2014.10.23

2012 (Ju) 2231

Minshu Vol. 68, No. 8

Judgment concerning whether or not the measure taken by an employer to demote a woman worker upon transferring her to light activities during pregnancy constitutes treatment that is prohibited under Article 9, paragraph (3) of the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment

Case to seek a declaratory judgment on the status

Judgment of the First Petty Bench, quashed and remanded

Hiroshima High Court, Judgment of July 19, 2012

The measure taken by an employer to demote a woman worker upon transferring her to light activities during pregnancy in accordance with Article 65, paragraph (3) of the Labor Standards Act, in principle, constitutes treatment that is prohibited under Article 9, paragraph (3) of the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment; however, if reasonable grounds exist to objectively find that the woman worker consented to demotion of her own free will, or if the employer had difficulties in transferring the woman worker to light activities without taking a measure to demote her due to the operational necessity such as ensuring smooth business operations or securing proper staffing, and there are special circumstances due to which said measure is not found to be substantially contrary to the purpose and objective of said paragraph, said measure does not constitute treatment that is prohibited under said paragraph.
(There is a concurring opinion.)

Article 9, paragraph (3) of the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment, Article 2-2, item (vi) of the Ordinance for Enforcement of the Act on Ensuring Equal Opportunities for and Treatment of Men and Women in Employment, Article 65, paragraph (3) of the Labor Standards Act
Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment
Article 9　
(3)　Employers shall not dismiss or give disadvantageous treatment to women workers by reason of pregnancy, childbirth, or for requesting absence from work as prescribed in Article 65, paragraph 1, of the Labor Standards Act (Act No. 49 of 1947) or having taken absence from work as prescribed in the same Article, paragraph 1 or 2, of the same act, or by other reasons relating to pregnancy, childbirth as provided by Ordinance of the Ministry of Health, Labor and Welfare.

Ordinance for Enforcement of the Act on Ensuring Equal Opportunities for and Treatment of Men and Women in Employment
Article 2-2　
Reasons relating to pregnancy or childbirth provided by Ordinance of the Ministry of Health, Labour and Welfare provided for in Article 9, paragraph (3) of the Act shall be as follows:
(vi)　Making a request as stipulated in Article 65, paragraph (3) of the Labour Standards Act or having been transferred to other light activities pursuant to the provisions of the same paragraph;

Labor Standards Act
(Before and After Childbirth)
Article 65　
(3)　In the event that a pregnant woman has so requested, an Employer shall transfer her to other light activities.

The judgment in prior instance is quashed.
The case is remanded to the Hiroshima High Court.

Concerning the reasons for petition for acceptance of final appeal argued by the appeal counsel, SHIMONAKA Nami and SUZUKI Taisuke (except for those excluded)
1. The appellant of final appeal, who is a physical therapist and who was employed by the appellee of final appeal and previously held the post of deputy chief, alleged against the appellee that she was dismissed as the deputy chief when she was transferred to other light activities during her pregnancy in accordance with Article 65, paragraph (3) of the Labor Standards Act, and was not appointed as the deputy chief even after finishing childcare leave, and hence the measure taken by the appellee to dismiss the appellant as the deputy chief is in violation of Article 9, paragraph (3) of the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (hereinafter referred to as the "Equal Employment Opportunity Act") and therefore void, and accordingly, the appellant sought against the appellee the payment of allowances for managerial post (deputy chief) as well as damages in default or tort.

2. The outline of the facts legally determined by the court of prior instance is as follows.
(1) The appellee is a consumer cooperative engaged in business including healthcare services, and it operates multiple medical institutions including Hospital A (hereinafter referred to as the "Hospital").
On March 21, 1994, the appellant concluded with the appellee a labor contract without a fixed term to engage in physical therapy services as a physical therapist, and was assigned to the physical therapy department of the Hospital (the department's name was subsequently changed to the "rehabilitation department"; hereinafter referred to as the "rehabilitation department" throughout the period before and after the name change).
(2) Subsequently, after working at a clinic and other places, the appellant was assigned to the rehabilitation department again on December 1, 2003. At that time, the physical therapists who belonged to the rehabilitation department, except for the manager of the department, were supposed to be assigned either to the team for providing rehabilitation services by vising patients' homes (hereinafter this team is referred to as the "home-visit rehabilitation team" and the services provided thereby are referred to as the "home-visit rehabilitation services") or the team for providing rehabilitation services at the Hospital (hereinafter this team is referred to as the "in-hospital rehabilitation team" and the services provided thereby are referred to as the "in-hospital rehabilitation services"), and the appellant was assigned to the home-visit rehabilitation team.
(3) On April 16, 2004, the appellant was transferred from the home-visit rehabilitation team to the in-hospital rehabilitation team, and she was appointed as the deputy chief of the rehabilitation department and was given a role to coordinate the in-hospital rehabilitation services.
The appellant became pregnant with her first child around that time, and on February 12, 2006, she returned to work from maternity leave before and after childbirth and childcare leave, and she was transferred from the in-hospital rehabilitation team to the home-visit rehabilitation team and was given a role to coordinate the home-visit rehabilitation services as the deputy chief.
(4) On July 1, 2007, the appellee transferred the home-visit rehabilitation services, which are included in the services provided by the rehabilitation department, to the home-visit care facility B operated by the appellee (hereinafter referred to as "Facility B"), and on the occasion of this transfer of services, the appellant's post was changed from the deputy chief at the rehabilitation department to the deputy chief at Facility B.
(5) In February 2008, the appellant became pregnant with her second child. She made a request to be transferred to light activities in accordance with Article 65, paragraph (3) of the Labor Standards Act, seeking to be engaged, after the transfer, in the in-hospital rehabilitation services, which were considered to require less physical burden than the home-visit rehabilitation services. In response, in order to transfer the appellant to light activities as she so requested, the appellee transferred the appellant from Facility B to the rehabilitation department on March 1, 2008. At that time, at the rehabilitation department, a staff member whose career as a physical therapist was longer than the appellant by three years was engaged in playing a role to coordinate the in-hospital rehabilitation services as the chief.
(6) Around mid-March 2008, the appellee explained to the appellant, via the director of the administrative office of the Hospital, that the appellee had forgotten to issue a notice to dismiss the appellant as the deputy chief on the occasion of the transfer mentioned in (5) above due to a procedural error. After that, the appellee explained this to the appellant again via the director of the rehabilitation department, and obtained the appellant's consent at that moment, although given unwillingly, to be dismissed as the deputy chief.
Around that time, the appellant expressed her wish to the director of the appellee's administrative office for care services that she would be dismissed as the deputy chief retrospectively as of March 1, 2008, the date of her transfer to the rehabilitation department, because, if she was dismissed as the deputy chief as of April 1, 2008, other staff members would think that she was demoted by reason that she had made mistakes at work.
Against the abovementioned background, on April 2, 2008, the appellee issued a notice to the appellant to transfer her to the rehabilitation department and dismiss her as the deputy chief as of March 1, 2008 (hereinafter this measure taken by the appellee to dismiss the appellant as the deputy chief is referred to as the "Measure").
(7) The appellant took maternity leave before and after child birth during the period from September 1 to December 7, 2008, and took childcare leave during the period from December 8, 2008, to October 11, 2009.
The appellee asked the appellant, via the director of the rehabilitation department, about her request concerning her return to work, and on October 12, 2009, the appellee transferred the appellant, who returned to work from childcare leave, from the rehabilitation department to Facility B. At that time, at Facility B, a staff member whose career as a physical therapist was shorter than the appellant by six years had been appointed as the deputy chief soon after the Measure was taken and was engaged in playing a role to coordinate the home-visit rehabilitation services. For this reason, the appellant was not reappointed as the deputy chief and was supposed to work under said staff member from that time onward. When the appellant was asked about her request as mentioned above, she was notified by the appellee that she would not be appointed as the deputy chief even after she returned to work from childcare leave. The appellant was dissatisfied with such treatment and strongly protested against it, and finally she filed this action.
(8) The appellee has the "Regulations on Managerial Duties," which provide for the duties, authority, responsibility, and appointment and dismissal of the managers assigned to the sections and departments of the hospitals, clinics and other facilities operated by the appellee. The scope of managers covered by these regulations is specified as including those in the post of the section director, department director, division director, head nurse, head doctor, chief or deputy chief. Furthermore, the appellee's employees were paid the basic salary as determined according to the type of job, work experience, academic background, length of service and other factors, and also paid various types of allowances such as allowances for dependents and allowances for managerial posts. The amount of allowance for a managerial post is determined according to the job title, and the amount to be paid to the deputy chief was set as 9,500 yen per month.

3. Given the facts mentioned above, the court of prior instance dismissed all of the appellant's claims. The determination of the court of prior instance is as summarized below.
The Measure was taken after obtaining the appellant's consent and within the bounds of the appellee's discretion due to the necessity in its staffing. This is not the case where the appellee went beyond the bounds of its discretion and treated the appellant in a manner as prohibited under Article 9, paragraph (3) of the Equal Employment Opportunity Act only on the grounds of the appellant's request to be transferred to light activities because of her pregnancy, and thus the Measure cannot be judged to be in violation of said paragraph and therefore void.

4. However, we cannot affirm the determination of the court of prior instance mentioned above, on the following grounds.
(1) A. The purposes of the Equal Employment Opportunity Act are to promote securing equal opportunity and treatment between men and women in employment and to promote measures, among others, to ensure the health of women workers with regard to employment during pregnancy and after childbirth (Article 1). Under the basic principle of enabling women workers to engage in full working lives, with due respect for motherhood (Article 2), said Act prohibits dismissing or giving disadvantageous treatment to women workers by reason of pregnancy, childbirth, requesting maternity leave before childbirth, taking maternity leave before and after childbirth, or by other reasons relating to pregnancy or childbirth as provided by Ordinance of the Ministry of Health, Labour and Welfare (Article 9, paragraph (3)). In accordance with the provisions of said paragraph, Article 2-2, item (vi) of the Ordinance for Enforcement of the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment, sets forth transfer to other light activities pursuant to the provisions of Article 65, paragraph (3) of the Labor Standards Act (hereinafter referred to as "transfer to light activities") as one of such "reasons relating to pregnancy or childbirth."
In light of the language, purposes, etc. of the provisions of the Equal Employment Opportunity Act as mentioned above, it is appropriate to construe that the provisions of Article 9, paragraph (3) of said Act have been established as mandatory provisions for prohibiting employers from taking such measures as against the abovementioned purposes and basic principle in order to achieve such purposes and principle, and hence if an employer dismisses or gives disadvantageous treatment to a woman worker by reason of her pregnancy, childbirth, requesting maternity leave before childbirth, taking maternity leave before and after childbirth, transfer to light activities or by other reasons, such treatment is in violation of said paragraph, and therefore should be judged to be illegal and void.
B. In general, demotion is a treatment that would have a disadvantageous effect on workers. In light of the purposes and basic principle of the Equal Employment Opportunity Act as provided in Articles 1 and 2 thereof, as well as the purpose and objective for which the regulations under Article 9, paragraph (3) of said Act have been set in place, the measure taken by an employer to demote a woman worker by reason of her transfer to light activities during pregnancy can be considered, as a rule, to constitute the treatment that is prohibited under said paragraph. However, it is appropriate to construe that, in light of, inter alia, the content and degree of the advantageous effect or disadvantageous effect that the transfer to light activities and said measure taken by the employer would have on the woman worker, the content of the employer's explanation on said measure and other related developments, and the woman worker's wishes, if reasonable grounds exist to objectively find that the woman worker has consented to demotion of her own free will, or if the employer had difficulties in transferring the woman worker without taking the measure to demote her due to operational necessity such as ensuring smooth business operations or securing proper staffing, and there are special circumstances due to which, in light of the content and degree of such operational necessity and the content and degree of the abovementioned advantageous or disadvantageous effect, said measure is not found to be substantially contrary to the purpose and objective of said paragraph, said measure does not constitute treatment that is prohibited under said paragraph.
The existence or absence of the abovementioned reasonable grounds regarding the woman worker's consent should be determined by taking into consideration, in the course of assessing the content and degree of the abovementioned advantageous or disadvantageous effect, such matters as the substance of the duties assigned to the woman worker before and after said measure is taken, the content and degree of the operational burden on the woman worker, and the details of her working conditions, and from the perspective of whether or not the woman worker could have decided whether to consent or refuse said measure after receiving from the employer and fully understanding an appropriate explanation on the effect of said measure. In addition, the existence or absence of the abovementioned special circumstances should be determined by taking into consideration, in the course of assessing whether or not there was any operational necessity as mentioned above and the content and degree thereof, such matters as the nature and content of the operations assigned to the woman worker after the transfer, the operational organization and system at the woman worker's workplace and the state of staffing after the transfer, and the woman worker's knowledge and experience, and also by taking into consideration, in the course of assessing the content and degree of the abovementioned advantageous or disadvantageous effect, such matters as the developments that led up to said measure and the woman worker's wishes.
This reasoning may also apply to the public notice issued under Article 10 of the Equal Employment Opportunity Act, under the title of "Guidelines on Ways for Employers to Take Appropriate Measures with Regard to Items Stipulated in the Provisions concerning the Prohibition of Discrimination against Workers on the Basis of Sex, etc." (Public Notice of the Ministry of Health, Labour and Welfare No. 614 of 2006), IV. 3 (2), which sets forth demotion as an example of treatment that could constitute treatment that is prohibited under Article 9, paragraph (3) of said Act.
(2) A. This reasoning can be applied in this case as follows. When the appellant was transferred from Facility B to the rehabilitation department in order to be transferred to light activities during pregnancy, she was demoted, by way of the Measure, from the deputy chief, which is a managerial post, to a non-managerial staff member. Although after said transfer, the appellant was released from the burden of visiting patients' homes, it is unclear whether or not there was any change in the burden of the rehabilitation services themselves imposed on the appellant before and after the transfer, and moreover, the substance of the managerial duties assigned to the chief or deputy chief at the rehabilitation department is also uncertain. Consequently, it is unclear whether or not and to what extent the operational burden on the appellant has successfully been reduced directly due to her being dismissed as the deputy chief, and thus it cannot be said that the content and degree of the advantageous effect that the transfer to light activities and the Measure had on the appellant have been made clear.
On the other hand, the Measure had a disadvantage effect on the appellant in terms of treatment, in that it resulted in changing her job title from the deputy chief, which is a managerial post that she had assumed after ten years of service, to a non-managerial staff member, and it also had a disadvantage effect on the appellant in terms of remuneration, in that she ceased to be entitled to an allowance for managerial post.
As mentioned in 2. (7) above, even after she returned to work from childcare leave, the appellant has been unable to be reinstated in the post of deputy chief and forced to work as a non-managerial staff member under the other staff member, who was promoted to deputy chief soon after the Measure was taken. In view of these developments as described above, we must say that it is appropriate to consider the demotion by way of the Measure not as a temporary measure effected during the period of the transfer to light activities, but as a measure effected without expecting the appellant's reinstatement in the post of deputy chief even after the expiration of said period.
Despite that, there is no evidence in records that when the appellant was notified by the appellee via the director of the rehabilitation department, etc. that she would be dismissed as the deputy chief, she was given any explanation as to matters including the possibility of her reinstatement in the post of deputy chief when returning to work from childcare leave. When the appellant was asked about her request concerning her return to work, she was notified that she would not be appointed as the deputy chief even after her return to work. The appellant was dissatisfied with such treatment and strongly protested against it, and finally she filed this action.
In view of the circumstances mentioned above, while the content and degree of the advantageous effect that the transfer to light activities and the Measure had on the appellant are unclear, the content and degree of the disadvantageous effect that the Measure had on the appellant were of substantial nature, as represented by the loss of the status of and allowance for a managerial post, and moreover, the demotion by way of the Measure should inevitably be considered to be a measure effected without expecting the appellant's reinstatement in the post of deputy chief even after the expiration of the period of the transfer to light activities, and in this respect, it was against the appellant's wishes. And yet, there is no evidence that the appellant was given any explanation as to matters including the possibility of her reinstatement in the post of deputy chief when returning to work from childcare leave, and the appellant, at the time when the Measure was taken, only unwillingly consented to be dismissed as the deputy chief after receiving what was only an insufficient explanation on the effect of the Measure as mentioned in 2. (6) above, without an opportunity to know beforehand matters including the possibility of her reinstatement in the post of deputy chief when returning to work from childcare leave. Thus, it cannot be said that the appellant could have decided whether to consent to or refuse the Measure after receiving from the employer and fully understanding an appropriate explanation on the effect of said measure, and hence it cannot be said that reasonable grounds exist to objectively find that the appellant has consented to demotion of her own free will, as mentioned in (1) B. above.
B. Furthermore, as mentioned above, the appellant was demoted by way of the Measure from the post of deputy chief, which is a managerial post, to a non-managerial staff member, when she was transferred from Facility B to the rehabilitation department in order to be transferred to light activities during pregnancy. Such matters as the substance of the managerial duties assigned to the chief or deputy chief at the rehabilitation department, who is given a role to coordinate the services at said department, as well as the operational organization and system of the rehabilitation department, are uncertain. Supposing that the appellant were given a role to coordinate the services at the rehabilitation department, using her knowledge and experience as a physical therapist and serving as the deputy chief to work with and assist the chief, it is unclear whether or not and to what extent difficulties would arise in the appellee's operation of business. Therefore, it cannot be said that, with regard to the measure taken to dismiss the appellant as the deputy chief upon the transfer to light activities, whether or not there was any operational necessity on the part of the appellee, as well as the content and degree thereof, have been sufficiently made clear.
Thus, in this case, such matters as whether or not the appellee had difficulties in transferring the appellant to light activities without taking the measure to demote her due to operational necessity are unclear, and such matters as whether or not the operational burden on the appellant has successfully been reduced by way of the Measure are also uncertain as mentioned above, whereas the content and degree of the disadvantageous effect that the Measure had on the appellant were of substantial nature, as represented by the loss of the status of and allowance for a managerial post, and moreover, the demotion by way of the Measure should inevitably be considered to be a measure effected without expecting the appellant's reinstatement in the post of deputy chief even after the expiration of the period of the transfer to light activities, and in this respect, it was against the appellant's wishes. In view of these, it must be said that the special circumstances due to which the Measure is not found to be substantially contrary to the purpose and objective of Article 9, paragraph (3) of the Equal Employment Opportunity Act as mentioned in (1) B. above cannot be recognized unless such matters as whether or not there are any circumstances that form the basis of the content and degree of the operational necessity on the part of the appellee and the content and degree of the reduction in the operational burden on the appellant are made clear. Without fully reviewing and examining these points and thereby making determination as to whether or not the abovementioned special circumstances exist, the court of prior instance held that the Measure does not constitute treatment that is prohibited under Article 9, paragraph (3) of the Equal Employment Opportunity Act immediately, only on the basis of the circumstances presented thereby, and thus the determination of the court of prior instance is illegal due to the erroneous interpretation and application of laws and regulations as a result of the insufficient examination.

5. For the reasons stated above, the determination of the court of prior instance contains violation of laws and regulations that apparently affects the judgment. The appeal counsel's arguments are well-grounded in this meaning, and the judgment in prior instance should inevitably be quashed. The case should be remanded to the court of prior instance in order to have it further examine the abovementioned points.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices. There is a concurring opinion by Justice SAKURAI Ryuko.

The concurring opinion by Justice SAKURAI Ryuko is as follows.
Whether or not the Measure taken by reason of the appellant's request to be transferred to light activities during pregnancy violates Article 9, paragraph (3) of the Equal Employment Opportunity Act should be determined in the manner as explained in the court opinion, with which I am in agreement. During the proceedings in the first and second instances, whether or not the assignment of the appellant after her return to work from childcare leave, among others, violates said paragraph, etc. was disputed between the parties and adjudicated by the lower courts. This issue is regarded as an alternative cause of action and therefore is not included in the scope of decision by this court, but considering that it is alleged as one of the reasons for petition for acceptance of final appeal, I would like to give some comments on this issue by way of precaution.
1. According to the facts found by the court of prior instance, the appellee did not reinstate the appellant in the post of deputy chief even after she returned to work from childcare leave on October 12, 2009. With regard to this measure (hereinafter referred to as "Measure 2"), the court of prior instance pointed out as follows: there were only a few choices of workplace for the appellant to return to, because, for example, two physical therapists said that they would leave if the appellant were assigned to their workplace, and finally, Facility B, where the appellant had worked before the transfer to light activities, was chosen as the workplace for her to return to; at Facility B, another physical therapist had already been assigned as the deputy chief, and thus there was no need to appoint the appellant as the deputy chief at said facility; and therefore, Measure 2 does not violate the Equal Employment Opportunity Act, etc., nor doses it constitute an abuse of the appellee's power over personnel affairs.

2. However, I must say that the court of prior instance cannot be considered to have made determination on Measure 2 after fully examining the relevant facts, on the following grounds.
(1) The Act on the Welfare of Workers Who Take Care of Children or Other Family Members Including Child Care and Family Care Leave (hereinafter referred to as the "Childcare and Family Care Leave Act") aims to ensure continuing employment of workers who take care of children or family members and help balance their work life and family life through such steps as establishing systems for childcare leave, nursing care leave, etc. (Article 1). To this end, it prohibits dismissing or otherwise treating a worker disadvantageously by reason of said worker's making a childcare leave application or taking childcare leave (Article 10).
The provisions of Article 10 of said Act should be understood as mandatory provisions for the same reason as that presented by the court opinion in relation to Article 9, paragraph (3) of the Equal Employment Opportunity Act, and also based on the same reasoning, it can be understood that in general, demotion constitutes a disadvantageous treatment that is prohibited under said provisions.
In this case, the appellant took maternity leave before and after childbirth and continuously took childcare leave after having been dismissed as the deputy chief upon being transferred to light activities during pregnancy. Therefore, there could be an argument that the measure not to appoint the appellant as the deputy chief after she returned to work from childcare leave does not constitute demotion and it does not constitute disadvantageous treatment. However, considering that it is clear by law that the transfer to light activities is a temporary measure effected only during pregnancy, whether or not the assignment of the appellant after her return to work from childcare leave constitutes demotion and therefore should be regarded as a disadvantageous treatment should be determined not in comparison with the job title assigned to the appellant after the transfer to light activities during pregnancy, but in comparison with the job title, etc. assigned to her before the transfer to light activities. This is clear from the purpose and objective of Article 10 of the Childcare and Family Care Leave Act.
In this case, the court in charge of the remanded trial is to adjudicate again on the appropriateness of the Measure, which is relevant to the primary cause of action. At the same time, apart from whether or not it is necessary to adjudicate on the appropriateness of Measure 2, which is relevant to the alternative cause of action, I must say that the court in charge of the remanded trial should carefully examine whether or not Measure 2 constitutes disadvantageous treatment that is prohibited under Article 10 of the Childcare and Family Care Leave Act, based on the premise that Measure 2 constitutes demotion.
(2) According to the reasoning presented by the court opinion in relation to Article 9, paragraph (3) of the Equal Employment Opportunity Act, it is not denied, as a general rule, that if the assignment of a woman worker after her return to work from childcare leave is effected due to operational necessity such as ensuring smooth business operations or securing proper staffing, and there are special circumstances due to which the content and degree of such necessity are not found to be substantially contrary to the purpose and objective of Article 10 of the Childcare and Family Care Leave Act, it is possible to consider that such assignment does not constitute disadvantageous treatment that is prohibited under said Article.
In the process of determining the existence or absence of the abovementioned special circumstances, it is also necessary, as explained above, to examine this point while taking into consideration, inter alia, the nature and content of the operations assigned to the woman worker, the operational organization and system at the woman worker's workplace and the state of staffing after the assignment, and the worker's knowledge and experience.
(3) In particular, Articles 21 and 22 of the Childcare and Family Care Leave Act provide that an employer must endeavor to specify in advance the assignments and other working conditions expected after taking childcare leave and make them known to workers, and that for the purpose of smooth implementation of employment of workers after taking childcare leave, an employer must also endeavor to take necessary measures with regard to assignments and other employment management of workers at the place of business where they are employed. The operational guidelines for these provisions (Public Notice of the Ministry of Health, Labour and Welfare No. 460 of 2004; prior to the revision by Public Notice of the Ministry of Health, Labour and Welfare No. 509 of 2009) further require that consideration be given to assignments and other employment management of other workers on the premise that it is a common practice that workers who take childcare leave are reinstated in the previous post or a post equivalent to the previous post in principle. Examination should be made while fully taking into consideration the purposes and objectives of the provisions of these related laws and regulations. Measures required under these laws and regulations concern the core of the system for providing a workplace environment where workers can easily take childcare leave, while assuring the effectiveness of law, and this can be achieved by making coordination between the reality of personnel management at companies, etc. and the protection of workers who take childcare leave, based on the recognition that workers taking childcare leave are absent from work for a considerable period of time.
In this case, since it was obvious that the appellant took childcare leave with a view to returning to work, the appellee should have decided in advance which job the appellant would be assigned to after returning to work and clearly notified her of such expected assignment, while conducting employment management of other workers on the premise of such assignment. In this respect, it is not found, as mentioned in the court opinion, that the appellant was given an appropriate explanation before taking childcare leave with regard to her assignment after returning to work, and what is more, soon after the Measure was taken, a physical therapist junior to the appellant was appointed as and assigned to the post of the deputy chief, which the appellant had assumed before the transfer to light activities, and solely for this reason, the appellant was not appointed as the deputy chief even after returning to work after childcare leave. It must be said that these affairs may give a strong motivation to deny the existence of the special circumstances mentioned in (2) above.

3. It goes without saying that, since the appellant took maternity leave before and after childbirth before taking childcare leave, if Measure 2 is found to constitute disadvantageous treatment that is prohibited under Article 10 of the Childcare and Family Care Leave Act, it would also violate Article 9, paragraph (3) of the Equal Employment Opportunity Act, which prohibits giving a disadvantageous treatment by reason of taking maternity leave before and after childbirth.

Justice SAKURAI Ryuko
Justice KANETSUKI Seishi
Justice YOKOTA Tomoyuki
Justice SHIRAKI Yu
Justice YAMAURA Yoshiki