Sexual Harassment and the Corporation in Australia and Japan: The Potential for Corporate Governance of Human Rights
| Published date | 01 September 2000 |
| Author | Leon Wolff,Christine Parker |
| Date | 01 September 2000 |
| DOI | 10.22145/flr.28.3.6 |
| Subject Matter | Article |
SEXUAL
HARASSMENT
AND
THE
CORPORATION
IN
AUSTRALIA
AND
JAPAN:
THE
POTENTIAL
FOR
CORPORATE
GOVERNANCE
OF
HUMAN
RIGHTS
Christine
Parker*
and
Leon
Wolff*
INTRODUCTION
Corporations
are
undergoing
a
subtle
transformation.
Usually
regarded
as
investment
vehicles
for
shareholders,
corporations
are
now
assuming
an
additional
identity-as
entities
which share responsibility
for
upholding
human
rights.
2
This
new
identity
does
not
sit
comfortably
with
conventional
wisdom
on
corporate governance.
Traditional corporate
governance
theory,
based
on
nineteenth century notions
of
trust,
posits
that
'the
company'
is
a
legal
entity
embodying
the
members
from time
to
time.
3
Directors,
as
trustees
of
corporate
assets,
owe
duties
to
foster the
interests
of
the
shareholders
by
maximising
their
investments.
4
Under
this
view, directors
do
not
owe
wider
obligations
to
society.
This
traditional
understanding,
however,
is
beginning
to
yield
to
more
recent
legal
and
social
pressures.
Legal
developments
in
regulatory
practice,
in
combination
with
an
upsurge
in
social
movement
activism,
is
now
forcing
corporations
to
accept
that
they
are
more
than
mere
economic
entities.
5
They
are
also
private 'governments
'6-
BA
(Hons),
_LB
(Hons),
PhD.
Senior
Lecturer,
Law
Faculty,
University
of
New South
Wales.
Christine
Parker
would
like to
thank
Simson
Chu
for
diligent
research
assistance,
and
Angus
Corbett
for
insightful discussions.
BA
(lions),
MAJIT,
LLB
(Hons),
LLM,
NAATI.
Admitted
as
a
Legal
Practitioner
to
the
Supreme
Court
of
New
South
Wales.
Lecturer,
Faculty
of
Law;
Research
Fellow,
Australia-
Japan
Research
Centre,
The
Australian
National
University.
Leon
Wolff
would
like
to
thank
Professor
Shozo
Yamada of Chuo
University
for
his
helpful
comments
on
earlier
versions
of
this
article.
1
M
Friedman,
"A
Friedman
Doctrine-The
Social
Responsibility
of
Business
is
to
Increase
its
Profits"
New
York
Times
13
September
1970
at
32.
M
Friedman,
Capitaisin
and
Freedom
(1962)
at
133.
2
B
Frey,
"The Legal
and
Ethical
Responsibilities
of
Transnational
Corporations
in
the
Protection of
International
Human
Rights"
(1997)
7
MinnJGlobal
Trade
153.
3 I
Trethowan,
"Director's
Personal
Liability
to
Creditors
for
Company
Debts"
(1992)
20
ABLJ
41
at
43.
4
Ibid
at
41.
5
Neo-institutionalism
in
economics
also sees
the
corporation
as
more
than
an
economic
entity.
For
an economic
theory
of
the
corporation
that
also sees
the
corporation
as
a
Federal
Law
Review
social
and
political
entities
with
the ability
to
exercise
general
powers
over
themselves
and,
more
importantly,
over
others.
7
As Selznick
points
out, "management
and
governance
coexist
and interact.
An
organization
that
tries
to
be
instrumentally
single-
minded, guided
wholly
by
norms
of
purposive
rationality,
nonetheless
finds
itself
faced
with
more
comprehensive
obligations.
' 8
Corporations
are
increasingly
acknowledging
these
broader
social
responsibilities
9
(including
those
relating
to
human
rights).
But
should
corporations play
a
part
in
upholding
human
rights?
And,
if
so,
how
can
corporations
be
effective
in
this
role?
In
this
article,
we
apply
a
comparative
lens
to
answer
these
questions.
We
focus
on
one
area
of
human
rights-the
right
to
work
in a
workplace
free
of
sexual
harassment-and
contrast
the
experiences
of
Australian
and
Japanese
corporations
in
assuming
responsibility
for
sexual
harassment.
By
so
doing,
we
aim
to
identify
the
conditions
in
which
corporate governance
might
be
an
effective
way
of
advancing
human
rights
within
the
corporation.
Our
choice
of
case
study
is
deliberate.
To
work
in
an
environment
free
of
sexual
harassment
is
an
inviolable
human
right.'
0
The
Vienna
Declaration
prepared
by
the
1993
World
Conference
on
Human
Rights'i
made
this
clear
when
it
characterised
sexual
harassment
as
a
human
rights
violation
"incompatible
with
the
dignity
and
worth
of
the
human
person".
12
Similar
reasoning
is
entrenched
in
most
modern
legal
systems.
In
Australia,
for
example,
sexual
harassment
is
specified
as sex
discrimination;
13
in
Japan,
sexual
harassment
is
regarded
as
an
unlawful
interference
with the "personal rights"
of
women.
14
political
entity,
see
the
team
production
theory
of
M
Blair
and
L
Stout,
"A
Team
Production
Theory of
Corporate
Law"
(1999)
The
Journal
of
Corporate Law
751.
6
For
example,
A
Jay,
Management
and
Machiavelli:
Power
and
Authority
in
Business
Life
(1987);
R
Dahl,
"A
Prelude
to
Corporate
Reform"
(1972)
Business
and
Society Review
17;
J
Parkinson,
Corporate
Power
and
Responsibility:
Issues
in
the
7heory
of
Company Law
(1993).
7
Sometimes
corporations
can
exercise
power
over
people
who
did not
even
choose
to
enter
into
a
contractual
(or
property)
relationship with
the
company
or had
little
bargaining
power
in
doing
so.
8
P
Selznick,
The
Moral
Commonwealth
(1992)
at
291.
9
Since
the
1960s,
academics
have
debated
the
social
responsibility
of
corporations.
Y
Miwa,
"Corporate
Social
Responsibility:
Dangerous
and
Harmful, Though
Maybe
Not Irrelevant"
(1999)
84
Cornell
L
Rev
1227.
This
debate continues
today.
See
"Symposium
Transcript:
Corporate
Social
Responsibility:
Paradigm
or
Paradox?"
(1999) 84
CornellL
Rev
1282.
10
The
right
to
work
or
study
in
an
environment
free
of
sexual
harassment
is
usually
regarded
as
part
of
the
human
rights of
women.
See
E
Defeis,
"The
Role
of
International
Law
in
the
Twenty-First
Century: Women's
Human
Rights:
The
Twenty
First
Century"
(1995)
18
Fordhamn
Int'l
L]
1748
at
1748-9.
The
main
reason
sexual
harassment
is
regarded
as
an
abuse
of
the
human
rights
of
women
is
that
an
overwhehning
majority
of
victims
are
women.
For
the
situation
in
Japan,
for
example,
see
A
Okuyama,
Shokuba
ni
Okeru
Sekushuaru
liarasumento
[Sexual
H1arassment
in
the
Workplace]
(1999)
at
9-13.
11
Vienna Declaration
and
Programme
of
Action,
1993
World
Conference
on
Human
Rights,
U.N.
Doc.
A/Conf.
157/24
(1993),
32
I.L.M.
1661
(1993)
at
pt 1,
para.
18.
12
E
Defeis,
above n
10
at
1748-9.
13
J
Morgan,
"Sexual
Harassment
and the
Public/Private
Dichotomy: Equality,
Morality
and
Mariners"
in
M
Thornton
(ed),
Public
and
Private:
Feminist
Legal
Debates
(1995) 89
at
91.
14
See,
for
example,
the
Fukuoka
Sexual
Harassment
case,
Judgment
of
16
April
1992,
Fukuoka
District
Court,
(1992)
783
Hanrei
Taimuzu
60.
Volume
28
Sexual
Harassment
and
the
Corporation
Our
approach
to
our
case
study,
however,
is
unusual.
Although
our
approach
is
apparently
comparative
(in
the sense
that
we
seek
to
contrast
the
regulatory
responses
to
sexual
harassment
in
Australia
and
Japan),
our
article
is
not
'classic
15
comparative
law.
True
comparative
law,
Reitz
asserts, "involves
explicit
comparison
of
aspects
of
two
or
more
legal
systems".
16
In
this
article,
however, our
aim
is
to
develop-and
test
-a
model
for
the
successful
corporate governance
of
human
rights.
We
use
the
available
data
on
Australian
and
Japanese
sexual
harassment
law and
practice
to this
end.
Our
method,
therefore,
is
not
to
compare
the
different
regulatory
regimes
in
Australia
and
Japan
with
each
othe; but
rather
with
our
working
model
of
corporate
governance.
To
the extent
that
this
approach
confuses,
irritates
or
offends
traditional
comparativists,
we
make
no
apologies.
Our
own
'spin'
on
comparative
methodology
helps
us
in
our
objective
to
advance corporate governance
theory.
By
utilising the
experiences
of
both
Australian
and
Japanese
corporations,
we
believe
we
can
provide
a
more
nuanced picture
of
the
possibilities
and
pitfalls
in
entrusting
corporations
with
human
rights
issues.
Thus, we
will
show
that,
in
Australia,
a
combination
of sexual
harassment
law and
publicity
about
breaches
of
the
law
appears
to
have
achieved
some
modest
success
in
giving
anti-discrimination
rights
an impact
on
corporate
governments.
This
serves
as
a
useful
starting
point
from
which
to
develop
a
working
model
on
the
effective
intra-
corporate
management
of
sexual
harassment.
However,
when
we
apply
this model
to
the
position
in
Japan,
we
observe some
disadvantages
to
relying
on
corporate
governance
to
regulate
sexual
harassment.
This
leads us
to
the
view
that
corporate
governance
of
sexual
harassment
issues
specifically
(and
of
human
rights
issues
more
generally)
is
possible-but
only
if
there
is
strong
public consciousness
of
the
existence
of
the
relevant
right,
an
influential
and
ongoing
social
movement
supporting
it,
and
a
strong
legal
regime
holding individuals
and
companies
accountable
for
breaches.
In
the first
part
of
this
article,
we explore the
legal
and
social
undercurrents
in
Australia
and
Japan which
are
encouraging corporations
to
embrace
broader
social
responsibilities.
We
trace
the
divergent
paths
that
Australian
and
Japanese
companies
and
their
management
are
taking
towards
a
new
culture
of
'corporate
citizenship'.'
7 In
the second
part,
we
turn
to
our
case
study
-----
sexual
harassment
----
and
its
regulation
within
Australian
corporations.
We
note
how
large
Australian
companies
have
adopted
sexual
harassment
policies
with
some
modest
successes,
and
uncover
the
legal
and
social
conditions
that
have
led
to
these
results.
By
combining this
with
scholarly
research
and
theory
on
business
regulation,
we
propose
a
model
for
determining
when
corporate governance
of
sexual
harassment
is
likely
to
be
effective.
In
the
third
part,
we
test this
model
by
reference
to
the
experience
of
sexual
harassment
in
Japan,
a
1
What
amounts
to
comparative
law
is
a
debate
with widely
divergent
views.
As
Demleitner
correctly observes,
there
is
an
"apparent
lack
of
a
common
core
or
a
common
purpose
of
comparative
law".
N
Demleitner,
"Challenge,
Opportunity
and
Risk:
An
Era
of Change
in
Comparative
Law"
(1998)
46
AmJCornpL
647
at
651.
16
J
Reitz,
"How
to Do
Comparative
Law"
(1998) 46
AmJ
Comp
L
617
at
618.
As
Reitz
observes,
this
apparently
obvious
statement
is
not
without
controversy.
Some,
for
example,
argue
that
comparative
law
may
also
be
"implicitly"
comparative.
See
D
Foote,
"The
Roles
of
Comparative
Law"
(1999)
73
Wash
L
Rev
25
at
26.
17
In
Japan, 'corporate citizenship'
has
entered
the
Japanese
language
as
the
foreign
loan
expression
c5por~to
shichizunshippu.
See
Jiyfa
Kokuminsha
(ed),
1992
Nenhan no
Gendai
Yago
no
Kiso
Chishiki
[Basic
Facts
about
Contemporary
Terms
(1992
Edition)]
(1992)
at
1198.
2000
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