Distinguishing Guidance from Power Harassment: A Legal View

“I thought it was guidance,” “I intended it as communication”

In modern workplaces, overt examples of power harassment, like a boss verbally abusing or physically assaulting a subordinate, have become less common. However, there are still many grey areas where bosses may think, “I thought it was guidance” or “I intended it as communication,” making it difficult to determine what is acceptable.

In an era where almost anything can be considered harassment, what should leaders know? We asked Koji Umezawa, a lawyer who has been advising both victims and perpetrators in the human resources and labor field for 15 years, about the reality of these grey areas.

Is Everything that makes me uncomfortable is power harassment wrong?

The concept of power harassment began to be recognized in society in the 1990s, around the time when the bubble burst and people began to feel the effects of the economic downturn. Later, the Ministry of Health, Labour and Welfare defined power harassment, and in 2020, the “Power Harassment Prevention Act” (Labor Measures Comprehensive Promotion Law) was enacted. This made it mandatory for companies to take preventive measures against power harassment.

“There wasn’t a clear set of rules, but it gradually came to the surface, and this is where the concept of power harassment first appeared legally” (Attorney Koji Umezawa, hereinafter the same).

So, what specifically is defined as power harassment in legal terms? It must meet all three of the following criteria:

• It must be carried out based on a superior-subordinate relationship (with an underlying sense of superiority). 

• It must exceed the scope of appropriate business conduct. 

• It must cause physical or mental pain or harm the working environment.

In other words, when legally judging whether something is power harassment, these three elements are key. However, in general society, power harassment is often seen as an ethical issue.

“The common phrase on TV, ‘If the other person feels uncomfortable, it’s harassment,’ is more of an ethical perspective. But I don’t think it’s particularly meaningful to focus too much on that issue. It’s not realistic to address every complaint from someone saying, ‘I don’t like it.’

Among people in their 20s and 30s, it seems that many perceive anything that makes me uncomfortable is power harassment. But I think that’s an extreme way of thinking.”

An easy-to-understand example, according to Umezawa, is the power harassment allegation against the governor of Hyogo Prefecture. He mentioned that there were instances during the live broadcast of the investigative committee where the term harassment seemed to take on a life of its own.

“For example, there was a complaint about not parking the car at the designated drop-off point. If there’s a designated spot, wouldn’t you just say park here?

In the news footage, it was presented as if it were a given that the governor had committed power harassment, which frankly felt like a modern-day witch trial. I felt that the harassment the public was concerned about was more rooted in moral significance than its legal definition.

Additionally, I am concerned that the idea that if you mention harassment, you can take down the other person has become more widespread.”

Some victims are worried that if they make an accusation, they don’t know what kind of retaliation they might face from the perpetrator, but Umezawa mentioned that he has never encountered such cases.

“When it comes to secondary damage, I can’t deny that there is an image of victims overreacting. For example, recording a company’s response and posting it on social media. In recent times, doing something like this can easily lead to a scandal. The damage to the company when a scandal erupts is immeasurable.”

Power Harassment Lawsuits Where No One Wins

Even if the victim wins a power harassment lawsuit, if there is no actual harm to the victim, the compensation is typically only around 10 to 50 thousand yen, and it is not a significant amount.

Additionally, the perpetrator will face disciplinary action within the company for disrupting its order, which is a separate penalty. Even if a settlement is reached, the chances of reconciliation between the parties are very low.

“If a harassment issue arises, the relationships at the workplace are usually damaged and cannot be repaired. In larger workplaces, they may relocate people, but in smaller workplaces, the person who reported the harassment often ends up quitting.”

Those who overreact to harassment may feel the same way at the next company they join…

“Of course, not all cases are like that, but among those who get caught up in harassment troubles, there are tendencies to be overly sensitive, have a strong victim mentality or a strong sense of entitlement, or have a tendency to be very emotional compared to others.

In such cases, even if they change workplaces, they may end up getting involved in similar troubles. This is just my personal impression.”

The best way to avoid getting involved in troubles is through prevention!

Since the implementation of the Anti-Power Harassment Law, the media, including television, has widely covered this issue. Indeed, many people have suffered from unfair harassment, and the Anti-Power Harassment Law was not wrong at its inception.

However, according to lawyer Koji Umezawa, the current trend has blurred the lines between victims of severe power harassment and those who consider moral issues as harassment, making it harder to identify who truly needs support. What will happen to power harassment issues in the future?

“I believe that once the basic concept of legal power harassment becomes more ingrained in society, these concerns will calm down,” Umezawa says.

“However, personally, I haven’t felt any indication of that happening over the past 10 years. Instead, the gap between public trends and correct understanding seems to be widening. Therefore, moving forward, it’s likely that there will be stricter measures, and the possibility of a surveillance society becoming a reality is quite high.

For instance, if something goes wrong, people can be mercilessly attacked by unrelated individuals on social media, followed by a public apology to society. Given this trend, I think prevention and caution before issues arise will become even more important in the future.”

Work smoothly with a dry, clear-cut approach. Six preventive measures to remember.

It is nearly impossible for an aggressor to prove that they have not engaged in workplace harassment. Proving that something did not happen is truly akin to the “proof of the devil.”

Therefore, to avoid getting involved in harassment disputes, it is essential to take preventative measures consistently. Finally, here are some points that leaders should be mindful of, which I hope you will find useful.

1＿The importance of the mindset that the workplace is for work.

When dealing with someone in the workplace, consider whether what you are about to do is necessary for work, and whether your response is reasonable based on that necessity. The workplace is for work. If you can establish the logic that your actions are necessary for work and are able to clearly explain that to the other person, it is unlikely to be seen as harassment, as long as you don’t do something truly inappropriate.

 

2＿Whip of love will not work

It’s no longer the case that leaving them to figure it out on their own will help them grow. A company is not a training ground. Providing necessary information during training is an essential part of the job. Deliberately withholding this information may easily be seen as an action not necessary for the job.

3＿Do not rely on a complacent relationship

People do not always think in the same direction. Even if someone says it’s fine at the time, one day they may think, “Isn’t this strange?” and claim that they were treated unfairly. At that point, it will be too late.

Also, don’t assume that they should know without me saying anything. It’s important not to assume that the other person is thinking the same thing as you. Furthermore, treating someone as a sensitive issue just because you’re uncomfortable with them doesn’t solve the problem, so that should also be avoided.

4＿Don’t be afraid to communicate

Whether they are a colleague or subordinate, if you notice that someone seems unhappy or anxious, it is important to ask, “What’s wrong? What don’t you like?” without fear. On the other hand, victims should not jump to conclusions or assumptions about the other person’s actions or words. If you feel something is unreasonable, explain the specific reasons and check how the other person views the situation.

Whether inside or outside the workplace, you can never fully understand what’s in someone else’s mind. Therefore, it’s crucial to communicate clearly about what you don’t know or what you’re unsure about, both in and out of the workplace. This applies to both parties.

5＿Think more dryly

Some managers try hard to initiate conversations daily or discuss the events of the day. However, it might be wise to consider whether this is objectively necessary. It’s okay not to force someone who doesn’t want to join you for a meal. If you detach yourself from the idea that the workplace is a place to build personal relationships, you can still communicate effectively to get the work done, but it’s also okay to take a more dry approach outside the workplace.

6＿Try to avoid putting pressure on others

Not greeting, not responding to greetings, speaking too quickly, talking without considering the other person’s reactions, interrupting, showing no reaction to what the other person says, starting a conversation with negative statements, or imposing your own values and beliefs on others. If such behaviors are repeated, trust between you and the other person will gradually erode, and it could create a foundation for power harassment problems. Be mindful of this.

Koji Umezawa is the representative of Plum General Legal Corporation and a lawyer (member of the Dai-ni Tokyo Bar Association). In 2006, while attending the University of Tokyo’s Faculty of Law, he passed the old version of the bar exam. In 2008, he completed training at the Supreme Court of Japan’s Judicial Training Institute. In 2014, he established Plum General Legal Corporation. His main areas of practice include labor law, dispute resolution, and general corporate legal consultation. He is also the author of “The Correct Knowledge and Response to Harassment” (Business Education Publisher).

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