News from the EEO Part 2 (American Equal Employment Opportunity Commission)

Friends, as I mentioned at the start of the weekend, I got some good-and-bad news from the Equal Employment Opportunity Commission.

This is matter that the Commission, at their New York office, has had for over 2 years. It involves that big international American company with “International” in the name. I had worked for them during 2008 and 2009, under what was, by law, sei sha’in status. Still, I was told that my role was ending in 2009. Now, I am being told that this was due to a misunderstanding about some other division’s mistake about Japanese labor law.

A determination with “unable to determine” as a reason does not mean no discrimination. It simply means that what the Commission could obtain during its investigation was not enough for them to go forward. This level of evidence is primarily based on other open charges. So what happens is, if you bring a concern to the EEOC, and they open a charge file, the EEOC will periodically review the charge file to see where they want to allocate resources. They refer to this as “charge prioritization procedures”. As explained by EEO,

[t]hese procedures, which are based on a reallocation of the Commission’s staff resources, apply to all open charges in our inventory and call for us to focus our limited resources on those cases that are most likely to result in findings of violations of the laws we enforce.

If I were corporate counsel for a big company, I would then always advise that the big company just seek the maximum time it can get to respond. In the meantime, other charges will present themselves throughout America and the places American-controlled companies do business throughout the world. You, as the big company, simply wait.

Small-fry companies don’t get that luxury, and if you follow EEO’s website, you’ll notice that a lot of the litigation seems to be focused on the mid-sized firms. It’s a shame, because a lot of these smaller companies would probably also like to say that someone made a “mistake” and that there was a further “misunderstanding”. But they don’t get to do that, apparently.

Investigating discrimination is a serious thing, and the civil rights laws are very important. So I appreciate that, yes, the EEO’s got limited resources, and, yes, they have to rebalance. With my charge, it was very easy for the big company to throw out jurisdictional objections first. Then, seek an extraordinary amount of extra time to come up with an answer that, frankly, could have been given at the start of 2009, or even late 2008.

Some people ask me if I feel like a sucker of sorts for taking the EEOC seriously. No, I am proud to have taken EEOC seriously in its mission. Remember, this is an administrative agency, not a court. (Court comes later.) The EEO did not blow me off. They sought a position statement from the Respondent (i.e. the big company), and then allowed me a rebuttal. They took my rebuttal seriously.

From the determination letter:

[You] provided clear evidence that your contract with [“A Corp”,] was modified to remove the specific term-limitation on your employment. You further explained details of Japanese labor laws, indicating your [“A Corp”] contract was not valid under these labor laws because of the contract’s ambiguity, violation of overtime compensation policies, and other issues of Japanese labor law. [Note: this is the part how you must have a valid labor contract in Japan, under the 2008 Labor Contracts Law, otherwise you are sei sha’in.]

I did hand the Commission a wealth of information about Japan labor law. In particular, emphasizing that there is no “at will” employment in Japan.

More from the determination letter:

While your rebuttal makes distinctions about Japanese labor law, these distinctions were not relevant to determining if your treatment was discriminatory.

That part was a bit of an “ouch!” If you separated out a defined, protected group in America and sought to pay them less than minimum wage, I think the distinction that there is a minimum wage would be highly relevant. But anyway.

The fact that [A Corp.] created an invalid contract would not be discriminatory in itself; rather, the Commission examined whether your treatment was different because of your . . . national origin. In the evidence you provided, it was clear that [A Corp.] was willing to modify the existing term-limited contract only because it was under the impression that you could be fired at will, i.e. that you were not a permanent employee under the modified contract.

So, what we call in the law a “unilateral mistake”. What really surprises me–finding this out now–is that A Corp. had been doing business in Japan for 20 years. The sense anyone would have is that A Corp. would know tons more about Japanese labor law than me. I mean, you’re doing business in a country, hiring people, etc. I’m not–I’m the employee. Who could fathom that a company doing business in a locale for years would not know the local labor law?

Finally from the letter:

As [A Corp.] did not believe you to be nor treat you as a permanent employee, [Note: that’s a bit of a stretch], IBM Japan continued your employment under the same terms, as with all other employees.

So there is a unilateral mistake, and IBM Japan simply carried over the mistake, as a misunderstanding. This is what? “The foreigners in the one subsidiary made a unilateral mistake, and we, the other Japanese unit, really didn’t understand that the mistake was there.” (I think the reality was that IBM Japan had reason to know there was a mistake and wanted to look the other way—as I have some evidence for that, too, from April 2008.)

Remember, my blog is not legal advice, and specifically not tailor-made legal advice. Let me just point out, though, what are some of the takeaways from this experience:

1) If you are an American, you should know that American civil rights laws apply to our employment relations with American-controlled subsidiaries in Japan; additionally, with any American, employing people through a corporation or not, doing business in Japan. The test for the EEOC is an example in their regulations called “Tangoods”.

2) If you sense that you are being discriminated against, you must go to the EEOC first if you want the protections of U.S. employment civil rights laws. Otherwise, you have to rely on the Japan’s own laws, which, as you know, are dead letter with regard to us. (I guess take your pick: big runaround or dead letter.)

3) You only have a certain amount of time to file an administrative charge with EEOC. This [limit] is at minimum 180 days after the alleged discriminatory act, or 300 days in a state with a corresponding state employment civil rights statute.

4) You really should, at the outset, add some information to show how your employer is a “controlled” entity of an American or an American parent. This is a term of art, so you have to do your research. I think it’s important because it can cut down on some of the wasted time that the Respondent will create by saying they aren’t one.

5) Document and have your facts. What you’re going to find, is that the truth of the situation, as what you think the other side understands, is going to start bending and twisting into something other than what you think it is. You are bringing a matter to, essentially, an uninterested third party. I don’t mean disinterested. I mean uninterested. The other side is simply going to say whatever they have to, you know? Then, it will change again.

5) Be ready for the “Japan Oops!” Even though, pre-filing, you will make your good faith attempt to get the people you work with to fix the problem–and they will simply say “sorry, sorry, sorry”–don’t be surprised that 2 1/2 years later, they suddenly decide there has been some miscommunication after all!

6) Don’t be surprised about slander. The slander knives are going to be unsheathed. You are simply giving voice to the idea that there is equal protection under the law. If no one stands up for the rule of law, guess what happens to the rule of law? I am particularly concerned as an attorney, when I get people telling me I shouldn’t stand up for the rule of law, or suggesting I shouldn’t. I’m really not certain what to conclude about that, because the conclusions are really scary.

It’s disappointing not to get the result you want, but it’s also a bit about what kind of world do you want to live in. In the blogging community here, we know there are some serious problems in Japan. The water just isn’t hitting our backs with these—a lot of disenfranchised Japanese get hit, too. But still, we are getting hit.

Thanks for reading.