Is Nintendo Discriminating against Japanese Indie Developers?

Just as the Xbox One begins wining favor in the indie community by announcing self-publishing and the console’s ability to double as a cheap development kit, Nintendo is leaving a sour taste in people’s mouths by what some people are calling a discriminatory practice.

In a recent bid to get more indie developers on board with Unity for the Wii U and Nintendo Web Framework, Nintendo offered to send out free development kits to indie developers, unless you happen to live in Japan.

In a questionnaire from the Game Developers Conference, it’s specified just above the application, in both Japanese and English, “We are not accepting applications from developers located in Japan at this time.”

This has led many Japanese to wonder why Japan was the only company excluded from Nintendo’s seemingly generous offer to send development kits out to indie developers.

The policy is discriminatory on the basis of national origin according to Title VII of the Civil Rights Act of 1964, which states, “limiting, segregating or classifying employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect his status as an employee because of such individual’s race, color, religion, sex or national origin.

While the application isn’t for employment at Nintendo, it is an attempt to contract more developers to develop games for its property. Which may mean Nintendo might have to provide legitimate reason why Japanese exclusion was necessary according to the following from the Equal Employment Opportunity Commission:

(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.

(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.

(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.

I’ve reached out to Nintendo regarding its policy and will update with information when, or if, it responds. Do you think Nintendo’s exclusion of Japanese indie developers is discriminatory? Why or why not?