You’re Too Old For That: Age Discrimination in Japan Tech
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Amanda Narumi Fujii
You’ve got the skills and the drive for the job, but how old are you again? Age matters. We all know it. The trick is knowing what you’re up against, why these obstacles persist, who might be able to help, and how far you may be required to shift your perspective from where it currently lies.
To make sense of things, we called upon a willing set of lawyers, recruiters, education professionals, and one brave HR leader to get to the bottom of what is, for most, as rabbit hole of a topic here in Japan. We’ll cover the law, certain challenges specific to mid-career transitions, what recruiters and HR pros see out there in the wild, and if not working for someone else might be the best way to avoid age discrimination and bias altogether. First, cue the lawyers.
Double Trouble: Japan’s Major Labor Laws, and making sense of what doesn’t make sense
“There are no laws which specifically address age discrimination.”
We could almost stop here.
Because, this terse statement from one of Japan’s “Big Four” law firms, Anderson Mōri & Tomotsune, really does tell us everything we need to know. Being succinct, however, tends to prompt questions.
To address some of those questions, we’ll be referring to two specific laws: the Labor Standards Act (herinafter, the LSA), and The Act on Comprehensively Advancing Labor Measures, and Stabilizing the Employment of Workers, and Enriching Workers’ Vocational Lives (hereinafter, the ”Employment Measures Act”), specifically, Article 9.
Are Japan’s labor laws in conflict with one another?
If getting through the heft of any one single law weren’t enough of a challenge for intrepid legal sleuths, balancing the weight of two, understanding their interplay (and making sense of what is actually being said) is akin to a fool’s errand. Wishing to avoid such folly, we knocked on the door of Christopher Rathbone, adjunct professor at Temple University, Tokyo and foreign associate at City-Yuwa Partners for a bit of guidance.
In helping us cut through decades of legal revisions and shifting nomenclature, Rathbone first had us zero in on two things: general laws and special laws. Within Japan’s complicated hierarchical grab-bag of laws relating to labor, these distinctions help inform as to where to look when we sense a discrepancy. Here’s Rathbone:
The LSA could be considered to have the status of a general law in Japan, meaning its provisions are intended to address employment matters widely [emphasis added]. Because general laws are broadly constructed, special laws later enacted are designed to address more specific topics. When discrepancies arise between the two, the special law will take precedence.
With the 1947 LSA acting as the general law, our special law (enacted in 1966) for the purpose of this argument, then, is the Employment Measures Act. Now, let’s get to understanding what these two laws actually say.
What do Japanese labor laws actually say about age discrimination?
We learned at the outset the LSA doesn’t contain language related to age discrimination.
Article 9 of the Employment Measures Act (last updated as Act No. 102 of 2019), known by it’s rather lengthy “popular name:” Ensuring Equal Opportunities Regardless of Age in Recruitment and Hiring, however, does appear at face value to address this concern. But how accurate is that assessment? Article 9 says:
When it is found necessary, as prescribed by Order of the Ministry of Health, Labour and Welfare, in order for workers to make effective use of their abilities, an employer must provide workers with equal opportunities in recruitment and hiring, regardless of their age, pursuant to the provisions of Order of the Ministry of Health, Labour and Welfare.
Rathbone: “Article 9 of the Employment Measures Act is designed to ‘promote rather than punish.’ That is to say, the Employment Measures Act is intended to improve the labor market, particularly in avoiding labor shortages, by directing companies to hire the elderly and thus encourage the elderly to participate in the workforce.”
Here, it’s important to note Rathbone’s use of the word elderly. It’s intentional and reflective of the law’s intent because…, if—with near universality—elderly is defined as 65 and older, this law is designed with that population in mind.
Promote rather than punish is additionally instructive. Again, Rathbone: “The Employment Measures Act pronounces the aims of the government, but only for the purposes of encouragement.” In layman’s terms, the non-coercive: “carrot, not a stick.”
Michihiro Nishi, partner at Clifford Chance, explains further: “It is illegal to request new hires be of a certain age unless certain exceptions are met, under the Equal Measures Act. However, currently there are no criminal penalties for a breach of such obligations by employers; it is possible, though, that administrative actions may be taken (such as the issuance of a corrective order).”
The impact of such corrective orders, however, which run the gamut from removing a firm’s ability to place want ads with Hello Work, to simply “naming and shaming” offending businesses, as one might gather, can have limited affect. The larger and more familiar the name, the more significant the impact, of course, but for some firms, the public mention of misdeeds can in unique cases serve as a temporary boon to business as was seen when some pachinko parlors chose to remain open during the coronavirus pandemic.
The vertiginous calliope ride of interpretive legal language
One of the most frequently cited miffs you’ll hear from recruiters operating within the Japan market is that they receive persistent requests from employers to source job candidates only within a certain age range.
We wanted to understand the legitimacy of such requests through the lens of Japanese law, so we went back a second time to Clifford Chance’s Nishi via email for further clarity. Our question and his response are provided below in full.
[TokyoDev] People believe when an employer requests a candidate be within a certain age range (whether in writing, or verbally) that such a request is illegal, or against Japanese labor law. Can, in fact, such instances be considered “illegal” or “against Japanese labor law” given allowable exemptions under the 2007 amendment to the Employment Measures Act, and the fundamental absence of any law which addresses age discrimination?
[Michiro Nishi] There are no general, overarching or comprehensive statutes that address age discrimination. However, there are some statutes that address age discrimination in some specific situation/circumstances. At the hiring stage, the Employment Measures Act generally prohibits to request new hires be of a certain age unless certain exceptions are met. It is true that these exceptions are relatively wide. The answer to your question is, therefore, it depends. In light of the structure of the statutes, it is generally illegal or against Japanese law, but it is not illegal if any one of the exceptions are met. It is not always illegal, but it is not always legal either.
The idea that labor law appears duty bound to confound the average layperson, is not of course, unique to Japan; the law everywhere is difficult to parse. Here in Japan, phrasing such as “freedom to hire,” “objectively reasonable grounds,” and “appropriate in general societal terms,” set the stage for an incredibly wide interpretive berth, and when paired with the “six justifiable reasons for age limits” under the revision to the 2007 Equal Measures Act (p 61), the law can appear to mute even the softest attempt at promoting equal opportunity. It’s enough to weaken the resolve of even the staunchest supporters of equal opportunity when it comes to age.
This complexity, however, is—for legal scholars like Timothy Endicott, former first dean of the Oxford Faculty of law—precisely as it should be. He writes in Vagueness in Law, that “vagueness is a feature of law, and not merely of legal language: the linguistic and non-linguistic resources of the law are commonly vague,” arguing “the pursuit of justice and the rule of law do not depend on the idea that the requirements of the law are determinate in all cases. The resolution of unresolved disputes is an important and independent duty of judges—a duty that is itself an essential component of the ideal of the rule of law.”
But, for those of us not interested in situating ourselves in a courtroom, or pouring over legal texts and ruminating over the philosophy of law, how can we make sense of this juxtaposition between the law appearing to be in support of the employee, while at the same time appearing to wholly be in support of the employer? How can we level things out? Here, City-Yuwa Partners’ Rathbone makes things rather simple for us, and references the concept of noblesse oblige; retold, and known to all fans of Spiderman as: “with great power comes great responsibility.”
When viewed positively (as is the connotation here), noblesse oblige speaks to the balancing act required when the possession of power and authority blends with the need to operate in the public sphere. Rathbone provides us with a glance as to how this plays out in the law. “The Japanese judiciary aims to protect the worker primarily [emphasis added]—not based on worker rights—but because the worker is the weaker party in the employment relationship and so needs protection; at the same time the judiciary maintains a deference towards the freedom of companies in making decisions.”
Indeed, says Nishi, “The basis of jurisprudence is the reconciliation of conflicting interests,” and “this is precisely the balance that must be struck between the free activity of business and the protection of workers.” He goes on to say that, “In order to have flexibility in the application of laws and regulations, it is inevitable to make the rules somewhat ambiguous by using broad concepts such as ‘reasonable grounds’ or ‘appropriate in general societal terms.’”
Which…, brings us back to square one and Anderson Mōri & Tomotsune’s: “There are no laws which specifically address age discrimination.”
A cramped opportunity to litigate
Bias and discrimination are notoriously difficult cases to litigate. Most tend to be less than explicit (an important factor when it comes to the law), and the challenges prosecutors face can be daunting—even with the most egregious of crimes. As such, age discrimination cases infrequently make their way to the courts—particularly as they relate to hiring.
“Pursuing discrimination in hiring has grounds in the Civil Code,” says City-Yuwa Partners’ Rathbone, “but even in the U.S., where age discrimination is expressly prohibited, establishing that discrimination has occurred is difficult.”
Ascertaining explicit bias aside, three additional reasons also create complexity: the judiciary’s focus on dismissal, the overall difficulty in litigating dismissal, and the lack of damages awarded. This trio of obstacles can prompt a more pragmatic course of action says Rathbone. “Arguing that letting someone go was not a valid dismissal (i.e., lacking objectively reasonable grounds and not appropriate in general societal terms) would carry more weight than specifically asserting age discrimination,” he suggests.
Nishi echoes this sentiment. “A certain number of the dismissal invalidation suits may in fact include age discrimination as one of the hidden issues,” adding: “as a legal formality, such lawsuits may be in the form of contesting the abuse of the right to dismiss, etc.”
Suits related to hiring continue to be less prominent in part because as Rathbone puts it, “dismissals are highly restricted in any case (without invoking age discrimination), and there are no clear legal grounds for asserting age discrimination in hiring. As well, Japan has no discovery system, so proving discrimination in hiring is difficult unless the employers specifically mentions to the candidate age as a reason for refusing to hire.”
On damages, Clifford Chance’s Nishi says simply that “in Japan, the amount of damages awarded by the courts tends to be much lower than in the U.S. or other developed countries,” and “therefore, with the exception of lawsuits for invalidation of dismissal, there may indeed be fewer court cases based on age discrimination,” as a result.
Is change afoot? What the law of the future looks like in Japan
What should we expect as we edge toward tomorrow? For now, it appears as though we’re in for (mostly) more of the same. Rathbone sums up two related changes coming April 1st, 2024, namely: “Employers will have to give notice if they intend to limit renewals of fixed-term contracts at the time of conclusion of a fixed-term contract or when renewing a fixed-term contract. As well, employers will have to give notice that a fixed-term contract can be converted to an indefinite term contract after 5 years of renewals (currently the law, but not part of the notice of working conditions).” We asked Clifford Chance’s Nishi the same question. This was his response:
The Japanese government has been studying the systems of other countries and has been debating for years whether to create a law that directly prohibits age discrimination, but no legislation has been enacted so far, and I think this is unlikely to change at least in the next several years. With an aging society as a backdrop, incorporating the elderly into the workforce is an important social issue, and discriminatory treatment on the basis of age without reasonable grounds is likely to be subject to more stringent scrutiny going forward.
So, that’s the law. Up next, the things you wish you knew (or, perhaps… didn’t) when it comes to all that talk about you that goes on behind your back. Because being seen as “old” is not so far off from wherever you are in age at this very moment.
What They Say When We’re Not in the Same Room
How do employers in Japan handle age bias?
Ageism in Japan? As with anything, it depends on who you ask. We couldn’t poll all recruiters in Japan, but we were able to grab three of the best: Glen Brewster at Exec-Search Partners, Jordan Jarjoura at Meshd, and David Sweet at FocusCore. We asked each to help us understand obstacles candidates might face now, as well as those that are sure to pile up as one’s life-clock continues to tick. Which, ageism aside, is actually a pretty darn good thing.
Dancing through culture
“Age has cultural complications in Japan,” says Jarjoura, reminding us quite adeptly of the obvious. Dōki (同期), he says is illustrative. Dōki, if you’re not familiar with the term, identifies two or more people who begin their time within a company in tandem. Let’s say, we have two dōki; one is 40, the other 25. Outside Japan, this would be nothing to sweat. In Japan, however, such age disparity might cause some consternation. Not everywhere, but in enough places to matter. “Here, we have an expectation to treat someone older not as a peer, but as their senpai,” says Jarjoura, and “though logical, thinking about age can put bias in the head.”
Sweet, whose firm FocusCore specializes in retained recruitment for foreign firms operating in Japan, sees the same thing. “Rarely do companies want a subordinate older than a manager,” he told us matter-of-factly. Some companies say they want someone ‘younger’ to help make the company a bit younger, so they can train someone up” he says, but “in reality, what’s implied is 1.) ‘we don’t want to pay much for this position, so let’s hire someone younger’ and 2.) ‘older people are stuck in their ways and more trouble.’”
This sort of bias is, of course, certainly not unique to Japan; it may, however, be more up-front-and-center. Brewster tells us, “a candidate may be fully qualified—meeting to the letter the job requirements—but because of their age, rejected out of hand as a matter of balance for the team. There is a lot of quick glance rejection,” he says.
Brewster’s take on this is intriguing—one might even say, warm. To him, “Japan wears its heart on its sleeve—they say what they want; younger recruiters don’t always like that.” It’s a position that, in land where the individual is widely believed to be overly reserved in opinion, may be worth pondering… might there be room for the appreciation of such candor? Personally, I find the idea ripe for honest debate. Bring it up next time at your favorite tachinomiya, why don’t you? It’ll no doubt make for an interesting and contentious evening out.
Provocation aside, no matter how valuable being candid may be, no one wants to have someone decide their fate without the ability to rise and defend oneself. And that’s perhaps the biggest issue. But, that’s life; it happens. And…, it will endure.
“Most companies in Japan are still vocal about a preference around age. We may not want to talk about it in the open, but most are asking for candidates to fit into a certain mold,” says FocusCore’s Sweet.
Everyone is absolutely sizing you up
Evaluations subtly based on age are quotidian, and we all do it.
Behind closed doors, we talk about the type of employees we want to propel the firm forward or the young partner we see as being able to inject a bit of fresh air into staid processes; we fill job descriptions with implicit bias-ladened requirements masked as job qualifications in asking for tech-savvy employees, recent college grads, candidates with a certain tech stack, perhaps, simply, for an applicant in possession of “up-to-date software knowledge.” All of this could be suggestive of bias depending on who is paying attention. Truly, as the aforementioned Timothy Endicott suggests, an unfair amount of responsibility does rest with the judiciary. As it does with HR.
And so, while the uniquely wide look talent hunters outside a firm provide is informative, we also wanted to know what HR pros see on their side of the fence. How do human resource professionals contend with these issues? How do they get ahead of obstacles, encourage diversity, head off bias before it appears in new companies, or clear it out in established ones?
Of the seventeen HR leaders we reached out to for this story, only five responded: two politely declined; three said yes. Of those three, only one was able to meet our deadline—Sam Shah, HR Manager at nanameue, Inc. Before we get started, it’s important to note that given the sensitivity of the subject, Shah and his HR peers queried were asked to speak broadly about what they hear from peers in their universe—not with any specificity about what currently happens (or has ever happened) within the walls of their own firm. Enter, Shah.
“There are times when managers are vocal about age—usually it is to match with the current team personality as well as communication,” says Shah. “It is no secret ageism is very common in Japan, and while most just think hiring younger means cheaper—and, you can pull more work out of them—there can be valid reasons; mainly team communication and understanding of the product.”
FocusCore’s Sweet was able to shed some light on this as well given his close proximity to hiring managers and top leadership. “I’ve seen foreign companies come into Japan and they want YOUTH! They are going to have a CEO in their 30s and an energetic C-suite in their 30s. What these companies find is that these candidates don’t exist.”
Sweet finds this drive for younger talent capable of doing everything imaginable shortsighted, and often short-lived. “Younger talent generally don’t have enough experience or ambition as their western counterparts to jump into a strategic level role,” he says, citing a Canadian firm adamant about hiring a 30-year-old CFO. They “waited for over eight months and ended up hiring someone in their 50s. The company soon pulled out of Japan.”
I asked Sweet and Shah if concern is ever expressed about the lack of space available for candidates over 50 to “grow into a role.” Shah feels such applicants “would have a hard time,” but that “it would very much depend on the industry.” Sweet, being on the agency side of things and afforded a bit more candor, says “Absolutely. In tech roles, it would be a fear for lack of relevant/updated technical skill,” he tells us.
Growing into a role can be a real concern with firms, and you may be surprised by just how long that window can be. I ran into this myself when I had designs on pursuing a PhD in history at the still youthful age of 34. A beloved professor, talked me out of it; ageism in higher education wouldn’t do me any favors, he insisted—universities generally want faculty to improve upon scholarship, recruit new students and other big name scholars, and that given my “advanced age,” unless I wanted to toil as an underpaid adjunct for the rest of my life (if I could even get that sort of gig in the humanities) success was unlikely. He thought my skills would be better applied elsewhere. I listened. It was good advice.
But, I’m still young.
If you consider yourself to be a “young” 40, or a young 50… even a young 60-year-old, I’m afraid the market doesn’t quite think of you that way. We’re in the same boat—at 54 now, it appears as though I’m far too ripe for anything beyond the discount bins at Daiei (they do have some nice carrots in there, though).
In this storytelling section, however, I’m not talking about folks like us. I’m referring to those readers who are “young approved” according to the world of work—those vibrant souls still in their twenties who want to work in Japan, or who’re already here and deciding what to do with their future lives. Because make no mistake, GenZ, etc., you too should be contemplating the realities of your future now, not later. Because being old, as you’ll see, arrives long before you think it does.
From 22 to 40 in a heartbeat: A cautionary tale
Not in tech yet, but considering the jump? Consider one possible scenario simply for illustrative purposes:
You arrive in Japan after college; let’s say you’re 22. Maybe you lived and breathed the Japanese language when young, and you’re already in the N2 camp. Nice work. You spend five years teaching your native language; not uncommon. After that five years of teaching, though, you want more. So, you think: Masters. You apply to a program, and enroll. You still need to eat, though, so you continue to teach part-time. You finish your graduate program in two years. Congratulations. You are now a robust 29 with seven years of teaching experience.
More minted than when you arrived, you continue to teach your native language, but now at a university. It’s rosy at first, but the money and students sleeping in class aren’t your favorite. There are other challenges. Your work is some distance from home, and your schedule is not the same as your significant other. Life in your non-Japanese language bubble has caused your Japanese language skills to suffer, but, at least you get by.
After three years teaching at university you’re now 30. You’ve had enough, and decide to transition to tech. Lots of opportunities there, you’ve heard, and lots of ways to learn. Your Japanese will still have to wait; now its time to beef up on programming languages. You wonder which niche to pick… what, dear sage, does the future foretell? Front end? Back end? Full stack? Who knows. You throw the dice. “I’ll have plenty of opportunities,” you tell yourself.
You graduate at the top of your class, but your experience is thin. Good coding camps place graduates quickly, and firms like Code Chrysalis offer lifetime career support—a huge plus. You land a job. With only a single year of coding experience, and now 32, you make do and buckle down.
Five years later, you’re still in this first developer job of yours. You love it; being an independent contributor is where you see yourself remaining for the duration. However, you’ve got an itch: you’d like to try working for another firm as you feel you’ve hit a bit of a learning ceiling with this current company. The compounding experience deficit, though, has you worried; compared to fresh Japanese grads, who at this point have more programming experience than you, you’re a full ten years behind. What to do? At this point you are now 37. Should you jump ship? Having read an article on TokyoDev way back when, you’re well aware that as you near 40 things are going to be tougher than ever… time to think of “Plan B?”
Before we hit the panic button—as many voices will attest—transitioning to another firm when you’re already in tech is not impossible. We also don’t want you thinking that switching from another field to tech is impossible, as clearly is not. Both options, however, have distinct challenges as you age.
As Jordan Jarjoura points out, “Age in Japan is used as a benchmark to allow for the assumption of one’s professional ability; graduation date and years of experience all play a part, and are still looked at as a factor in leveling.”
And, let me tell ya… these dates fly by like you would not believe. Research suggests most make their way to Japan in their 30’s. I won’t posit as to what careers these new emigrants wish to pursue, or why they’re here. However, if these numbers are in any way accurate, my scenario above paints a somewhat rosier picture than what might actually be the case for most new arrivals. Add a family to the mix, and things get even dicier.
“Failing to plan is planning to fail,” an old boss used to tell me. I always hated that statement. But where he was right is that we can never plan for what others have in mind for us. So we’ve got to do our damnedest plan for that, and beat them at their own game. The lesson here is: don’t waffle, don’t wait. If you’re considering a future career in tech, bite the bullet and go—as quickly as you can. Because as you can see, the deck is stacked against you from the get go.
Clearing Hurdles: The Mid-Career Transition
So, let’s talk about this. Sam Shah feels switching industries can be accomplished up “until someone is in their 40’s” but that “starting in your late 40s becomes a challenge.” It is possible to find jobs that are similar, he says, but that going for a career change “is a huge challenge.”
David Sweet agrees: “I think it is very tough to switch industries in Japan.” He tells of a cosmetics company client looking for a supply chain director role that was restricting their search only to candidates with experience in that industry. “Obviously, cosmetics has some critical importing criteria which makes this important, but eventually they opened their search to consider candidates from personal care, then finally, to all consumer goods companies, but that was as far as they would go. Even with positions like finance and HR, where you would think skills are transferable, many companies still favor those who come from industry.”
In the end, it comes down to the need to be open to “adjusting company culture.” says Jarjoura. “To some degree it’s a ‘sea change’ effort,” he says, but adoption appears on the rise—particularly “as Japanese companies become exposed more globally.”
Interestingly, nanameue, Inc.’s Shah sees opportunities for people with a strong network to transfer to “a new role as an advisor,” or perhaps “more on the blue collar side of things—something close enough, like in the way a system architect can flow into sales roles.”
Jarjoura, whose team at Meshd helps high growth, new growth, and unskilled teams with a gamut of HR related needs, agrees: “with a few years of relevant experience, a Japanese firm might consider such a person worthy of hiring at a junior level, though skill based hiring can be seen from the outside as being relatively flat.”
Is there an age related cutoff point when it comes to finding new, gainful employment in Japan?
We wondered if there might be a set point where it becomes increasingly more difficult to find work—a time where ones category experience combined with an advance in age begins to place them out of favor as a mid-level hire—a time, when it just might be a wiser choice to stay put?
“Is there a cutoff point? It depends on the path you choose, says Bukky Adejobi, career coach at Code Chrysalis in Tokyo. ”I would imagine the closer you are to 60, the more difficult it is to find employment when trying to break into an industry. For those already working as developers, I reckon there is some flexibility, but that flexibility begins to decline once one graduates from their twenties into their thirties.”
Adejobi cited placement results as one positive sign that being up there in age isn’t necessarily a career crusher, and tells us older developers who have completed their program were mostly in their mid- to late 40s, with one in their 50s, and that when we spoke in July of 2023, “among this group, less than 20% are still receiving support with their job-hunt,” with most of those grads being those who finished between the end of 2022 and May of 2023. Overall, “more than half of them have successfully found employment,” she says.
Perhaps aware of Japan’s own drive to redefine what is old, older, oldest, Sweet relays the story of a German client who told him they had absolutely no preference with regard to age for a recent opening. “They have someone in their 70s working; this stopped me in my tracks as it was as rare as a hen’s tooth.” That said, for those of you eyeballing more of a country manager role, Sweet sees the door quite open. “Most companies would welcome someone in their 50s,” he says. Of course, not everyone wants to be a manager, let alone run the entire operation. What about the pleased as punch individual contributor, how do they fare?
“I don’t want to be a manager.” A peek at individual contributors
What if, after a decade plus of experience, you have little to no desire to enter the world of management? Can you remain as an individual contributor? Would this be a problem? Sweet has the single answer you’re looking for: “Nope.” Then adds, “It’s generally accepted in Japan, much more than in Europe or the U.S.”
Shah, as well, says remaining an individual contributor as you age is far easier if you’re already within a company as opposed to coming in from the outside, so, “yes, and no. Of course, you have to show an understanding of the product,” he says, “but it definitely happens.” He even sees developers who shift into management and then back again—“sometimes they just love what they do.”
Adejobi concurs. “I don’t believe there are significant challenges in remaining an individual contributor,” adding: “experienced developers often seek opportunities in larger organizations to work on more substantial projects or join new companies as senior ICs. Age bias, when present, appears to affect individuals trying to enter the industry rather than experienced coders,” she says.
Is AI a threat to older candidates landing junior positions?
What about AI? If you’re considering a career switch and getting up there in age, is there any merit in the hullabaloo about AI threatening opportunities for junior roles? If AI is going to take away a swath of junior IT roles, wouldn’t someone already older with less potential room for a long career be at a true disadvantage in this situation? It depends on whom you ask.
Shah says, he doesn’t see much threat at the moment. ”With AI coming in, I think there is still time before any “takeover” talks. Sweet, however, sees the threat as more pressing. “Absolutely” he says, and references his son, who is 25 and working as a game designer for a listed, Japanese game maker with 1,000+ employees. “He knows his days are limited.”
Sweet’s son believes that “within 12-18 months, most of these positions will be gone in his company,” and Sweet thinks at “most companies, it will be first-in/first-out.”
Not All Doom and Gloom; Embracing the Older Candidate
If you’ve exited your thirties, or soon will, your work life is certainly far from over. And, believe it or not, things do appear to be looking up—even for Japan; some outlets have even gone as far as to suggest mid-career shifts are “booming.” (For the time being, I’ll stick with “looking up.”)
Glen Brewster, along with each of our interviewees, would likely welcome such news. He thinks Japan on the whole could benefit from adopting the Nissan model, where staff can rotate across divisions and regions, often providing them with opportunities in global functions (p 143) so they can experience the full “vision of the company,” as he put it. Designed with diversity in mind, such broad-scope programs at larger firms act as management pillars that, as Nissan’s corporate comms suggests, helps them build the strength of their team by reinforcing human resources “not only through the recruitment of new graduates but also by actively hiring outstanding mid-career talent and mid-level management candidates from outside the company (p 105).”
Jarjoura, who works with many firms of this size, sees some of this flexibility first-hand, and attributes much of the opening up of opportunities for mid-level hires to the changing digital landscape over the last two decades. “Digital technology changed everything,” he says. “LinkedIn, Facebook, Twitter… foreign firms already familiar with these methods leveraged them heavily to find and recruit talent, and Japanese companies had to compete.” Brewster, too, sees competitive strains influencing internal change.
“Companies are needing to see immediate results and poaching tomorrow’s talent to get there,” he says. “New grads lack the proper experience and training to sell well,” so “Japanese firms have decided to fight fire with fire and go against this intrusion by hiring innovative SEs (Sales Engineers) who already know how to sell creatively. They’re using every tool in their toolbox to compete.”
Helping Japan balance its approach to a new tech workforce
Code Chrysalis’ Yan Fan is helping to bridge this gap between what companies think they need now, what they say as right around the corner, and how they identify cultural fit. Fan says Code Chrysalis devotes a large part of its business to providing enterprise training she says can be best described and “mindset change programs delivered as coding courses,” and realized early on that if they “wanted to make a real difference” in their community, they had to “engage with large Japanese corporations and help them in their efforts to nurture modern engineering and tech-enabled teams.”
To date, their largest single class at a major manufacturing company has enrolled 200 students. “We hope that by educating more people, getting them more confident around coding and software and encouraging more diverse thinking, more business opportunities will be found and more jobs will be created.”
To ensure everyone gets a fair shot, Adejobi tells us Code Chrysalis pays a strict attention to potential partners, and recalls a situation where they passed on a partnership with a recruitment/sourcing company “to connect graduates with job opportunities” because of the presence of what they saw as hiring bias, “particularly with the majority of companies in their directory being classified as ‘traditional Japanese companies.’”
“Our primary requirement is that companies must not have any age or gender-specific criteria,” added Adejobi, “unless they aim to diversify their team with more female hires.” Thanks to this approach, she says they “don’t encounter many firms with age-based bias.” And, no doubt they’re righting companies along the way with this exertion of well-applied pressure.
The Thorny Question of Ethics: It’s Not Just Japanese Firms
Lock-step recruiting, a preference for a pre-ordained career trajectory, and the perceived pursuit of cultural fit were all cited as reasoning for Japan’s difficulty in broadening its approach to HR. Things are indeed different here. So we wondered… if these practices are such an engrained aspect of Japanese business structure, how do foreign firms handle things? Is this propensity toward restrictive hiring practices mirrored in foreign firms operating in Japan as well? I asked David Sweet. “This is all foreign firms,” he said. Shah echoed the same sentiment: “Most definitely.”
Adejobi says at Code Chrysalis, they have “learned about age-based hiring and compensation bias through feedback from graduates regarding their interview process and interactions with certain companies,” and says “these biases were observed in SMEs based in Japan, both foreign-owned and Japanese-owned, as well as large Japanese corporations with a bent toward more traditional operations, affecting candidates in their early 20s as well as those in their mid to late 40s.”
My ethics or yours? Whose are best?
This dismissal of employment parity present outside Japan in apparent favor of cultural relativism (the “when in Rome” approach) is worth examining more closely. Could it be that cultural fit in Japan is a more powerful construct? Or, are companies—free from the legal constraints of their own nations—simply taking advantage of an opportunity to hire young because in Japan they can get away with it? As with all of this, there is no simple answer; ethics and the law, while table mates, do not always see eye to eye.
Cultural relativism, and its “inadequacies” have long been discussed by ethicists, as have its opposite, more absolutist approach, “ethical imperialism (the “our ethics are best” approach). How, then, can corporate HR departments, and individual hiring managers do the right thing?
Ethical scholars such as Thomas Donaldson have suggested guidelines that can provide a “starting point for all companies as they formulate and evaluate standards of ethical conduct at home and abroad, noting that “to be broadly relevant […],” they need to “include elements found in both Western and non-Western cultural and religious traditions.” […] and demonstrate a “respect for human dignity, respect for basic rights, and good citizenship.” Donaldson cites a relevant example related to gift giving in Japan:
Managers should deem a practice permissible only if they can answer no to both of the following questions: Is it possible to conduct business successfully in the host country without undertaking the practice? And is the practice a violation of a core human value? Japanese gift giving is a perfect example of a conflict of cultural tradition. Most experienced businesspeople, Japanese and non-Japanese alike, would agree that doing business in Japan would be virtually impossible without adopting the practice. Does gift giving violate a core human value? I cannot identify one that it violates. As a result, gift giving may be permissible for foreign companies in Japan even if it conflicts with ethical attitudes at home.
If the goal of any firm operating in Japan is to attract, retain, and yes, profit from the capabilities of its workforce, one’s position on such matters is worth contemplating at length. After all, employees, like consumers, tend to vote with their feet, and the door swings both ways; miscalculations both literally and figuratively can be severe.
By way of example, in an eminently intriguing 1995 paper from legal scholar, Kyoko Kamio Knapp entitled: In the World, but Not of It: Japanese Companies Exploiting the U.S. Civil Rights Law, Kamio Knapp details a dramatic rise in discrimination claims heaped upon Japanese firms operating in the U.S. at the time. The paper illustrates how devastating an ignorance (or avoidance) of the law can be to national reputations (not to mention corporate finances), and offers an illuminating look into both cultural relativism, and ethical imperialism at play—in near real time. It’s a paper certainly worthy of the curious reader’s attention.
With near-make-believe tales of explicit bias that collectively resulted in Congressional intervention in 1991, Knapp’s paper prompts interesting deliberation, and forces a reckoning with how we as individuals come to decide whose ethics are “best” when the business practices of foreign and domestic employers don’t align. If you’re looking for a little light reading, you can read the full 512-page Employment and Housing Subcommittee document, on which her assessment is based, along with other resources on the topics covered in this article.
A sidebar: The lure of contract workers
One thing that popped up in my discussion with Christopher Rathbone of City-Yuwa Partners was the increasing role contract employment plays around the world. For those foreign firms considering a more western-aligned approach to contract work (Uber, anyone?), I was curious if this sort of approach might rock the boat in unfamiliar and unwelcome ways here in Japan.
“If a foreign employer intends to hire workers for long term positions but seeks to try to have flexibility by employing the workers on fixed-term contracts, aside from the difficulty in actually dismissing the workers due to yatoi-dome doctrine, many well-qualified Japanese workers are put off by being on fixed-term contracts which they consider to be inherently inferior in status regardless of being offered overall better conditions by the foreign employer.”
As Rathbone suggests, there are obvious social and financial complications specific to Japan, and he seems to consider the approach as needlessly restricting the talent pool. Globally, calls to reduce predatory hiring do appear to be having an effect; however, as we’ve recently seen in the UK, its a bit too early to celebrate if you’re not a fan of the gig economy.
Perhaps mindful of these situations (and the bottom line), Nissan, for one (and, perhaps not coincidentally), has taken the opposite approach—bringing contractors in-house, and making them full time employees. Going against trend and increasing a firm’s commitment to talent is certainly one way to change the game. Speaking of sport, Rathbone has an illustrative story to share:
“A big mistake made by foreign employers is thinking that employing workers in Japan will only require some tweaks of their global employment policy as if the differences in employment regimes are like those between American and Canadian football. Considering that employing workers in Japan will be a different sport entirely would be best because of the restrictions on dismissal or refusal to renew contracts in particular.”
Maximizing Employability for the Long Haul
“It’s an open secret that it’s a candidates market,” says Exec-Search Partners’ Brewster, who thinks now is the perfect time for job hunting in Japan. But he stresses knowing how to make yourself appealing to hiring managers is critical.
“A clear and logical career progression is important,” and you’ll also want to be able to demonstrate that you’re still learning—and, not just tech skills. Employers will want to see “you’re becoming more skilled as time goes by,” he says, and they’ll be asking: “Do you have any certifications? How are your Japanese language skills? Have you graduated from one of Japan’s specialized schools, boot camps, or business schools?”
Essentially, he tells us, you need to be able to provide those with the ability to help you “a clear way to get you placed.” Knowing what it is you want, why you are the best choice for an employer, and going “all in with what you want to do” he asserts, is important.
How to arm yourself with the sort of confidence Brewster says you need to get ahead? Frequenting meetups (Tokyo certainly has its fair share), and commiserating with other tech professionals in places like our own Discord server are two simple steps you could take that might help immensely. In our Discord server, for example, if you’re looking to find out what other candidates are experiencing in interviews and in and out of workplaces throughout Japan, we’d argue there is no better place. Don’t let schmoozing put you off. It often isn’t what you think. Just make an appearance; people will find you and make you feel comfortable.
“Your professional network and connections are powerful tools; make use of them.” says Adejobi. “Don’t let the fear of how people perceive you hinder you from reaching out for help. The worst that can happen is someone could say no.”
Seeing Yourself in the Wider Market: Fractional Hiring and Entrepreneurship
Winding down (or, up!) with fractional employment
We touched on fractional employment in our March article about the expanding Employer of Record ｍarket in Japan, and were wondering if those we interviewed believe it to be on an upward swing in Japan.
Shah sees “growth” in the idea of fractional, and sees ”more and more older professionals moving to contract positions and such,” but David Sweet finds “it’s nothing like in the U.S.” and that he rarely sees it in the areas he works “except on some lower level accounting positions.” He posits, however, that it “depends on how transferable a person’s skills are and how flexible they are on their salary.” In general, he sees “people trying to make their last career move at 50, with people transferring to a different industry or position, much earlier at, maybe 40.” Shah seconds, this. “Once people are in late 50s finding a proper job starts to become harder,” he says.
Exec-Search Partners’ Brewster commented on the fact that “most companies have internal retirement policy at 60-65, that can frequently allow an employee to either fully retire or semi-retire, or remain on signed as a contractor.” Such arrangements can “sometimes allow for a full salary, overtime, and bonuses,” he says, “but once you turn 65, there is social pressure to retire.” With natural lifespans in Japan running well past retirement age though, Glen says people do wonder: “how am I going to live with that amount of time left over?”
“In traditional Japanese companies,” Sweet reminds us, “employees are generally promoted together. At a certain age, one person may be promoted over another and an early retirement will be offered. The employee then leaves the company, but will consult (sometimes in recruitment) for the company as a client. Many will try to start a company, find a company that will work with them, and also eventually hire them full time.”
Shah brought this up as well, suggesting companies open to fractional hires may consider it as one way to “avoid middle men,” while allowing the employer to “hedge risk in case the person is not a match” were they to hire them outright.
Always good for an anecdote, Sweet says he has a friend in the U.S. creeping up on 60 this year who has aspirations to act as CFO at a different company but realizes the deck is stacked against him. He could work on contract for a smaller company at a fraction of the salary, he says, but “he’ll probably just stay on contract with the company until the company can hire someone to replace him.”
Which brings us to… hanging out your own flag.
Sailing your own ship as an entrepreneur
Starting your own business can aid in rendering this entire age question a non-issue—particularly if you’re the one doing all the hiring.
A strong advocate for entrepreneurship, and a business owner herself, Adejobi is big on encouraging students with excellent ideas when they possess the determination and mindset to see things through. When students do come to us with good ideas, she says, “in most cases, they’d seen our program as a means to gain the necessary skills to realize their entrepreneurial goals.”
Of course, starting a business is never easy, and as Sweet attests, “many may have good skills, but not the skill or desire to sell, market, network, or how to run cash flow.” Remaining in the workforce can also feel like a burden after a certain age, with the necessities of life causing many past age 60 to keep punching the clock just to keep busy, maintain a clear mind, and pay the bills—frankly, the reasons we all pursue work to begin with.
One-person consulting companies are a frequent choice among the recently retired (or let-go), though, something Sweet says has been the case in Japan “for many years, and often the only way for older professionals to work after they are on the job market later in life.”
“I wouldn’t recommend it to everyone,” says Adejobi, “but if you have a brilliant idea, I might suggest considering exploring it as a potential business venture.”
Why not, right?
Bringing it all home
Let’s stay here, then, and end simply… with the optimism of Code Chrysalis’ Adejobi.
She reiterates that “age can play a role in the job search, especially if your focus is on Japanese traditional corporations,” but that if you “shift your focus towards startups and networking, are not fixed on industries or particular roles, and are not overly concerned about salary, i.e., expecting a salary above the market average for new entries, you can find a way to succeed. There are always companies willing to give the right person a chance, but it will certainly not happen overnight.”
Amen to companies giving everyone their fair shake.
Acknowledgements
A special degree of gratitude must go to Christopher Rathbone, for his knowledge and generosity of time in helping us get a grasp of the law for this article. Without his extensive help, all would have been for naught. We also hear he makes a pretty good singing Santa Claus. Additionally, the candor and enthusiasm of everyone interviewed for this story over Google Meet (as well as via email) was beyond my expectations. Each helped shed light on what is, for most, a very hidden and confusing topic regarding the world of work here in Japan. To all, I thank you. —Doc
For more research:
Japanese Law in a… nutshell?
Not exactly. But, this guide to Japan’s legal system, from Business Law in Japan, Vol. 1 might give you a good head start.
Interpreting the law in Japan
Understanding the law helps when you have good reference points written in relatively easy to understand language. In the United States, the National Archives Code of Federal Regulations write-up on Title 29 is particularly helpful to get a feel for how other countries deal with age issues in the workplace; of particular note for those of us in Japan is the discussion surrounding workplace seniority systems.
Additionally, one of my main guides for background research was Hitotsubashi University professor of law, Ryoko Sakuraba’s 2009 research on the Japanese labor law and its exemptions. While a bit dated, is exemplary in its detail and clarity.
“The carrot and not the stick” in practice: Approaches to the U.S. First Amendment
While a bit obtuse at first blush, “promote rather than punish” does have a place in the law, as we can see with this U.S. Supreme Court judgment. While contextually different in that it references the First Amendment of the U.S. Constitution, it is at least linguistically linked. The main idea? “… the First Amendment aims to promote rather than punish counter-speech…” (p 11).
Learning about age discrimination laws in your home country
Anderson Mōri & Tomotsune’s, Age Immigration website offers analysis of age discrimination on 40+ countries. See how your home country fares. In every single one of them, vague language and exemptions rule the roost.
On ethics and culture
Federico Ast’s, The Moral Dilemmas of Global Business is a particularly good read, as is an additional paper from Kyoko Kamio Knapp Knapp: https://mckinneylaw.iu.edu/iiclr/pdf/vol6p545.pdf
The complete congressional hearings covered in Knapp’s paper
For those interested in understanding the anti-Japan sentiment circulating in the U.S. and how this all played out in these 1991 Congressional Hearings, this paper is a treasure trove:
Implicit bias. How will you fare?
We all use deeply rooted and often mysterious guidelines that help us evaluate people and situations each and every day—essentially, bias. Take Harvard’s implicit bias test to see how you think of things. I’m not 100% sold on how the test works, but, then again, I’m not this kind of researcher. This test has been out there for a number of years now…
An argument against “at will” work through the lens of “unequal power”
Here’s a great paper from the Economic Policy Institute about an area of employment some (many?) find sacred. An opposing view: The legal ‘freedom of contract’ framework is flawed because it ignores the persistent absence of full employment
Implicit bias and DEIB reading
Lehigh University psychology professor Gordon B. Moskowitz’s books are an excellent place to look for informed knowledge about bias, stereotyping and goal setting.
More papers on work in Japan
- An early find that helped me see how age bias plays out in job advertisements. The paper is quite data heavy… great for math aficionados and fans of R, no doubt. Preference for Young Workers in Mid-Career Recruiting Using Online Ads for Sales Jobs: Evidence from Japan, by Mirka Zvedelikova
- An excellent paper about how Japan is tackling age and work, from Shinya Kajitani, Associate Professor, Faculty of Economics, Kyoto Sangyo University: Promoting Employment of Older Workers and Adjustment of their Working Conditions at Japanese Firms
Big Tech gets sued and loses
The case filings in Google’s 11M age discrimination case