bosses abuse and hit subordinates… Such easily understandable power harassment is becoming less common in today’s workplaces. However, a number of gray areas have emerged that are difficult for supervisors to discern, such as “I thought it was guidance,” or “I was just trying to communicate with you.

What do leaders need to know in an era when anything can become harassment?　Koji Umezawa, a lawyer who has been consulting with both victims and perpetrators in the field of human resources and labor affairs for 15 years, gives his take on the reality of the gray zone.

Is it wrong to say that “everything that makes me uncomfortable is power harassment”?

The concept of power harassment was first recognized by society in the 1990s. It was around the time when the bubble economy burst and people began to realize that the economy was in recession. Subsequently, the Ministry of Health, Labor and Welfare defined power harassment, and in 2008, the “Power Harassment Prevention Law (Law for the Comprehensive Promotion of Labor Policy)” was enacted. This made it mandatory for companies to take measures to prevent power harassment.

There were no clear rules, but the concept of power harassment gradually came to the surface, and it was only at this point that the concept appeared in the law.

(Koji Umezawa, attorney-at-law, same as below) What is legally defined as power harassment?

The harassment must be based on a superior relationship (with a background of superiority).
The harassment must go beyond the proper scope of the job.
The harassment must cause physical or mental suffering or harm the working environment.

In other words, these three factors are the decisive factors when legally determining whether power harassment is a form of harassment or not, but the general public often views power harassment as a “moral issue.

I think that the common saying on TV that “if the other person feels uncomfortable, it’s harassment” is a moral issue, but I don’t think it makes much sense to focus on that as a problem. It is not realistic to take up the voices of all those who say, “I don’t like it.

There are many people in their 20s and 30s who seem to think that anything that makes them uncomfortable is power harassment, but I think that’s an extreme view.

Looking back over the past 15 years, the legal concept and framework have not changed at all. But in society, a sense of crisis and aversion to harassment is expanding. …… He says he can’t shake the feeling that he has firsthand knowledge of this.

For about 10 years now, I have had the feeling that the level at which people consider this to be harassment has been declining,” he said. I often wonder whether this constitutes power harassment in the legal sense, and in most cases, the victim and the harasser have different perceptions of the facts.

I think it is undeniable that there is a tendency on the victim’s side to perceive things definitively or take things too far out of a sense of disgust or fear of the perpetrator. I also feel that when feelings of victimization become strong, people tend to lose the ability to look at things from multiple perspectives.

A clear example is the alleged power harassment of the governor of Hyogo Prefecture, Umezawa said. In the live broadcasts of the Hyakujo Committee meetings, there were some instances where the word “harassment” seemed to have taken on a life of its own, he said.

For example, “I was complained that I didn’t put my car on the porch,” he said. If there is a porch, they would at least say, ‘Park there,’ wouldn’t they?

The news footage treated the governor’s power harassment as if it were a foregone conclusion, and I frankly thought it was like a modern-day witch trial. I felt that the harassment that people take issue with is more in the moral sense than in the legal sense.

I am also concerned that the notion that ‘if you mention harassment, you can beat the person down’ has become even more prevalent.

Some victims worry that if they file charges, the perpetrator may retaliate in any way, but he has never seen or heard of any such cases.

When it comes to secondary damage, it’s not as if the victims don’t have an image of excessive responses,” he said. For example, they record the company’s response and post it on social networking sites. These days, such actions can easily result in a firestorm. The damage to a company in the event of a firestorm is immeasurable.

Power harassment lawsuits” that make no one happy

Even if a victim wins in a power harassment lawsuit, the amount of compensation is at most 100,000 to 500,000 yen in cases where no actual harm has been done to the victim, and it is not a large amount of compensation.

In addition, the perpetrator will naturally be penalized with disciplinary action within the company for disturbing the order of the company. And even if a settlement is reached, it is highly unlikely that the two parties will be able to thaw out.

Once the issue of harassment has arisen,” he says, “relationships in the workplace are broken and most likely never repaired. In larger workplaces, they may reassign people, but in smaller workplaces, I think it’s more likely that the person who complained of the harassment will quit.”

It seems to me that people who overreact to harassment may quit and then fall back into the same feelings at the next company. ……

Of course, not all of them are like that, but some of them get into harassment trouble, “Of course, not all of them are like that, but some of the people who get into harassment trouble tend to have strong assumptions, are more sensitive than normal people, or have a strong sense of victimhood or entitlement.

In such cases, they may still get into trouble even if they change workplaces. This is just my personal opinion.”

Prevention is the only way to avoid getting into trouble!

Since the Power Harassment Prevention Law, the media, including television, have been all over this issue. It is true that there were many people who were unfairly harassed, and the Power Harassment Prevention Law was probably not wrong in its starting point.

However, Mr. Umezawa is concerned that the recent trend is to mix up victims who suffer from malicious power harassment and those who see power harassment in a moral sense as a problem, making it more difficult to see who should be helped. What will happen to the issue of power harassment in the future?

I think that once the basic concept of power harassment in the legal sense permeates society as a whole, these concerns will subside,” he said.

However, I personally have not felt any sign of such a situation for the past 10 years, and rather the gap between the public trend and the correct understanding seems to be widening. Therefore, I think there is a reasonable possibility that in the future we will probably tighten up even more and become more like a surveillance society.

For example, if you do something wrong, you will be slammed by unrelated people on social networking sites, etc., and you will have to apologize to the public at large. In light of this trend, I think it will become even more important to take precautions and prevent problems before they occur.

Dryly separating the two to make work smoother. Six Preventive Measures” to Remember

As a perpetrator, it is nearly impossible to prove that you did not commit power harassment. Proving that there was no harassment is truly the “devil’s proof.

In this case, the only way to avoid getting into harassment trouble is to take precautionary measures on a daily basis. Finally, we have asked the leadership generation to share some points that they should pay attention to, and we hope you will find them useful.

1_The important thing is to recognize that the workplace is a place to do work.

When you are faced with a problem in dealing with others at work, carefully consider whether what you are about to do is necessary for your work, and furthermore, whether it is common sense to respond based on this necessity. The workplace is where work is done. If the logic that it is necessary for work can be established, and if you are able to explain this to the other party, it is unlikely to be evaluated as harassment unless you do something very strange.

2_Keep in mind that the “love whip” will not work.

It is a thing of the past that people grow more if you tell them to “think for themselves” rather than teach them how to do things by hand. A company is not a place for training. It is a necessary part of the job to provide the necessary information for training. Not daring to convey such information is easily evaluated as an act that is not necessary for business.

3_Don’t take advantage of familiar relationships.

People do not always face the same direction forever. Even if you say “okay” at the time, one day they may think, “Isn’t that still crazy?” and if they think it is and claim that they were treated unfairly, then you are out of the picture.

Also, don’t think, “I don’t have to tell you, don’t I?” Do not think, “I don’t have to tell you. It is important not to assume that the other person and you think the same thing. And treating the person you are uncomfortable with as a tumor is also not a solution to the problem.

4_Communicate without fear

Whether it is a colleague or a subordinate, if you see that the other person seems dissatisfied or anxious about something, you should ask, “What’s wrong with you? What’s wrong with you? It is important to ask without fear. The victim should not assume or assume that the other person’s actions or words are malicious, but if he or she thinks they are unreasonable, he or she should explain specifically why he or she thinks so and then check what the other person thinks.

You can never know what is in another person’s mind, whether inside or outside the workplace, so it is important to communicate by accurately telling the other person what you do not understand or have questions about, whether inside or outside the workplace. That goes for both parties.

5_Think more dryly.

Some bosses do their best to talk about something every day or think of a story based on the day’s events, but you may want to carefully consider whether this is objectively necessary. You don’t have to force someone to eat with you if they don’t want to go. You may consider it “acceptable” to separate the workplace as not a place to build relationships, and to communicate fully to promote work, but to be dry outside of the workplace.

6_Attempt to be as non-pressured as possible.

Not greeting, not returning greetings, speaking too fast, continuing to talk without looking at the other person’s response, interrupting, not responding to what the other person is saying, negative comments from the beginning of the conversation, imposing one’s own values or ideology on the other person. ……
I feel that if these things are repeated, the relationship of trust with the other person is gradually lost and the soil is fostered for a power harassment issue to develop. Be careful.

Koji Umezawa, Representative of Plum General Law Office, Attorney at Law (Member of Daini Tokyo Bar Association), passed the bar exam (formerly the National Bar Examination) in 2006 while a law student at the University of Tokyo, completed the Legal Training and Research Institute of the Supreme Court in 2008, and established Plum General Law Office in 2014. His main practice areas are general labor matters, disputes, and other general corporate legal matters. He is the author of “Harassment no ritei kenkyu to shite no kenkyu” (Correct Knowledge and Response to Harassment) published by Business Education Publications, Inc.

He is also the author of “It’s Power Harassment, Isn’t it? (Diamond Inc.), click here.