Discrimination law in the United States is more evolved than anywhere else on Earth. The leading treatise on US employment discrimination law (by Barbara Lindemann and Paul Grossman) runs to two volumes and 3,300 pages. By now, decades after America’s civil rights movement gave rise to tough, groundbreaking workplace discrimination laws, American jurisprudence has refined discrimination law concepts more complex than analogous doctrines anywhere else. Stateside employment discrimination disputes can implicate ideas as esoteric as "gender stereotyping," "third-party retaliation," "sex plus" discrimination against a protected "sub-class," "differential," "single-group" and "situational" validity in statistical adverse-impact analysis, and the requirement of a causal connection between an adverse employment action and a claim of "retaliatory animus."
In response to increasingly rarified discrimination doctrines, American employers have engineered sophisticated tools to help eradicate illegal discrimination from their workplaces. These days, US employer best practices for fighting discrimination include, for example: imposing increasingly tough work rules against workplace discrimination, offering comprehensive discrimination training, implementing detailed reporting and whistleblowing mechanisms, isolating alleged targets from alleged discriminators, running statistical adverse-impact analyses, and project-managing internal investigations into specific allegations and incidents.
Because sophisticated anti-discrimination tools like these have evolved to such an advanced state in the US, an American multinational might assume that its kit of state of the art anti-discrimination tools is ready for export to countries with simpler, less-evolved employment discrimination rules. After all, these days most countries do impose some laws against workplace discrimination, but no country’s body of employment discrimination law is as intricate as that of the United States, and enforcement of discrimination laws in many countries is weak. As one example, a recent posting to an online human resources forum by someone calling himself "Tokyo-Based HR Consultant" pointed out that "we know companies are not supposed to" discriminate in Japan, but "in reality, everybody knows… that such discriminatory practices exist here."
So surely a carefully thought-out, robust American-style approach to fighting workplace discrimination must be a best practice everywhere around the world—right? Perhaps not. Prohibiting illegal workplace discrimination is of course a vital and valid objective in every country. Common-law jurisdictions, in particular, impose sophisticated laws that ban employment discrimination in ways reminiscent of our US approach. Indeed, these days even civil law jurisdictions, particularly the Continental European states subject to EU anti discrimination directives, impose strict workplace discrimination laws that in some respects are even stricter than corresponding American laws. As one example, a French law (decree no. 2011-822 of July 7, 2011) requires employers of 50 or more employees to implement written gender equity action plans.
Still, the challenge in exporting US anti-discrimination practices and policies to countries with less-developed equal employment opportunity doctrines is that discrimination statutes and cultural perspectives outside the US differ, in their particulars, from the US domestic approach. This can make a multinational’s US-crafted anti-discrimination toolkit, when exported, inappropriate and even suspect. Sending US discrimination compliance tools to foreign workplaces is a bit like a Swiss watchmaker bringing his watchmaking equipment along on a campout: Overly refined tools can be useless in a less sensitive environment.
When adapting US-honed anti-discrimination tools for use abroad (or globally), account for three issues: Context, protected status and "extraterritorial" effect. The rest of this discussion on cross-border anti-discrimination initiatives addresses these three issues.
1. ContextThe first step in exporting or "internationalizing" any American-style approach to fighting workplace discrimination is to adapt the US approach to different environments overseas. Workplace discrimination laws loom unusually large in the US context; the other side of that coin is that overseas, discrimination laws tend to be less central in day-to-day human resources. Adjust accordingly. Be sensitive to local context. Keep discrimination compliance in local perspective.
Three matters specific (if perhaps not unique) to the US environment explain why discrimination compliance is less of a priority outside the states—employment-at-will, demographics, and history:
- Employment-at-will. The US is the world's only notable employment-at-will jurisdiction. US employment law tends not to offer unfairly fired workers any viable cause of action for wrongful discharge (outside the labor union context and outside the state of Montana). American-style employment-at-will is in essence a legal vacuum, and nature abhors a vacuum. What rushed in to fill this particular vacuum is US discrimination law. Indeed, some American lawyers argue that discrimination law now amounts to a sort of de facto US wrongful termination regime. That is, there is a thesis that the US employment-at-will doctrine fuels discrimination litigation in the employment dismissal context. As support for this thesis, look east to Bermuda or north to Canada. Bermudian and Canadian "human rights" laws, on paper, are quite similar to US employment discrimination statutes. But the percentage of contested and litigated Bermudian and Canadian employment dismissals that lead to "human rights" claims is tiny when compared to the percentage of American employment dismissal lawsuits that assert a discrimination theory. For an aggrieved fired Bermudian or Canadian, having to meet the burden to prove a "human rights" or discrimination claim is much tougher than merely establishing a wrongful dismissal/inappropriate notice claim.
- Demographics. America's unusually heterogeneous population makes for broad racial diversity in US job applicant pools and workplaces. In the US context, demographic diversity makes laws against racial and ethnic employment discrimination vital. Legislative history shows that US Congress adopted our discrimination laws to "stir" the American "melting pot." But many other countries have homogeneous populations. There is no "melting pot" in most (albeit not all) countries in Asia, Africa, Europe and Latin America. Countries from Finland to Haiti to Paraguay to Mali to China, Japan, Korea and beyond are essentially just one race. Because race discrimination in these countries is not a widespread social problem, in these countries fighting workplace race discrimination is not a top human resources priority.
- History. America's unusually troubled past with its overt racial and ethnic discrimination—slavery, lynchings, displacements, massacres of indigenous people—is a conspicuous scar on our history, and sparked our civil rights movement that led to our employment discrimination laws. But American history is unique to the US. The historical underpinnings of American discrimination laws simply are a non-issue abroad.
The point is that employment-at-will, demographics and history make our US discrimination laws vital, but these issues are much less significant in most places abroad. Therefore, foreign workplace discrimination laws carry correspondingly less baggage, and discrimination compliance plays a more modest role in foreign human resources administration. American multinationals operating abroad might ratchet down their US discrimination law compliance strategies to account for this very different context.
2. Protected StatusIn a discrimination policy or provision, protected status is everything. After all, every employer can, and does, discriminate every day against employees in non-protected groups. Employers routinely discriminate against poor performers, criminals, smokers, current drug users, people with bad credit, the lazy, the incompetent, the uneducated and undereducated, the illiterate, graduates of less-prestigious schools, those with poor grades and test scores, and many other non-protected groups. Indeed, discrimination in employment is so ubiquitous (and legal) that many employers take pride in being "discriminating" in their standards. All that is illegal, of course, is discrimination against people because they belong to one of a dozen or so protected groups.
Therefore, well-drafted US discrimination policies and provisions always list the specific protected traits or statuses against which the employer prohibits discrimination—usually these traits are gender, race, religion, national origin, age, disability, veteran status, genetic makeup, sexual orientation and the like. US employers’ lists usually track the categories protected under American state and federal law.
Listing the protected statuses in a discrimination policy or provision is essential in the domestic US context because failing to list these traits would result either in an over-broad discrimination policy that prohibits discrimination on every conceivable ground, or in an inscrutable policy that forces workers to go research what categories are, and are not, "protected by applicable law."
But the logic behind listing protected traits gets murkier in the international context, because protected groups differ so much by jurisdiction. When drafting a cross-border workplace anti-discrimination rule (like a global anti-discrimination policy or an anti-discrimination provision in a global code of conduct), the problem is that local lists of protected traits differ radically across jurisdictions. Gender, religion and race are protected in most places, disability and sexual preference are increasingly protected, "gender identity" and "intersex status" are protected in Australia, part-time status is protected in Europe, "traveler" (homeless) status is protected in Ireland, HIV-positive status is protected in South Africa and Honduras, infectious-disease-carrier status is protected in China, caste is protected in India, and family status and social origin are protected in Chile. Political opinion, views and beliefs are protected in Argentina, Europe, El Salvador, Mexico and Panama. Illness (in addition to disability) and language are protected in Guatemala and Peru. Economic circumstances are protected in Argentina, Guatemala and Mexico. Criminal record is protected in British Columbia, Canada. Rural (versus urban) origin is protected in China. Meanwhile, the US and its states protect some quirky traits that probably no other jurisdiction protects, such as veteran status, workers’ compensation filings and genetic predisposition. And then there are the jurisdictions like Argentina and Belgium with legal doctrines that actually let courts make up their own protected groups.
So a central question in drafting a border-crossing anti-discrimination rule is: Which protected traits or statuses merit explicit mention in the multinational's global discrimination policy? Which traits or statuses can a multinational afford to exclude? Can a multinational drafting a cross-border discrimination policy ever refer expressly only to some groups protected by law in certain jurisdictions without naming all groups protected everywhere?
There are no easy answers. Because whether or how to list protected statuses is the central challenge to drafting a global discrimination policy or provision, different employers address this problem in different ways. One common approach is for the global discrimination provision to list the US protected groups and then to add the "catch-all" clause "and any other category protected by applicable law." But using this "catch-all" clause in a global discrimination policy suffers from three serious shortcomings—at the same time, the "catch-all" clause is too vague, too narrow and too broad:
- Too vague. Listing some protected traits and then using the catch-all clause ("and any other category protected by applicable law") in a global discrimination provision can be vague, impractical and insensitive, because this clause both downplays the importance of local law and it forces workers to research what "applicable law" is. This clause is actually dangerous because it signals the employer's lack of patience with local rules. In Australia, for example, a global anti-discrimination policy that fails to address Australian local discrimination law has been held inadequate. Cf. Richardson v. Oracle Corp. Aust. Pty. Ltd.,  FCA 102 (Aust.) at 163, 164 (Australia-specific "elements were absent from [a multinational’s] global online [discrimination/harassment] training package…, the omission of these important and easily included [Australia-specific provisions in the multinational’s] statements of its own policies is a sufficient indication that [the multinational] had not…taken all reasonable steps to prevent sexual harassment").
Too narrow. At the same time, using this catch-all clause in a global discrimination policy can be too narrow—it can fall short. Inserting this clause into a discrimination policy demotes all the unnamed protected groups (the groups falling under the catch-all) to a second-class tier of protection. Invoking the canon of construction expressio unius est exclusio alterius (to express one thing is to exclude another), a court could and indeed perhaps should reason that this catch-all clause protects the unnamed protected traits (statuses) less than it protects the expressly named traits. Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107-11 (2012).
Imagine, for example, a US age discrimination lawsuit against a US employer whose anti-discrimination policy somehow happened to prohibit discrimination on the grounds of "gender, race, disability, religion, genetic predisposition, veteran status and any other ground protected by applicable law." The age discrimination plaintiff’s lawyer would surely argue this policy’s conspicuous omission of "age" from its list of protected statuses betrays this employer’s ambivalence toward eradicating age discrimination from its workplace. For this employer to have left "age" out of its policy’s listing of named protected traits all but invites a claimant’s lawyer to argue the omission evidences the employer’s antipathy toward members of the omitted group. American employment lawyers, therefore, would strongly caution against listing (in drafting a discrimination policy) some but not all of the key legally protected traits or statuses. An employer that lists some protected groups in a discrimination policy should go ahead and include all of them.
Now extend this analysis abroad. Imagine for example an Irish plaintiffs' employment lawyer representing an aggrieved fired "traveler" or a British Columbia lawyer representing a rejected felon, and arguing that the omission of "travelers" or "criminals" from a multinational’s list of protected traits in a global anti-discrimination provision evidences the employer’s antipathy toward travelers and criminals.
Too broad. While the "catch-all" clause approach in this respect is too narrow, at the same time this approach can also be too broad, or go too far, because this approach extends named protected groups into jurisdictions where they are not otherwise protected or even appropriate. For example, US-headquartered multinationals commonly list veteran status and, increasingly, genetic predisposition in their global anti-discrimination policies and code of conduct provisions, because these two groups are protected under US law. But veteran status and genetic predisposition make absolutely no sense to protect outside the US—these traits tend not to be protected abroad, and employees overseas tend not to consider them as analogous to the other protected categories.
Separately, to include "age" in a global anti-discrimination provision raises real problems in jurisdictions where the employer imposes mandatory retirement or age ranges in staffing certain positions.
There is no "magic bullet" here—no foolproof way to draft a border-crossing anti-discrimination provision that works well everywhere. Each multinational needs to think hard about the listing-protected-traits issue internationally, and then select a less-than-ideal approach. One less-than-ideal approach is to list protected groups separately for each jurisdiction. But of course that approach requires crafting separate local discrimination provisions (or separate discrimination policy or code of conduct riders or appendices), and so that approach undercuts the advantage of issuing a single global policy. Another less-than-ideal approach is to keep the global anti-discrimination policy silent as to all protected groups, and simply to prohibit "illegal" discrimination that violates "applicable law," using a clause that says something to the effect of "the company's policy is to provide equal employment opportunities among all groups, of whatever classification, protected by applicable law." This approach, though, yields a vague policy that forces staff to do their own legal research.
3. "Extraterritorial" EffectAmerica’s major US federal (and apparently some state) discrimination statutes reach abroad, to a limited extent: They prohibit a US "controlled" (such as a US-headquartered) employer from discriminating, on any ground protected by American law, against American citizens who work outside the US, be they working overseas as local hires or as expatriates. US-based multinationals need to factor this mandate into their global anti-discrimination policy and strategy.
But be careful not to let the "tail wag the dog" here, as this issue is deceptively narrow. Most American-headquartered multinationals employ relatively few Americans among their overseas workforces (although there are exceptions, such as US companies that provide niche services like overseas security under US government contracts or subcontracts).
Of course, it might be overkill to extend a full-blown US-style anti discrimination policy to all staff working outside the US only to cover a tiny percentage of American citizens in an organization’s foreign workplaces. So consider a more nuanced approach. Focus on complying with US discrimination laws in a way targeted to the overseas managers of US citizens working abroad, not necessarily targeted to the protected American citizens themselves.