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Fūkibinran. Now that is a Japanese
expression you don’t see around much these days. I bet many young Japanese
readers don’t even know how to read the four kanji that make up this word: 風紀紊乱. It means
something akin to “an affront to public morality,” “a breakdown in customary
discipline” or, perhaps, “compromising love relations.” But there are simpler
and more direct ways to render this expression in English — how about
“adultery,” “cheating” or “having multiple partners”?
In 1996, actor
Junichi Ishida found himself embroiled in a scandal due to his illicit affair
with a young model. At one point he tried to fend off the paparazzi pestering
him with the following comments: “You don’t hesitate to denigrate adultery, yet
the bitter sadness and sweetness of secret love are themes in works of great
literature and art. They have long been a source of the highest culture.”
This
comment incurred the scorn of the media, as journalists accused him of trying
to justify adultery by claiming that adultery
is culture. It also cost the actor many important roles, making him
a pariah in the entertainment world for several years until he managed to
rebound.
Today
Ishida uses the phrase “Adultery is culture” as a self-mocking trope on TV. He
made an odd reference to it during a demonstration last month outside the Diet
building against the security bills enabling Japan’s Self-Defense Forces to
more easily engage in combat overseas. During a speech on Sept. 17, he said,
“War is not culture,” to thunderous applause and
laughter. Odd that such a touchy subject could be used simultaneously in
lighthearted jest and about a subject that is literally dead serious. Also odd
considering that if one supposes that adultery is a part of literature, arts
and our very culture, then surely war is too.
My point is that
the joke falls flat if you take Ishida’s original comment to its logical
conclusion: that because a phenomenon can be found in a novel or painting, this
makes it something we should tolerate or even desire. Picasso’s “The Rape of
the Sabine Women” and “Guernica” are great works of art, but that doesn’t mean
we should embrace rape and war.
Be that as it
may, despite the phrase above having become little more than a punch line, and
for good or ill, our society continues to see adultery as an evil. Perhaps to a
lesser degree, but an evil all the same.
At this point
you might ask, dear reader, what all this has to do with Labor Pains. Well, in
fact, many courts have been asked to answer the question of whether adultery is
grounds for firing an employee.
The Osaka
District Court ruled on Aug. 10, 1990, that a high school teacher, with a wife
and children at home, had betrayed the high moral standards expected of his
position when he became intimate with a female student. Such a dismissal may be
understandable to many considering that the student was a minor when their
relationship began, although the relationship apparently only became physical
after she graduated.
Adultery
that occurs between two employees of the same company is a different matter
than “regular adultery,” in that many corporations have written into their shūgyō kisoku work rules a prohibition of any
behavior that “disturbs or might disturb internal order or morality,” and
violations often incur disciplinary action.
Asahikawa
District Court ruled on Dec. 27, 1989, in a case involving a woman who was
fired for committing adultery with a male employee who was married with
children. Note that the married man was notfired,
only the single woman who entered into a physical relationship with him. In
fact, the company asked the man to convince her to resign. When that failed,
management tried to convince her to leave. When that too failed, they issued
her a pink slip, yet no slip of any color to the married male employee who
actually broke his vows. (I suppose we should remember that this was the late
1980s, before equal opportunity was enshrined in law. Too early to come back to
the future yet, though.)
She sued the
company, Shigeki Kosetsubi, for reinstatement. The court ruled that adultery
was, “except under extraordinary circumstances, deplorable behavior that was
also illegal with respect to the wife.” The verdict noted, however, that the
rule prohibiting “disturbing internal order or morality” can be used as grounds
for disciplinary action only when there is indeed provable and specific
disturbance. In other words, adultery may or may not disturb internal order and
morality and, in this case, it did not. The court ordered her reinstatement and
the payment of all back wages.
Naturally, intimate
relationships between two people entail situations that are known directly only
to the participants themselves, so many cases involve making judgments about
questions of fact. Such cases include allegations of rape, sexual harassment or
similar acts that are contested between the two parties. If the court decides
that no rape or sexual harassment occurred, then any disciplinary action based
on such an act is invalid. If the court determines such acts did take place,
then the perpetrator could be in for more than simply losing their job.
For adultery to
be ruled to have “disturbed internal order and morality,” it would need to
involve something like multiple visits by the spouse to the workplace, creating
scenes each time. Another possibility is if the company’s reputation or other
intangible assets are damaged. Such details and specific damage are necessary
before an employer may invoke such work-rule prohibitions.
It
is rare for an employee to be disciplined for committing adultery with someone
who does not also work at the company. Rarer still
do courts uphold such discipline. But one such rare case was handled by Osaka
District Court. A permanent instructor at Osaka Jogakuin University was fired
for getting pregnant while unwed. A married man was the father.
An unwed
pregnancy is “not good for a professional teacher in that it has an adverse
impact on students with respect to the education policy (of the school),” the
court said in its ruling in 1981. “It cannot be excused by the claim that it is
simply a private matter, so the dismissal is valid.” What adverse impact on
students? The court explained that the teacher had violated educational
morality and greatly lowered the dignity of the school.
One of the most
famous cases of dismissal due to adultery involved a married-with-kids 40-year-old
tour bus driver who managed to seduce a newly hired 18-year-old bus tour guide.
KM Tourism fired him based on a clearly stipulated prohibition against drivers
becoming romantically involved with guides. He sued to get his job back.
Tokyo District
Court ruled on May 27, 1988, that the dismissal was valid because he was
married. For unknown reasons, the man did not appeal the ruling, but he sued in
the same court a second time, this time for damages, claiming the first verdict
was itself invalid. Tokyo District Court again ruled that the dismissal was
valid, so no damages.
Next, the man
appealed the second decision to the Tokyo High Court, which on Feb. 28, 1995,
awarded him ¥7 million in damages for his pain and suffering — an extraordinary
amount considering how paltry such awards tend to be in Japan. The court was
unable to order his reinstatement, since the 1988 verdict still stood, but it
did say that he had suffered an inordinate amount of public humiliation for
being wrongly fired for adultery. And he had been devastated financially, even
forced to borrow from a friend to pay his mortgage.
Although it took
him eight years, the man was finally vindicated, at least by the courts.
In the bus
driver’s case, two different court processes produced opposite results —
another sign of how abstract and subjective morality and social norms can be.
This
concept of social norms — shakai
tsūnen — is a crucial
element of Japanese law, particularly labor law. It is hard to see what social
norms are at any given time or specific set of circumstances. It seems safe to
say that judges are forced to make a decision that is necessarily subjective
and personal, although lawyers tend to wish it were otherwise.
“Shakai tsūnen
is a malleable phrase of great convenience, in that it can be interpreted in
myriad ways,” says attorney Shoichi Ibuski (full disclosure, the retained
lawyer of Tozen Union). “I want judges to stop using this phrase to push their
idiosyncratic personal beliefs on society. They should consider the common values
of the actual workplace instead.”
With the
increase in women at the workplace, it seems that the opportunities for
workplace romance (including adultery) are on the rise. While companies and
their work rules may regard such relationships from the perspective of
maintaining corporate order and morality, workers also have rights to freedom
and privacy. Intrusive investigations into harmless affairs could — under
certain circumstances, and in my personal opinion — constitute sexual
harassment of the parties involved.
