www.debito.org

By ARUDOU DEBITO
The Japan Times: Nov. 30, 2004
Courtesy http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?fl20041130zg.htm

"I don't like black people! Shoo!"

This is what Steve McGowan, an African-American resident of Kansai for nearly a decade, alleges was said to him last October at a nearby eyeglass shop.

A past customer (he had accompanied his Japanese wife purchasing her glasses there), McGowan had been impressed enough to bring along a South African friend as a potential customer.

This time the owner, seeing two black people outside window-shopping, met them at the door to bar their entrance. "Move to the other side of the street! Don't touch my store window!" McGowan says he was told.

McGowan has since filed a damages suit with Osaka District Court.

In a land of proliferating "Japanese Only" signs (http://www.debito.org/roguesgallery.html), with businesses excluding "foreigners" first and answering questions later, this sort of thing could happen to you.

So what do you do? This week's column offers advice -- not only on how to resolve conflicts, but also to build a watertight case should you need to go to court.

But first a caution: This should not encourage hypersensitivity. Just because, say, somebody won't sit next to you on a subway, or a waitress will only talk to the Asians at your table, doesn't mean you should make a federal case of it.

I am addressing situations where you are denied service afforded everyone else -- because some establishment expressly has a "thing" about you being (or looking) foreign. It must be a clear case of racial discrimination or you will come off as petty in public.

That said, follow these steps:

1) CONFIRM THE PROBLEM THEN AND THERE

When you are in a situation, make sure it is not simply a misunderstanding. Confirm that your treatment is because of something you are, not something you inadvertently did. The less they can blame you for your actions (as opposed to your skin color), the stronger your case.

Talk to the management, calmly if possible, and see what's eating them. If it somehow becomes a heart-to-heart, do more listening than talking. Then find ways to ensure what happened to you won't happen to anyone else.

Still, sometimes where there is smoke there is fire, and legitimate cases of discrimination should not be ignored. If they are passing off your ill-treatment as simply "policy towards foreigners," start gathering evidence. If there is, say, a "Japanese Only" sign, snap a photo with your keitai cellphone (in an establishment open to the public, it's fair game). Then ask for a change in policy (it can happen).

Still, most refusals will not be so clear or rescindable, which means you must:

2) RECONFIRM THE PROBLEM WITH A NATIVE SPEAKER

Come back later when heads are cooler with a Japanese. Many discriminators will claim you linguistically "misunderstood" them and evade responsibility. Have the native speaker confirm your version of the facts of the case.

Accrue enough facts to show a third party that discrimination incontrovertibly happened. If, after a second attempt at negotiation there is no satisfactory outcome:

3) RUN YOUR STORY BY A LAWYER

Conflict resolution is why the legal profession exists, so visit the local Bar Association ("Bengoshikai") for a referral. Initial counseling will cost around 5,000 yen per 30 minutes (fees depend on the lawyer, and by law they must make them clear in writing beforehand; if not, go elsewhere).

If you feel the hiring fee is right and the counsel is trustworthy,

4) HAVE THE LAWYER NEGOTIATE FROM NOW ON

Now the discriminator will see you mean business, often caving in with an apology and a peace offering. If honor has been satisfied, then okay, you've done your job. Management will think twice before discriminating in future.

However, experience dictates the real bigots (which exist in every society) will maintain they've done nothing wrong and stand their ground. So stand yours. But be prepared for the fallout when you:

5) FILE A LAWSUIT IN DISTRICT COURT

Suing anywhere is a stressful activity, but particularly so in Japan.

Some will declare that Japanese don't sue. Wrong. According to the government, courts receive over five million cases per year (which is why the Justice Ministry is making it easier for lawyers to pass the Bar)..

Others will claim "cultural imperialism," as if your fighting back is forcing "foreign attitudes" on Japanese society. Or that if you don't like it here, go home, etc. etc.

Many will doubt you suffered any real damage. But in a Civil Court case (not criminal -- this kind of discrimination is not a crime in Japan), you have no other choice. You must sue for either monetary damages (hard to claim if you never even got to spend your money) or; mental distress (which is difficult to put a price on).

Ultimately, you must:

6) DECIDE HOW FAR YOU WANT TO GO WITH THIS

Court cases in Japan take years. If you are shooting for a landmark legal precedent, even decades. Don't expect to recoup your investment. The benchmark for racial discrimination is between 1 million yen and 2 million yen damages -- a mere dent in the discriminator's balance sheet.

Yet anything you get, either awarded by a judge or reached as an out-of-court settlement, will be largely consumed by legal fees.

So when you think you've done enough, close the case.

CONCLUSION: IF YOU HAVE A CASE, SUE

As I said above, racial discrimination in Japan is not illegal because there aren't actually any laws against it.

And the government will not pass those laws because, they told the U.N. in October 2001, Japan already has an effective judiciary for redress:

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"5 (1) ...We do not recognize that the present situation of Japan is one in which discriminative acts cannot be effectively restrained by the existing legal system and in which explicit racial discriminative acts, which cannot be restrained by measures other than legislation, are conducted.

"Therefore, penalization of these acts is not considered necessary."
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(http://www.debito.org/japanvsun.html)

So you got a problem? Sue.

Even the government says that you should.

Back to Steve McGowan's case. After following the above guidelines, McGowan returned to the eyeglass store with your correspondent and reconfirmed the owner's stance. Yes, the owner has a "thing" about black people, thanks to some experiences in Germany. And he did bar McGowan entry. Got it. On tape.

So readers, if you face a situation, try to resolve things extralegally. But if you're facing a bonafide bigot, build a case and put the lawyers to work. It's the only legal means we have to restrain and deter discriminators.

Fortunately, court precedent is on your side.

Four suits involving a Brazilian, a Pakistani, a Chinese, a German, an American, and a naturalized Japanese resulted in victories for the plaintiffs.

If there are more lawsuits in future clogging the courts, the government might cave in too, and finally make racial discrimination a criminal offense.

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The Japan Times: Nov. 30, 2004
Send your comments to: community@japantimes.co.jp
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Arudou Debito
Sapporo
debito@debito.org
http://www.debito.org
http://www.debito.org/japaneseonly.html
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