A “zero tolerance” stand on illegal discrimination may be appropriate for US domestic employment operations. But very different equal employment standards abroad require a more nuanced approach internationally.
Discrimination law is more evolved in the United States than in any other jurisdiction. By now—decades after America’s tough workplace discrimination laws came into force— discrimination jurisprudence under US case law has refined such esoterica as, for example: “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 a requirement of a causal connection between an adverse employment action and a claim of “retaliatory animus.”
In response to increasingly intricate discrimination rules, American employers have engineered sophisticated tools for promoting equal employment opportunity. Best practices include, for example: imposing tough work rules against discrimination; offering comprehensive EEO training; implementing detailed reporting mechanisms; running statistical adverse impact analyses; and pursuing thorough internal investigations into specific allegations and incidents. US EEO tools have become so important domestically that an American multinational could assume its antidiscrimination tools are state-of-the-art, ready for export to workplaces abroad. After all, most countries now impose some laws against workplace discrimination. Surely a well-developed, robust American-style approach against discrimination must be a good practice everywhere—right?
Perhaps not. Prohibiting illegal discrimination is a vital and valid objective everywhere. Common-law countries, in particular, impose antidiscrimination regimes reminiscent of the US approach. Even so, outside the US, discrimination laws and cultural perspectives differ enough that a US-crafted EEO initiative can seem divisive, even legally suspect. US-honed antidiscrimination tools need retrofitting for use abroad. Adapt them to address four issues: Context, protected status, “extraterritorial effect,” and affirmative action.
- Context. The first step in internationalizing any US-centric approach to fighting discrimination is to contain it within a context where it may play a smaller role. Discrimination and EEO loom especially large in the US, as compared to elsewhere, for three reasons:
- Employment-at-will. As the world’s only major employment-at-will jurisdiction, the US generally does not offer unfairly fired workers a cause of action for wrongful discharge (outside the contractual and union contexts, and outside the state of Montana). Employment-at-will is a legal vacuum, but nature abhors a vacuum. What has rushed in to fill this one are American discrimination laws, which now amount to a sort of de facto US wrongful termination regime.
- Demographics. America’s highly heterogeneous population means broad racial diversity in US job applicant pools and workplaces. Demographic diversity makes laws against racial and ethnic discrimination more vital stateside than in the many (albeit not all) other countries with more homogeneous populations.
- History. America’s unusually troubled history of overt racial and ethnic discrimination—slavery, lynchings, displacements and massacres of indigenous people—sparked the US civil rights movement and spawned American employment discrimination laws. American history is unique to the US.
To the extent that these three factors are less significant abroad, foreign discrimination laws carry correspondingly less baggage. Outside the US context, a workplace EEO policy, while important, may play less outsize a role in human resources administration. Adjust accordingly.
- Protected status. Well-drafted US EEO provisions list the specific traits against which the employer does not tolerate discrimination—gender, race, religion, national origin, age, disability, veteran status, etc. Listing each trait makes excellent sense in the US context: Failing to list traits would result either in an over-broad policy that prohibits discrimination on every conceivable ground, or in an inscrutable policy that forces workers to research what categories are “protected by applicable law.” As to a cross-jurisdictional policy, however, the logic behind listing protected traits gets murkier, because countries’ lists of protected traits differ radically from jurisdiction to jurisdiction: Gender and race are protected in most countries; sexual preference is increasingly common; “political opinion” and part-time status are protected in Europe; “traveler” status is protected in Ireland; HIV-positive status is protected in South Africa; caste is protected in India; and some jurisdictions protect family status, language, even “social origin” or “wealth.” Which traits merit mention in a multinational’s global policy, and which should be excluded? A common approach among US-based multinationals is for a global discrimination policy to list the US protected groups and then to add the catch-all clause “and any other category protected by applicable law.” But the “catch-all clause” approach in the global policy context, it could be argued, may suffer from three shortcomings:
- It is arguably vague, impractical and insensitive—this approach in the global context forces workers to research “applicable law,” and it signals the employer’s lack of interest in local practices.
- It arguably does not go far enough—this approach in the global context demotes the unnamed protected groups (those falling under the catch-all) to a second-class tier of protection. Under the canon of construction inclusio unius est exclusio alterius (to include one thing is to exclude another), a court could assume the employer protects the unnamed protected traits less. Imagine, for example, an age discrimination lawsuit against a US employer whose policy prohibited only discrimination on the grounds of “gender, race, disability, religion or any other ground protected by applicable law.”
- It, at the same time, arguably goes too far—this approach in the global context extends the named protected groups into jurisdictions where they are not otherwise protected or even appropriate. For example, US multinationals commonly list “veteran status,” but that category makes no sense to protect outside the US. And listing “age” raises real problems in jurisdictions where an employer imposes mandatory retirement. (See our Global HR Hot Topic for Aug. 2007.)
There is no “magic bullet” here. One approach is to list protected groups separately for each jurisdiction—but that requires separate local discrimination policies, or at least separate riders, and so undercuts the advantage of a single global policy. Another approach is to keep the global policy silent as to protected groups and simply prohibit “illegal” discrimination that violates “applicable law”—but, again, that is vague and it forces workers to do legal research.
- “Extraterritorial effect.” The major US federal (and some state) discrimination statutes reach abroad, to a limited extent: They prohibit a US “controlled” employer from discriminating against US citizens who work outside the US, be they local hires or posted expatriates. US multinationals need to factor this mandate into any global EEO strategy. But this issue is deceptively narrow. Most multinationals knowingly employ relatively few US citizens overseas, rarely more than 3 percent of their outside-US workforces and often closer to 0 percent. Extending a full-blown US-style antidiscrimination policy to everyone outside the US only to reach a small percentage of US citizens is overkill. Consider a customized approach focused on complying with US discrimination laws targeted to US citizens.
- Affirmative action. Some global EEO programs address affirmative action, known in Europe as “positive discrimination.” There are, indeed, compelling reasons to promote affirmative action internationally: US federal government contractors bear affirmative action obligations; South Africa requires affirmative action plans; some European jurisdictions impose quotas of women on boards of directors; and jurisdictions from India to Brazil to Germany impose limited affirmative action obligations, such as regarding the disabled. However, in certain jurisdictions affirmative action can be illegal discrimination, to the extent that favoring minorities requires disfavoring the majority. The best solution here is to confine affirmative action to local efforts. A global EEO policy should stay open-ended on affirmative action, either omitting references to it entirely or else mentioning local “positive discrimination” initiatives “consistent with applicable law.”
Best Practices Tip:
Never export a US domestic discrimination initiative to overseas workforces unchanged. Modify EEO strategies for the various protected groups, the different cultural nuances and the differing levels of protection overseas.