10.6092/issn.1561-8048/15628
Despite the significant improvements in terms of gender equality in recent years, numerous gaps – especially, the one related to the labour market – still persist all over the world also due to the COVID-19 pandemic. The present research intends to discuss whether the controversial gender quota systems – introduced in many countries as a form of positive action to foster a more diverse work environment – could face the crisis in order to avoid the loss of decades’ worth of achievements on equality. We chose to compare Italy – which implemented the quote rosa system in 2011 with mixed results – and Japan – which is reviewing its plan to promote women’s development after failing to achieve its objective of having at least 30% of women in leadership positions by 2020 – because both countries were still far from reaching their goals about gender equality and, therefore, in a vulnerable position when the pandemic hit.
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Michela Riminucci
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Italian Labour Law e-Journal
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COVID-19 and Gender Gap in Italy and Japan: Can “Pink Quotas” be the Solution?
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2022-12-19
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Michela Riminucci
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COVID-19 and Gender Gap in Italy and Japan: Can “Pink Quotas” be the Solution?
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COVID-19 and Gender Gap in Italy and Japan:                                          Italian Labour Law e-Journal
Can “Pink Quotas” be the Solution?                                                          Issue 2, Vol. 15 (2022)
Francesca Marinelli                                                                               ISSN 1561-8048
Michela Riminucci                                                  https://doi.org/10.6092/issn.1561-8048/15628
francesca.marinelli@unimi.it
riminucci@people.kobe-u.ac.jp




           COVID-19 and Gender Gap in Italy and Japan:
              Can “Pink Quotas” be the Solution?
                     Francesca Marinelli*, Michela Riminucci**

 1. Premises: why talk about the topic. 2. The Italian implementation despite the absence (for
 many years) of the European Union. 3. The Japanese (lack of) implementation. 4.
 Conclusion.

                                                   Abstract

     Despite the significant improvements in terms of gender equality in recent years, numerous gaps
     – especially, the one related to the labour market – still persist all over the world also due to the
     COVID-19 pandemic. The present research intends to discuss whether the controversial gender
     quota systems – introduced in many countries as a form of positive action to foster a more diverse
     work environment – could face the crisis in order to avoid the loss of decades’ worth of
     achievements on equality. We chose to compare Italy – which implemented the quote rosa system
     in 2011 with mixed results – and Japan – which is reviewing its plan to promote women’s
     development after failing to achieve its objective of having at least 30% of women in leadership
     positions by 2020 – because both countries were still far from reaching their goals about gender
     equality and, therefore, in a vulnerable position when the pandemic hit.



     Keywords: Gender Gap; Labour Law; Pink Quotas; COVID-19; Italy; Japan.



 1. Premises: why talk about the topic.

    With over two years into COVID-19, it is now time to come to terms with the fact that
 this pandemic – arguably the worst crisis since World War II – is widening inequality
 everywhere, as evidenced in the International Labour Organization’s most recent reports.1
 In particular, the reports indicate that in the labour market women suffer the costs of crises


 * Francesca Marinelli is Associate Professor of Labour Law at the University of Milan, Italy. Although the paper
 is the result of a joint effort of both the Authors, Marinelli is the Author of Sections 1 and 2. This essay has
 been submitted to a double-blind peer review.
 ** Michela Riminucci is Associate Professor of Comparative Labour Law at the Kobe University, Japan.

 Although the paper is the result of a joint effort of both the Authors, Riminucci is the Author of Sections 3
 and 4.
 1 See among the others: ILO, ILO Monitor. COVID-19 and the World of Work. Eighth Edition. Updated Estimates and

 Analysis, 2021, available at the following link. https://www.ilo.org/wcmsp5/groups/public/---dgreports/---
 dcomm/documents/briefingnote/wcms_824092.pdf.
 Francesca Marinelli                                                                  Italian Labour Law e-Journal
 Michela Riminucci                                                                           Issue 2, Vol. 15 (2022)
                                                                                                    Section: Theme




to a greater extent than men. 2 To address this phenomenon, it is important to both
understand the main reasons behind this situation3 and tackle the inevitable consequences
related to the predictable exacerbation of the gender gap in the labour market. The latter
prediction is concerning since gender disparity had been high even before the COVID-19
outbreak. For example, in 2019, the global gender gap in labour force participation was
approximately 27%.4
    This uneven situation is not only unfair but also leads to negative socio-economic
consequences that may impact the economy. 5 Furthermore, as seen in previous crises, the
higher is the unemployment rate, the fewer employment opportunities women are provided,
and women who lose their jobs during the pandemic will find more difficult to re-enter the
labour market when it ends.6
    Based on the abovementioned information, long-term policies will undoubtedly play an
important role in counteracting this existing trend of gender inequality. Thus, the legislator
should be concerned with not only investing in instruments aimed at favouring women in
the labour market for the greater inclusion of this underrepresented group (e.g., the
implementation of social infrastructures and tax relief), but also enhancing institutions to
mitigate the common stereotypes regarding gender roles (e.g., introducing and/or
implementing paternity leaves). However, since most of these tools increase state
expenditure, which is incompatible with the ongoing recession, it is critical to find
mechanisms that are effective as well as economical. Under these motivations, this paper will
focus on pink quotas.
    Pink quotas are legal mechanisms under which a percentage of job positions are reserved
for women; they can be categorized as positive or affirmative actions,7 namely a type of those
particular measures, usually introduced by anti-discrimination law, aimed at ensuring
complete practical equality between men and women with respect to their professional lives.



2 For  example, in 2020, women’s employment declined by 5% as a result of the pandemic compared with 3.9%
for men. See ILO, World Employment and Social Outlook. Trends 2021, 2021, 23,
https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---
publ/documents/publication/wcms_795453.pdf.
3 See on that subject Servais J. M., Marinelli F., Covid-19 and the World of Work: Where We Are and Where We Should

Go, in Lavoro Diritti Europa, 4, 2021.
4 See ILO, ILO Monitor. COVID-19 and the World of Work. Fifth Edition, Updated Estimates and Analysis, 2020, 8

ff.:
https://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/documents/briefingnote/wcms_7493
99.pdf.
5 See Eurofound, Labour Market Change. Women and Labour Market Equality: Has COVID-19 Rolled Back Recent

Gains?, 2020:
https://www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_document/ef20068en.pdf;
European Institute for Gender Equality, Economic Benefits of Gender Equality in the European Union. Report on the
Empirical Application of the Model, 2017, https://eige.europa.eu/publications/economic-benefits-gender-equality-
european-union-report-empirical-application-model.
6 See ILO, nt. (4), 10.
7 As remembered in Sowell T., Affirmative Action Around the World: An Empirical Study, Yale University Press, New

Haven, 2004, 4 and 2: the term “affirmative action” which arose in the United States from an executive order
by President John F. Kennedy, exists besides in America, in a lot of other countries. The concept has been
transposed into the European Union law under the name “positive action”.

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    Michela Riminucci                                                                         Issue 2, Vol. 15 (2022)
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   Assuming the legitimacy of such measures since they are enforced by law in several
different contexts8 – and thus ignoring the debate on their fairness by running the risk of
both rewarding less qualified individuals 9 and creating the phenomenon of reverse
discrimination – this study aimed to analyse the pink quotas implemented in the workplace
– so ignoring sectors such as the electoral system10 – in two very different nations: Italy and
Japan.
   This study relies only on data – ignoring, due to its inconclusiveness, the massive
international literature on the impact of the quotas on the economy 11 – in order to
understand whether the abovementioned mechanisms are inadequate, or even
counterproductive, for women – since introducing a legal requirement helping only one
gender means, per se, to negate its strength – or, on the contrary, whether they are convenient
tools for tackling the gender gap, as they do not require, as said above, financial resources.
   In particular, in Section 2, the Italian legislation on pink quotas will be analysed in the
context of the European Union (EU) and its effects will be evaluated using the most recent
data. In Section 3, the situation in Japan will be examined, considering that the country has
not yet implemented mandatory gender quotas. Finally, some conclusions will be drawn in
Section 4.


2. The Italian implementation despite the absence (for many years) of the European
Union.

   Limiting as said our analysis to the workplace, Italy introduced the so-called pink quotas
(a literal translation of the Italian quote rosa) in only one area: in order to tackle the
considerable imbalance between women and men in economic decision-making at the
highest level.




8  See, at the international level, Article 5 of the ILO Convention No. 111/1958 titled “Discrimination
(Employment and Occupation) Convention”; at the European supranational level, Article 3 of the Directive
2006/54/EC on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men
and Women in Matters of Employment and Occupation; at the Italian level, Article 42 and ff. of the Legislative
Decree No. 198 of April 11, 2006, which is the National Code of Equal Opportunities between Women and
Me; in Japan, the Basic Act for Gender Equal Society, Article 8 of the Equal Employment Opportunity Act,
and the Act on the Promotion of Female Participation and Career Advancement in the Workplace.
Nonetheless, see Section 2 for a more detailed explanation.
9 On that matter see: Goldman A. H., Justice and Reverse Discrimination, Princeton University Press, Princeton,

1979 and more recently Lippert-Rasmussen K., Making Sense of Affirmative Action, Oxford University Press,
Oxford, 2020. Of course, in order to be legitimate, the quota system must be formulated in a neutral manner,
i.e., provided for in such a way as to be applied not to an ad hoc category (e.g., the female gender) but to the
category which, in that specific context, appears to be the least represented.
10 About the matter related to other potential sites for affirmative action see Lippert-Rasmussen K., nt. (9), 9 ff.
11 For an overview of the literature that emphasizes pros and cons of the pink quota systems on the economy

see among the most recent writings: Pastore P., Italian Lesson about Getting Women on the Board Five Years after the
Implementation of the Gender Quota Law, in Corporate Ownership & Control, 16, 1-1, 2018, 185; Papangkorn S.,
Chatjuthamard P., Jiraporn P., Chueykamhang S., The Effect of Female Directors on Firm Performance: Evidence From
the Great Recession, 2019, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3375702.

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     Michela Riminucci                                                                      Issue 2, Vol. 15 (2022)
                                                                                                   Section: Theme




    In particular, Italy enacted a specific law in 2011 for a particular area of high public
interest, i.e., for the listed companies and the non-listed companies under the control of
public administrations.
    Thereby Italy has proved itself to be significantly ahead of other legal systems if we just
consider that although gender imbalance in the highest level for economic decision-making
is a widespread phenomenon12 there is a lack of laws worldwide, European Union included.
In fact, although it has been attempting to introduce a quota system in the “economic
decision-making world” for at least the last ten years,13 the proposal has remained stuck in
the EU Council due to opposition from some Member States until few days ago when the
Directive 2022/2381 on improving the gender balance among directors of listed companies
and related measures was adopted.14
    That being said, it is nevertheless interesting to stress that recently while the Italian
executive is showing to be sceptical about this in-use tool,15 the European Union – although,
as said, does not yet have uniform legislation on this point –, nevertheless has remarked that,
considering the data of the Member States, “gender quotas […] and subsequent sanctions in

12 See World Economic Forum, Global Gender Gap Report 2020, 2019, 11:
http://www3.weforum.org/docs/WEF_GGGR_2020.pdf, which states that only 18.2% of firms globally are
led by women, and on average, 22.3% of board members in OECD countries are women with an even lower
representation in emerging economies (e.g. 9.7% in China and 13.8% in India).
13 After addressing the problem of women’s underrepresentation in decision-making processes and positions

in the strategy for gender equality 2010-2015 (European Commission, Strategy for Equality Between Women and
Men 2010-2015, 2011, https://data.europa.eu/doi/10.2767/71254), in November 2012, the European
Commission submitted a proposal – without success – for a directive on promoting gender balance among
non-executive directors of companies listed on stock exchanges (commonly known as the “Women on Boards”
proposal). In particular, according to the aforesaid act, listed companies that do not have a presence of at least
40% of the underrepresented sex among non-executive directors have an obligation to make appointments to
those positions based on a comparative analysis of the qualifications of each candidate using pre-established,
clear, neutrally formulated, and unambiguous criteria and attain the said percentage at the latest by 1 January
2020      (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52012PC0614&from=EN).
Since then, the European Parliament has continued to push for progress. In particular, there are at least two
acts of the Parliament that strongly support legislative action in that area: the Resolution adopted in November
2013 on the proposal for a Directive of the European Parliament and that of the Council on Improving the
Gender Balance among Non-executive Directors of Companies Listed on Stock Exchanges and Related
Measures (https://www.europarl.europa.eu/doceo/document/TA-7-2013-0488_EN.html?redirect), and the
one adopted in January 2021 on the EU Strategy for Gender Equality
(https://www.europarl.europa.eu/doceo/document/TA-9-2021-0025_EN.html).
14 The text of the Directive (EU) 2022/2381 of the European Parliament and of the Council of 23 November

2022 on improving the gender balance among directors of listed companies and related measures is available
here: https://eur-lex.europa.eu/eli/dir/2022/2381/oj. Nevertheless, as stressed by Pastore P., nt. (11), 186,
we need to remember that even though it has not succeeded for many years, “this European Strategy has been
decisive in bringing gender policies into the political agenda of several Member States and in encouraging them
to impose upon listed companies and the state-owned ones – either through law (as it happened, for example,
in Norway in 2003, France in 2010, Belgium and Italy in 2011, and Germany in 2015) or through self-regulatory
and corporate governance codes (as in the case of United Kingdom, Luxemburg, Poland, Sweden, Finland) –
the balanced presence of women and men in the overall membership of their corporate and management
bodies”.
15 On February 17, 2021 the newly appointed Prime Minister of the Italian government, Mr. Mario Draghi –

during his policy statements before the Senate of the Republic on the economic recovery of the country after
the COVID-19 pandemic – said that in order to face the phenomenon of gender gap we need not to rely on
an “hypocritical compliance with the so-called “pink quotas” required by law but to invest, not only financially
but, above all, in cultural terms, to ensure that more and more young women opt to train in the sectors that
will form the basis of Italy’s recovery”.

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cases of non-compliance or non-functioning procedures have proven to be efficient
measures to secure parity and to work against unequal power relations”.16
    On the basis of these premises, it comes to wonder where the truth lies. In order to do
that it is important, before giving a glance to the data, to have a quick look at the Italian
legislation.
    As said, to solve the problem of women’s under-representation in the highest positions
of companies, Italy has set up the pink quotas for companies under the control of public
administrations and those whose shares are listed on regulated markets. This system was
enacted under Act 12 No. 120 of July 12, 2011, also known as the Golfo-Mosca Law
completed for the companies controlled by public administrations by the Decree of the
President of the Republic No. 251 of November 30, 2012, and then Article 11, paragraph 4
of Legislative Decree No. 175 of August 19, 2016.
    For the sake of legitimacy, the law was formulated in a neutral manner such that it could
be applied to the sex that appears to be under-represented in a specific context and not just
for women. Furthermore, it was structured as a temporary law (the original deadline was
2022, at least for the listed company on regulated markets) for the promotion of women’s
involvement in corporate activities for a period that was deemed to be sufficient to encourage
a culture change. Nevertheless, Article 1, paragraphs from 302 to 305 of Law No. 160 of
December 27, 2019, extended the pink quotas for another 18 years and has considerably
modified the rules.
    Leaving the details of these renewed and complex rules, as well as those of the expansion
of its principles to the banking sector 17 to commercial law experts,18 the aforementioned law
enforces gender balance obligations for the administration and control bodies of companies
under public administrations’ jurisdiction and those whose shares are listed on regulated
markets under the supervision of the Commissione Nazionale per le Società e la Borsa (CONSOB)
– the government authority in charge of regulating the Italian securities market – and the
Department for Equal Opportunities of the Presidency of the Council of Ministers,
respectively.19
    However, to understand if the law is effective, we must look at the related data.
    The most recent and complete data have been collected by the Inter-institutional
Observatory on the presence of women in the administration and control bodies of Italian
companies. These data were created in 2018 by the Department for Equal Opportunities of

16 See letter u) of the European Parliament Resolution of 21 January 2021 on the EU Strategy for Gender
Equality (https://www.europarl.europa.eu/doceo/document/TA-9-2021-0025_EN.html).
17 According to Whereas No. 60 of the Directive 2013/36/EU on the Access to the Activity of Credit

Institutions and the Prudential Supervision of Credit Institutions and Investment Firms which stresses that
“institutions not meeting a threshold for representation of the underrepresented gender should take appropriate
action as a matter of priority”.
18 For an analysis of the legislation before the extension see Pastore P., nt. (11), 186 ff. See also CONSOB,

Dipartimento per le pari opportunità della Presidenza del Consiglio dei ministri, Banca d’Italia, La partecipazione
femminile negli organi di amministrazione e controllo delle società italiane, 2021:
https://www.consob.it/documents/46180/46181/20210308_Ossevatorio.pdf/7f31b28d-b53b-4cdb-9309-
d30a7ddb7bcc.
19 For a detailed analysis of both previous and current legislation see Desana E. R., Massa Felsani F., Democrazia

paritaria e governo delle imprese. Nuovi equilibri e disallineamenti della disciplina, in federalismi.it, 24, 2020,
https://www.federalismi.it/nv14/articolo-documento.cfm?Artid=44012.

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     Michela Riminucci                                                       Issue 2, Vol. 15 (2022)
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the Presidency of the Council of Ministers, CONSOB, and the Bank of Italy by comparing
the gender distribution of the boards of directors and supervisory bodies of companies that
are subject to the provisions of the Golfo-Mosca Law – as said, listed companies and publicly
controlled companies – and all joint-stock companies and banks between 2011 and 2019.20
    The Inter-Institutional Observatory report showed that although the presence of women
in top management roles in Italian companies was limited in both administrative and control
bodies during the period under consideration (2011-2019), the improvement in gender
balance was the most prominent in companies subject to the Golfo-Mosca Law, thereby
attesting to this law’s effectiveness (Figures 1 and 2). Notably, in sectors outside the scope
of the Golfo-Mosca law (banks and private corporations) the participation of women at the
highest level remained stable or, at best, grew modestly: concerning administrative bodies,
the percentage of women in banks increased by around 10% (from 6.4% in 2011 to 16.6%
in 2019) and by less than 2% (from 21.7% to 23.5%) in private corporations; concerning
control bodies, the percentage of women in banks increased by more than 7% (from 10.4%
to 17.7%) and by 2% (from 19.7% to 21.7%) in private corporations.
    In contrast, for both listed companies and publicly controlled companies, there was a
significant increase: in the administrative bodies, the percentage of women in listed
companies increased by more than 29% (from 7.4% to 36.5%) and by more than 14% (from
10.7% to 25.3%) in publicly controlled companies; in control bodies, the percentage of
women in listed companies increased by more than 30% (from 6.5% to 38.8%) and by more
than 16% (from 16.7% to 33.1%) in publicly controlled companies.

       Figure 1. Proportion of Women in the Administrative Bodies.




       (Source: Inter-Institutional Observatory Report)




20   CONSOB, nt. (18).

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     Francesca Marinelli                                                                      Italian Labour Law e-Journal
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       Figure 2. Proportion of Women in Control Bodies




       (Source: Inter-Institutional Observatory Report)

   That being said, upon closer analysis, the data indicate that although the introduction of
gender quotas has produced a timely effect, the system has not been able to promote a deeper
culture change yet. In particular, according to a recent report,21 only 6.3% of the total number
of Italian companies have a woman as the managing director, while 10.7% have a woman as
the Chairman of the Board of Directors (Figure 3). Furthermore, within the Boards of
Statutory Auditors, the role of Chairman is held by a woman in 22% of all listed companies.22
In light of these data, it seems clear that – as another very recent study has shown23 – the
Golfo-Mosca Law was not able to create a virtuous circle between boards and organizations,
which could have promoted gender equality more effectively at all organizational levels.

       Figure 3. Women who are Chairman of the Board of Directors (left) or CEO (right) * Partial Data.




       (Source: Romano G., Angelino A., Maida A., Le donne ai vertici delle imprese 2020, 2020)



21 Romano G., Angelino A., Maida A., Le donne ai vertici delle imprese 2020, 2020, https://know.cerved.com/wp-
content/uploads/2020/02/PPT-Cerved_Bellisario_FEB_2020.pdf.
22 Ibidem, 20.
23 Cuomo S., Simonella Z., Governance and Gender: The Effects of the Golfo-Mosca Law, 2021,

https://www.knowledge.unibocconi.eu/notizia.php?idArt=23050.

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3. The Japanese (lack of) implementation.

    In Section 2, Italy’s implementation of the pink quotas system was analysed, and, from
the most recent data, it is clear that although this system produced significant positive effects
in terms of improving gender equality, it has not promoted a deep culture change yet. In this
context, Japan can serve as a good agent of comparison because, to this day, it remains one
of the few member countries of the OECD to not have introduced any mandatory measures
against women’s and other minorities’ underrepresentation in the workplace and society,
although similar tools have been discussed as possible solutions to these long-running issues.
In fact, the debate on positive action in Japan started around the end of the 1980s and
gradually caught the interest of many scholars in the field of law, ultimately making its way
into national legislation in the 1990s, along with other improvements and fundamental
changes for the promotion of equal opportunities.24 Currently, the terms sekkyokuteki kaizen
sochi 25 and positive action can be considered well-known. However, their legal
implementation is still weak, 26 and as mentioned above, a mandatory quota system – in
Japanese, kuootasei or wariatesei – is yet to be introduced.
    Law No. 78 of June 23, 1999, also known as the Basic Act for a Gender Equal Society
(BAGES), defined positive action as “[p]ositive provision of the opportunities [to freely
participate in activities in any fields of society and thereby equally enjoy political, economic,
social and cultural benefits] to either men or women to the extent necessary to redress gender
disparities in terms of such opportunities”. The law, then, provided the legal basis for positive
action in Articles 13 and 14 by entrusting the central Government and Prefectures, 27
respectively, with the responsibility of establishing implementation plans for policies aimed
at creating a gender-equal society. However, for example, the Basic Plan for Gender Equality
– the policy document drafted in 2000 by the Cabinet of Japan pursuant to Article 13 of the
BAGES – initially contained only broad aims, apart from the non-mandatory objective of
increasing women’s participation mainly in the Japanese Parliament (also known as the
National Diet). Further updates detailed a much more extensive catalogue of targets, also
including private companies; for instance, the fifth Basic Plan of 2020 sets the objective of
increasing women’s participation in executive positions in listed companies to 12% by 2022,
but compliance remained voluntary.
    Act No. 113 of July 1, 1972, also known as Equal Employment Opportunity Act, as
amended in 1999, added to the above-mentioned system the possibility for employers to
adopt positive actions for promoting the inclusion of women workers without violating anti-
discrimination provisions (Article 9 in the 1999 amendment, now Article 8), if necessary,

24 Araki T., Labor and Employment Law in Japan, Nihon Rodo Kenkyu Kiko, Tokyo, 2002; Sugeno K., Japanese
Employment and Labor Law, University of Tokyo Press, Tokyo, 2002; Hanami T. A., Fumito K., Yamakawa R.,
Labour Law in Japan. Second Edition, Kluwer Law International, Alphen aan den Rijn, 2015.
25 Literally, “proactive improvement measures”.
26 Kuroiwa Y., Shokuba no daibāshiti suishin to pojitibu akushon – kaizen no tame no sekkyokuteki sochi o meguru hōteki

kadai (Diversity Promotion in the Workplace and Positive Action: Legal Issues Regarding Proactive Measures for Improvement),
in The Japanese Journal of Labour Studies, 10, 753, 2021, 15.
27 Administratively, Japan is divided into 47 prefectures, which retain a certain degree of autonomy vis-à-vis the

central government.

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with the support of the central government (currently, Article 14). Act 64 of September 4,
2015, also known as the Act on the Promotion of Female Participation and Career
Advancement in the Workplace, completed the current legislative framework by making it
mandatory for companies with more than 300 regular employees to formulate an action plan
for boosting female employment (Article 8) and disclose information that may benefit
women’s career opportunities (Articles 16 and 17); however, its scope is still deemed to be
too limited.28 It is worth noting in this context that in other areas – such as for persons with
disabilities and the elderly – stricter mechanisms of positive action supported by sanctions in
the case of non-compliance are already in place.
    As mentioned in Section 1, we will not examine the fairness of positive action in-depth,
although, in Japan, discussions on its compatibility with the Constitution by analysing
previous decisions of the Supreme Court of Japan and foreign constitutionality judgments –
mainly France and Italy – are still going on.29 Regardless, looking at the developments thus
far, the introduction of mandatory quotas can be expected if the aforementioned targets are
not met voluntarily. In the Japanese debate, we can distinguish among at least three
approaches,30 namely, American-style affirmative action – now disparaged due to allegations
of reverse discrimination; 31 European-style positive action, which is now studied as a
reference; and Japanese-style positive action pursuant to the national legislation. Regarding
the latter, we can say that Japan has adopted a cautious approach of “soft” nudging to test
the waters and possibly build a national consensus before eventually introducing stricter rules
and sanctions. In the field of gender equality, however, this approach has made the process
of boosting women’s participation in the labour market in Japan painstakingly slow when
compared to the relatively quicker processes of some EU member states, such as Italy.
    Similar to Italy in the previous section, in the following paragraphs, we will analyse the
historical data pertaining to Japan32 on the proportion of women workers, especially women
in administrative and managerial positions. 33 In Japan, from 1953 to at least 1985, this
proportion kept fluctuating without showing any substantial positive change (Figure 4).




28 Kuroiwa Y., nt. (27), 15.
29 However, scholars who studied the matter concluded that it would be compatible with the Japanese
Constitution (Tsujimura M., Pojitivu akushon: “hō ni yoru byōdō” no gihō (Positive Action: Techniques for “Equality by
Law”), Iwanami Shoten, Tokyo, 2011, 97-134).
30 Tsujimura M., Sekai no pojitivu akushon to danjo kyōdō sankaku (Positive Action and Gender Equality around the World),

Tohoku Daigaku Shuppankai, Sendai, 2004.
31 Tsujimura M., nt. (30).
32 Source: Labor Force Survey of the Ministry of Internal Affairs and Communications of Japan (Historical

Data 6). Available at https://www.stat.go.jp/english/data/roudou/lngindex.html, accessed 10 October 2022.
33 Please note that, in Japan, this group includes executive positions in private companies, public workers in

managerial positions, etc. See https://www.stat.go.jp/data/roudou/pdf/shoku.pdf, accessed 10 October 2022.

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 Francesca Marinelli                                                                Italian Labour Law e-Journal
 Michela Riminucci                                                                         Issue 2, Vol. 15 (2022)
                                                                                                  Section: Theme




   Figure 4. Proportion of Women Overall Workers and Women Administrative/Managerial Workers (1953-1985).




Source: Labor Force Survey of the Ministry of Internal Affairs and Communications of Japan (Historical Data
6). Available at https://www.stat.go.jp/english/data/roudou/lngindex.html, accessed 10 October 2022.




   Since 1986, the situation has started to steadily improve – albeit slowly – although the
number of women in administrative positions continues to experience declines depending
on the year (Figure 5). If we look at the variation from the previous year, apart from a few
exceptions (1954, 1971, 2008, 2014, and 2017), it has always been well under 1%, if not
negative. The regular increase might as well be connected to the simple fact that more and
more women are staying single and investing in their careers, and no significant acceleration
can be seen after the implementation of the main legislative reforms.




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 Francesca Marinelli                                                                Italian Labour Law e-Journal
 Michela Riminucci                                                                         Issue 2, Vol. 15 (2022)
                                                                                                  Section: Theme




Figure 5. Proportion of Women Workers and Women Administrative/ Managerial Workers (1986-2021).




Source: Labor Force Survey of the Ministry of Internal Affairs and Communications of Japan (Historical Data
6). Available at https://www.stat.go.jp/english/data/roudou/lngindex.html, accessed 10 October 2022.


  In Japan, the discourse on equality has traditionally been framed as an employment policy
– a way to counter the labour shortage caused by the declining birth-rate and aging
population – instead of something that needs to be guaranteed in the framework of human


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     Francesca Marinelli                                                                 Italian Labour Law e-Journal
     Michela Riminucci                                                                          Issue 2, Vol. 15 (2022)
                                                                                                       Section: Theme




rights.34 However, diversity in general has started becoming more and more important in
recent years, following a slow shift towards sustainability in a broader sense under
international pressure.35 It is really a waste of potential – for the country’s economy as well
– as long as unjustified contractual discrimination against women and other minorities
continues in the form of employment in lower-ranking positions, lower salaries, and so on.
Therefore, as mentioned above for Italy, pink quotas and related instruments, despite being
temporary and certainly not perfect, can be essential in pushing for a culture change, similar
to what happened in Japan in the 1980s with the removal of retirement and promotion
mechanisms that negatively affected women,36 and in fostering a fairer labour market for all,
considering that the recent introduction of provisions against indirect discrimination did not
produce the expected results.37
    In Japan as well, women are one of the categories that were impacted the most by
COVID-19 because of their weaker position in the labour market.38 Moreover, considering
that the economy, in general, has experienced a serious setback, pink quotas and similar
instruments can be seen as inexpensive ways to stimulate economic growth. Nonetheless, it
is critical to adequately coordinate them with the existing framework – focusing on the issues
of work-life balance and ryōritsu, i.e., the difficulty of juggling full-time work and family life,
which affects both men and women – so that the new principles do not end up being
substantially ineffective. The successful implementation of positive action policies seems to
eventually boil down to the value system promoted by the national consensus, and economic
arguments will only be used to convince the more reluctant players of the “rationality” of the
choice. Therefore, a bolder approach by the government and the legislator in involving the
stakeholders will definitely be beneficial for the formulation and implementation of more
effective reforms.


4. Conclusion.

    After examining and discussing how the gender quota system has been implemented in
Italy and Japan and analysing the data, we strongly believe that the system’s advantages
outweigh its disadvantages. In fact, if diversity quotas are a stretch – we can all agree that
they are a means, not an end – they can arguably be considered one of the most immediate
and inexpensive solutions to tackle the phenomenon of discrimination in the workplace,
which became even more relevant during the COVID-19 pandemic. Therefore, gender


34 Kuroiwa Y., nt. (27), 15; Sakuraba R., Employment Discrimination Law in Japan: Human Rights or Employment
Policy?, in Blanpain R. (ed.), New Developments in Employment Discrimination Law, Kluwer Law International, Alphen
aan den Rijn, 2008.
35 See, for example, the Ministry of Foreign Affairs of Japan’s page on Business and Human Rights:

https://www.mofa.go.jp/fp/hr_ha/page23e_000551.html, accessed 10 October 2022.
36 Upham F. K., Law and Social Change in Postwar Japan, Harvard University Press, Cambridge, 1987.
37 Riminucci M., Indirect Discrimination in Japanese Law: A European Perspective, in The Italian Law Journal, Special

Issue, 55-68, 2018.
38 Riminucci M., Rising Inequalities in Japan in the Wake of the Corona Shock, in Pandemia, post pandemia e diritto del

lavoro. Quali conseguenze durature?, Editoriale Scientifica, Napoli, 2022.

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     Francesca Marinelli                                                              Italian Labour Law e-Journal
     Michela Riminucci                                                                       Issue 2, Vol. 15 (2022)
                                                                                                    Section: Theme




quotas especially might represent a legislative technique under the bigger umbrella of positive
action – created to “correct deficient system, not deficient people”39 – that really have the
potential to change the rules of the game.
    Indeed, the data have shown that the gender quota system has not been sufficient to break
the glass ceiling for women (and of course it cannot do that, especially in this extraordinary
period of economic crisis), however, from our perspective, this does not mean that the
system is not working. On the contrary, its partial failure is showing us that to change cultural
attitudes, we need more time and stronger legal measures. Therefore, we hope that the
mandatory gender quota system is not only promoted in the future as recently done by the
EU (the best course of action for Japan would be to follow the EU’s example introducing
mandatory gender quotas) but also extended to other fragile and underutilized categories by
expanding the scope of the quota system from sex discrimination to other forms of
discrimination, such as those based on gender in a broader sense,40 disability, age, etc. As
mentioned earlier, even if the already extensive research on the benefits of a diverse and
inclusive economy remains inconclusive, gender quotas continue to provide a space for
women at no additional cost, as demonstrated by the data discussed in our paper. That is
why we believe that they are the right tools to develop a more inclusive labour market,
notwithstanding their limitations.




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 Francesca Marinelli                                                         Italian Labour Law e-Journal
 Michela Riminucci                                                                  Issue 2, Vol. 15 (2022)
                                                                                           Section: Theme




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https://doi.org/10.6092/issn.1561-8048/15628                                                             84
 Francesca Marinelli                                                      Italian Labour Law e-Journal
 Michela Riminucci                                                               Issue 2, Vol. 15 (2022)
                                                                                        Section: Theme




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Copyright © 2022 Francesca Marinelli, Michela Riminucci. This article is released under a
Creative Commons Attribution 4.0 International License




https://doi.org/10.6092/issn.1561-8048/15628                                                          85
