SNA (Tokyo) — On October 19, 2020, the Osaka District Court ruled against a cabaret owner suing a bar hostess for ¥2 million (US$15,200) for dating a coworker. The plaintiff had made male and female employees sign a contract prohibiting any romance between employees, stipulating that they pay that amount if they failed to observe the ban.

Before going further, we should clarify a few aspects of the mizushobai (liquor trade) service industry, which focuses on offering the attentions of attractive women, mostly to men.

There are many varieties of mizushobai, with varying levels of sex or sexuality involved. One of these varieties is kyabakura (cabaret clubs), which charge patrons by the hour just to stay inside the facility. The customer sits next to the kyabajo (cabaret woman) of their choice for conversation, flirting, or, depending on the establishment, sexual attention not to the point of gratification.

Some 60,000 kyabakura and host clubs operate throughout the country, according to annual police data. Kabukicho in Tokyo Shinjuku is famous for collecting a great number of such establishments in one area.

Our case in the Osaka area involved a kyabakura operator which prohibited any romantic relationships between employees and demanded that a kyabajo pay for violating the rule. This company ran several kyabakura.

The company explained that the job of a kyabajo was to entertain male customers and to let one or more pretend to be in a love relationship with her. Dating a male employee for real would throw cold water on customer fantasy, leading them to stop patronizing the establishment, costing it money and harming its reputation.

The defendant and plaintiff signed the employment contract in December 2017, and the following September the defendant violated the agreement and began dating one of the assistant managers. Both parties readily admitted to the relationship.

Initially, the cabaret owner decided not to demand the defendant pay the ¥2 million fine, but instead to write an apology letter that included the following promises;

–The defendant would tell nobody else about her relationship with the assistant manager.
–The defendant agreed to have her December 2018 pay suspended for three months.
–The defendant would consult with and report to plaintiff about her life with the assistant manager.
–The defendant would not go out publicly with the assistant manager in cities where the plaintiff had establishments.

The defendant subsequently violated the agreements in the apology letter as well, telling other employees about her romance with the assistant manager. She never consulted with or reported to the plaintiff about her relationship. They were witnessed walking together in the cities in question.

The cabaret owner thus sued her in Osaka District Court for violating both the agreement and the promises in the apology letter.

The court, however, ruled the agreement null and void and judged that she had not failed to fulfill her duties in the employment contract simply because she was dating a fellow employee. The court’s based its decision to throw out the claims on two articles in the law.

Article 16 of the Labor Contract Act prohibits what is called baisho yotei, a contract term that proscribes a monetary penalty for breach of a labor contract, or establishes the amount of compensation for loss or damage in advance. In effect, it means an employer cannot insert into a contract a damages amount which rightly should be decided by a court.

Moreover, Article 90 of the Civil Code proscribes any judicial act in violation of kojo ryozoku. This commonly heard but tricky to translate expression refers to “public policy doctrine,” or the generally-accepted social norms which underpin the nation’s legal system. The court found that the decision to enter into a romantic relationship with another adult falls under the domain of personal freedom, and is not the business of an employer.

However, the judgment did not go so far as to say that any anti-dating rule is illegal. The court stated that a ban which was limited in scope and allowed for serious dating would not necessarily violate kojo ryozoku, and might possibly be an acceptable agreement between employer and employee.

In another case, the Tokyo District Court found in January 2016 that damages could be awarded based on such a contract only if the entertainer had a clear intention to cause damage to her talent agency when she slept with a fan. That verdict noted that entering into a sexual relationship was one aspect of the right to pursue personal happiness.

Prohibiting love relationships does seem to represent an unacceptable violation of what is the ultimate personal prerogative, and these verdicts seem proper in that regard.

Up until about a decade ago, celebrity “idols” were routinely prohibited from dating and summarily fired when found out. This situation is improving these days as awareness of their rights grows.

Management may have an interest in maintaining customers’ fantasy love relationships, yet workers must have protections for their own personal lives.

For our full news coverage, become a Shingetsu News supporter on Patreon and receive our daily “Japan and the World” newsletter.