Equal employment opportunity initiatives such as policies, procedures and code of conduct provisions on discrimination, harassment and diversity have long been vital to domestic American employers. Now, with the global economy, the equal employment issue has grown more international than ever before. As US-based multinationals globally align an increasing list of their human resources policies and “offerings,” cross-border efforts at ensuring equal employment opportunities become increasingly vital.
But America’s laws on employment discrimination, harassment and diversity are unique in the world. The means that American employers’ domestic US EEO programs, tools and code of conduct provisions can seem out-of-step with the local discriminationrelated initiatives of local employers in most jurisdictions outside the US.
This article is a toolkit for a US-based multinational headquarters that needs to expand or improve its EEO (discrimination, harassment, diversity) initiatives regionally or worldwide. In part 1 we address global discrimination programs generally and we then cover two particularly-troublesome discrimination sub-topics—global age discrimination issues and global pay discrimination issues. In part 2 we address global initiatives for combating workplace harassment. Finally, in part 3, we address global workplace initiatives regarding diversity.
Part 1: Cross-Border Discrimination Initiatives
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 stamping out discrimination. Best practices include, for example: imposing tough work rules against discrimination; offering comprehensive discrimination training; implementing detailed reporting mechanisms; running statistical adverse impact analyses; and pursuing thorough internal investigations into specific allegations and incidents. US anti-discrimination tools have become so important domestically that an American multinational might assume its anti-discrimination 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 anti-discrimination regimes reminiscent of the US approach. Even so, outside the US, discrimination laws and cultural perspectives differ enough that a US-crafted discrimination initiative can seem divisive, even legally suspect. US-honed anti-discrimination tools need retrofitting for use abroad. Adapt them for 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 looms 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). Employmentat- will is a legal vacuum, but nature abhors a vacuum. What has rushed in to fill this one is American discrimination laws, which now amount to a sort of de facto US wrongful termination regime.
- Demographics. America’s especially-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 discrimination policy, while important, may play less outsize a role in human resources administration. Adjust accordingly.
Protected status. Well-drafted US discrimination 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 this “catch-all clause” approach, in the global policy context, arguably suffers from three shortcomings:
- It arguably is vague, impractical and insensitive—this approach in the global policy 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 policy 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 policy 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 part 1(a), below.
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 discrimination strategy. But this issue is deceptively narrow. Most multinationals knowingly employ relatively few US citizens overseas, rarely more than three percent of their outside-US workforces and often closer to zero percent. Extending a full-blown US-style anti-discrimination policy to everyone outside the US only to reach a tiny 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 discrimination 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 multijurisdictional discrimination 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.”
a. Special age discrimination issues
One particularly difficult aspect of cross-jurisdictional discrimination prohibitions regards age discrimination. US-based multinationals’ cross-jurisdictional discrimination policies and discrimination provisions in global codes of conduct (and diversity programs) tend to declare that the multinational tolerates no discrimination or harassment based on specific traits protected under US law, such as race, national origin, religion, gender, disability—and age. However, a “little secret” in global human resources is that, outside the US, multinationals often impose mandatory retirement and even age caps in help-wanted ads. Therefore, “age” clauses in global discrimination policies raise special problems.
A German employment lawyer has estimated that over 90 percent of American companies in Germany write mandatory retirement clauses into their German employment contracts—a practice possibly even more widespread in countries like India. Meanwhile, countless subsidiaries of multinationals in Latin America, Asia and Africa pay newspapers and websites to post job ads along the lines of “Wanted: Brand Manager age 30 – 35,” or “Seeking trainees up to age 25.” But under the very US laws that spawned American multinationals’ discrimination policies, forced retirement and job-ad age caps generally constitute age discrimination.
Outside the US, locals often argue that there is absolutely nothing wrong with forcing retirements in nations where this is customary, expected and perfectly legal. They argue that where social security’s replacement rate of final average pay is a lot higher than in the US, workers anticipate the day their social security benefits vest and they can leave the workforce. Outside the US, labor unions have actually negotiated mandatory retirement into collective agreements. For these reasons, countries outside the US did not traditionally ban age discrimination and for these reasons forced retirement remains perfectly legal today—even in most countries that have recently passed age discrimination laws (chiefly common law countries like Australia, Canada and New Zealand plus the member states of the European Union that have adopted or “transposed” Directive 2000/78, the EU directive that outlawed discrimination on age and other grounds). As such, the compliance issue here is less a matter of adhering to local law than it is a question of compliance with employers’ own internal discrimination policies with global reach.
But even as a matter of compliance with internal policy, there is real liability exposure here. Overseas, outside America’s employment-at-will environment, global human resources policies tend to be enforceable as part of the overall employment contract. Forced retirees and rejected job applicants might sue in local courts alleging a breach of these policies. In one such lawsuit, a group of Chinese forced retirees alleged to a Chinese labor court that while their dismissals may not have otherwise violated Chinese statutes, their firings breached their employer’s global discrimination policy.
Completely separately, imposing mandatory retirement and age caps abroad in violation of a global age discrimination prohibition could trigger problems in a US domestic age discrimination trial. A US age discrimination plaintiff trying to prove systemic age bias (such as in a class action) may seek to convince an American judge to permit discovery or to admit evidence, on the employer’s practices overseas under the theory that an employer openly discriminating against older workers abroad in violation of its own global discrimination policy more likely harbors an ageist animus.
In short, any US multinational with an unqualified global policy against discrimination based on “age” likely violates its own rules if, outside the US, either it fires people when they celebrate a certain birthday or it imposes age caps in help-wanted ads. To get into compliance, take four steps:
- Step 1: Assess noncompliant practices abroad. Many HR professionals and employment lawyers at US headquarters may be unaware that their own organization’s overseas affiliates currently impose mandatory retirement or job-ad age caps. Find out what really goes on overseas.
- Step 2: Align global prohibition with actual practices. Where a multinational learns its global policy against age discrimination is actively being violated abroad, there are five possible compliance strategies. Choose one:
- Stamp out mandatory retirement and age-capped job ads worldwide
- Write an express exception into the global discrimination prohibition excluding mandatory retirement and/or job-ad age caps, where legal
- Remove (from the list of protected traits in the global discrimination prohibition) the express reference to “age”
- Remove the entire list of protected traits (including the reference to “age”) and replace it with a general statement saying the organization will tolerate no illegal discrimination or harassment under any applicable law in any jurisdiction where it operates around the world
- Replace the global policy with tailored local policies
- Step 3: Police outsource partners. Many multinationals have contractually bound their overseas suppliers and outsource service providers to a supplier code of conduct. Check that code. If it expressly prohibits “age” discrimination, then monitor whether outsource partners impose mandatory retirement or age caps in their job ads. They very likely do and if so are in violation of the supplier code.
- Step 4: Ensure practices abroad comply with local age discrimination laws. A completely separate global age discrimination compliance challenge regards the emerging foreign age discrimination laws overseas, such as those in the EU: These laws tend to define “age discrimination” more broadly than under the US Age Discrimination in Employment Act: They tend to protect people of all ages—not just those over 40—and they tend to insulate the young against policies favoring the old. This means that many ADEA-compliant practices common in the US raise compliance problems abroad (for example: experience minimums in recruiting; lockstep and seniority-linked compensation and vacation benefits; and voluntary early retirement incentives for older workers). Ensure practices comply with local laws.
b. Special pay and benefits discrimination issues
In addition to age discrimination, a second particularly difficult aspect to cross-jurisdictional discrimination compliance regards discrimination in the context of pay and benefits.
Globalizing the human resources function often begins with globalizing pay and benefits initiatives. A consultant at Norfolk Mobility Benefits, David Bryan, says that as “[t]oday’s multinational employer [evolves] into the transnational of tomorrow…[t]here appears to be more centralization of core corporate functions,” including “benefits professionals implementing global benefits strategies.” Multinationals are increasingly aligning certain aspects of compensation/benefits across borders, such as by implementing: global executive reward initiatives, regional sales incentive programs, broad-based global incentives/bonuses and global stock option/ equity awards. In addition, certain one-time events, like a merger, spawn special global offerings like retention bonus plans and severance pay plans.
In their push to launch cross-border rewards, multinationals can too easily overlook pay-related discrimination laws in each affected country. In this context, “discrimination” is a broad concept—pay discrimination laws can encompass not only US-style “protected group” discrimination but also a distinct type of “job category” discrimination unknown in the US. We examine both.
“Protected group” pay discrimination. Most jurisdictions impose general employment discrimination laws that protect specified traits or groups, such as gender/race/religion, in hiring, firing and terms of employment. Examples include: Brazil constitution art. 7 items XXX-XXXI; EU Equal Treatment Directives 76/207/EC and 200/78/EC; South Africa Employment Equity Act 55/1998; Spain labor code arts. 4.2 (c), 17.1; and US Title VII/ADEA/ADA. Because rewards like pay, benefits and equity grants are vital terms of employment, discrimination in rewarding employees can violate these protectedgroup employment discrimination laws. Many countries include as illegal discrimination a concept of “adverse impact” (called in Europe “indirect discrimination”), by which a facially neutral compensation system may be held illegal if it disadvantages employees in some protected group.
- Gender. In addition to general discrimination laws, many countries impose separate gender discrimination laws specific to the pay/ benefits/equity context. Examples include: EU treaty article 141 and EU equal pay directive 75/117; the Ontario Pay Equity Act; the UK Equal Pay Act of 1970; and the US Equal Pay Act of 1963. (Plus there are gender discrimination laws like Korea’s Gender Equality Employment Act that reach—but are not specific to—compensation.) Some gender pay discrimination laws impose what in the US used to be called “comparable worth” analysis and what in the UK is called “work of equal value.” These laws require equalizing pay across job categories traditionally worked by one gender or the other—for example, an employer’s janitors might argue they contribute the same “comparable worth/equal value” as its secretaries and therefore deserve the same pay. Genderpay- discrimination laws can impose real burdens on compensation systems; Ontario’s Pay Equity Act requires employers affirmatively to run comparable worth/equal value analyses and Ontario’s increasingly proactive Pay Equity Commission launches unannounced enforcement audits.
- Local citizenship. Beyond gender, another specific group subject to special protection under some countries’ pay-specific discrimination laws is local citizenship. Some developing countries prohibit compensating aliens more generously (the policy here is to keep multinationals from rewarding their inbound expatriates more than comparable locals). For example, Bahrain labor law art. 44 mandates that “wages and remuneration” of “foreign workers” not exceed pay for local “citizens” with “equal skills” and “qualifications” unless necessary for “recruitment,” and Brazil labor code art. 358 requires that “salary” of a local citizen not be “smaller” than pay of a “foreign employee perform[ing] an analogous function.” Watch for these laws in structuring expatriate packages.
“Job category” pay discrimination. Beyond the standard type of protected group discrimination laws, many countries outside the US impose special “job category” pay discrimination laws by which every employee enjoys a legal right to be rewarded equally to co-workers in equivalent jobs—even if everyone concerned is otherwise in the same protected-group. As applied to a single job, these laws are conceptually simple: Two people doing the same work have a right to the same pay, even if both are white Christian men or black Muslim women. Essentially, these laws prohibit discriminating within each category. Where job-category discrimination laws get tricky is where they enter the realm of “comparable worth/equal value”—equating different job categories that purportedly contribute equal value to an organization.
For example, France’s job-category pay discrimination law allows for comparable worth/equal value theories, subject to employer defenses based on different length of service, performance, responsibilities and affirmative action/“positive discrimination” for nationality. See 15 Employees v. Renault, Cour de Cassation chamber social (France) [CCcs] case # 92-42.291 (10/29/96). In one French case a lawyer won a daily lunch subsidy that his firm had granted only to non-lawyer staff, on the theory that the employer could not favor employees by professional category, even though in that case the employer was favoring lower pay grades. Meier v. Alain Bensoussan, CCcs case # 05-45.601 (2/20/08); principle affirmed in Pain v. DHL, CCcs case # 07-42.675 (7/1/09); principle expanded in Cour d’appel de Montpellier chamber social case # 09/01816 (equalizing benefits between cadres [executive] and non-cadre employees). These cases, of course, turn on their facts; one French court ruled that a human resources job is not functionally comparable to—and therefore does not merit the same pay as—positions of project manager and “commercial manager.” Fornasier v. Sermo Montaigu, CCcs case # 06-46.204 (6/26/08).
Other countries that impose job category discrimination rules include:
- Brazil. Brazil labor code article 461 mandates equal pay among employees who perform “identical” work of the “same value.” Article 461 appears to link this mandate to protected group status—“sex, nationality or age”—but Brazilian courts completely decouple the equal pay mandate from protected group status. A 2007 case explains that “what is relevant for the purpose of [Brazilian] equal pay [analysis] is whether the identical tasks were performed by the claimant and comparable colleagues with the same quality and productivity,” regardless of sex, nationality or age. Fisch v. Unibanco, 2d App. Trib. #00530-2007-201-02-00-4.
- China. China’s recent Employment Contract Law, at articles 11 and 18, mandates that “the principle of equal pay for equal work shall be observed” (absent a union agreement to the contrary) and does not link “equal pay” to gender or other protected group status. Implementing regulations are silent on equal pay; Chinese law on this point remains undeveloped.
- Finland. In a June 2009 decision under the Finnish Employment Contracts Act 2001, Finland’s Supreme Court mandated equalizing employee benefits across two very different job categories. See Finland Sup. Ct. case # KKO:2009:52. A construction company had enrolled its clerical workers in a generous healthcare plan but excluded its construction workers. The construction workers and clerical workers belonged to different unions and hence were in different bargaining units. The construction workers sued for the health benefit under a job category (not genderlinked) comparable worth/equal value theory. The employer argued, but failed to prove, that each clerical worker contributed greater value than each construction worker. The court therefore ordered extending the health plan to the construction workers. The employer also lost on the argument that the construction workers’ union should have bargained for the premium health benefit, as the clerical workers’ union had and that the construction workers’ failure to win the benefit was a mere trade-off or concession in collective bargaining.
A special type of job-category discrimination law addresses irregular—temporary/part-time/contingent—status. European Union member states expressly prohibit pay discrimination on irregular status, meaning that (contrary to a practice widespread across the United States) European employers cannot deny temporary/ part-time/contingent workers benefits under insurance and retirement plans. See EU directive 97/81/EC. These same laws can also require European employers to credit part-time service as full-time for years-of-service requirements. Cf. Lapouge v. Assoc. ADAPEI, CCcs case # 07-40.289 (5/7/08) (France).
Part 2: Cross-Border Harassment Initiatives
Having addressed discrimination theories internationally, we turn now to the related but very different concept of international workplace harassment. Over the past few decades, workplace harassment jurisprudence in the US has evolved into what is surely the most intricate body of harassment law in the world. Harassment cases in America now construe concepts as esoteric as, for example: a “tangible employment action” requirement for vicarious liability in quid pro quo harassment; an affirmative defense of unreasonable failure to take advantage of “preventive or corrective opportunities”; a “severe and pervasive” requirement for hostile environment harassment; and claims of so-called “implicit” quid pro quo third party harassment.
These rarified doctrines evolved in court decisions despite the fact that the texts of US statutes tend not to prohibit workplace harassment at all, at least not explicitly: The US federal harassment prohibition is a judge-made extension of statutes that nominally prohibit only discrimination. As a result, workplace harassment in the US tends to be actionable only to the extent it is a form of discrimination. Non-discriminatory harassment or bullying, tends not to be illegal.
In recent years, awareness of workplace harassment has spread abroad. Common-law countries, in particular, now impose antiharassment rules reminiscent of the US approach. And yet as anti-harassment doctrines take root overseas they mutate into different forms. As they grow they can become even broader (if less nuanced) than their counterpart US doctrines. To that extent, state-of-the-art American tools for weeding out the US variety of workplace harassment do not always work well overseas. Fostering a harassment-free workplace internationally requires subtlety, strategy and finesse—not bluntly imposing an American “zero tolerance” approach. Any US multinational pursuing a multijurisdictional approach to eradicating illegal workplace harassment needs to account for the international context in a number of specific respects: alignment, protected status, affirmative mandates, policy drafting, launch logistics, communications/training and investigations. We address each.
- Alignment. Any global approach to eradicating workplace harassment should align with the multinational’s own approach to eradicating workplace discrimination and promoting equal employment opportunity. See part 1, above.
- Protected status. Because US rules against workplace harassment grow out of statutes that prohibit workplace discrimination, American harassment policies tend to ban only status-based harassment linked to membership in a protected group (like sex harassment, race harassment, disability harassment). As yet, few US employers impose tough, enforceable prohibitions against status-blind harassment (bullying, pestering, so-called “equal opportunity harassment”). A trend may be emerging at the American state level to combat so-called “abusive work environments,” but current American laws and policies against workplace harassment still yoke harassment to protected status. Overseas, though, prohibitions against harassment can be broad status-blind doctrines against “bullying,” “psycho-social harassment,” “mobbing” or simply abusive behavior generally, without regard to protected group. A Belgian law of June 2002 prohibits workplace “pestering,” a French law of June 2010 criminalizes “psychological violence,” and an emerging doctrine in Brazil imposes damages for “moral” harassment. In theory these status-blind harassment laws are infinitely broader than statusbased harassment prohibitions, because they ban all abusive behavior while status-based laws merely prohibit those acts of harassment motivated by a handful of specific factors. Accounting for status-blind harassment laws requires significantly broadening any workplace harassment policy or training module. Failing to address this leaves a big hole in any international harassment initiative.
- Affirmative mandates. Every workplace harassment law imposes a negative prohibition against committing illegal harassment. In addition, some jurisdictions’ laws go farther and impose affirmative employer duties as to harassment compliance. For example, a number of countries (including Chile, Costa Rica, India and Japan) affirmatively require employers to issue written sex harassment policies. South Korea and California require employers to offer periodic training on sex harassment. Costa Rica requires employers to institute sex harassment claim procedures and to report each claim to the Ministry of Labor Inspection Department. Any multijurisdictional harassment initiative needs to account for these locally-imposed affirmative employer duties with respect to harassment.
- Policy drafting. In drafting a harassment policy (or code of conduct provision) to apply across multiple jurisdictions, be sure every provision works locally. Specifically:
- Define key terms cross-culturally. Concepts connected to harassment are particularly susceptible to being misunderstood internationally. For example, the terms “inappropriate behavior” and “improper touching” get interpreted very differently depending on cultural context. Even the term “harassment” itself can take on very different meanings; in Brazil, the word “harassment” itself (assédio, in Portuguese) is understood to mean only overt and abusive acts and therefore does not reach “hostile environment” harassment.
- Be sure a policy’s explicit prohibitions are enforceable in each affected jurisdiction. Many harassment policies expressly prohibit on-job “kissing”—a rule unworkable in places like France, where men and women co-workers greet one another each morning with a kiss. And restrictions on co-worker dating can raise serious privacy law and human resources challenges overseas. Even rules that merely require dating co-workers to disclose relationships can be offensive and virtually unenforceable, in jurisdictions like France and Switzerland.
- Launch logistics. Be sure to launch a cross-border harassment policy in compliance with applicable procedures for implementing new work rules. Every well-drafted harassment policy (for that matter, every well-drafted discrimination policy) imposes a discipline or termination sanction; to that extent, the policy is a work rule which may be subject to mandatory “information and consultation” with works councils or a mandatory subject of bargaining with unions. Any policy provision that imposes a mandatory disclosure rule—such as a rule requiring dating co-workers to disclose their relationship—can trigger employment and data privacy law problems. In Europe, hotline-type reporting provisions in a harassment policy trigger data privacy laws.
- Communications/training. After implementing a global harassment policy, a multinational should communicate it to employees and train them on how it works. This step raises unique cultural challenges in places where sex harassment, in particular, remains poorly understood. Foreign workers, men and women alike, have responded derisively to US-generated sex harassment and gendersensitivity training, although in recent years workers in many countries have grown more sensitive in this regard. Still there remain pockets in the Arab world, Africa, Asia and Latin America where American-style sex harassment training modules may seem inappropriate. Audiences in these places may scoff at training they find too politically correct, too puritanical or too insensitive to their local culture. Therefore, tailor communications and training (live or on-line) for the local audience. Tone down features not likely to play well locally. Explain why harassment is a local problem and how harassment initiatives can work locally.
- Investigations. US employers understand the importance of thoroughly investigating credible harassment allegations received through a policy’s reporting channels. Indeed, laws in a number of countries (including Chile, Costa Rica, India, Japan, South Africa and Venezuela) affirmatively require employers to investigate specific allegations of sex harassment. Even so, aggressive American-style workplace investigatory practices trigger a number of unexpected legal issues. Be sure harassment investigations comply.
Part 3: Cross-Border Diversity Initiatives
Having addressed both discrimination and harassment law internationally, we turn now to the separate but related concept of international workforce diversity.
The US Supreme Court says “[m]ajor American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints.” Grotter v. Bolliner, 539 US 306, 330 (2003). Effective initiatives promoting diversity take this broad approach, focusing well beyond the three groups that US government statisticians track via the mandatory employerdiversity- reporting form, the EEO-1—the three EEO-1 groups being gender; race (white, black, native Pacific Islander, Asian, American Indian); and Hispanic/Latino ethnicity.
Indeed, diversity experts speak broadly of “diversity of backgrounds,” “diversity of opinions” and “diversity of experiences.” These diversity experts recognize that to limit diversity initiatives just to gender, race and Hispanic/Latino ethnicity would be far too confining. Indeed, diversity professionals look beyond EEO-1 categories and cultivate diversity among age groups, sexual orientations, disabilities and other legally-protected groups.
Yet the fact remains that in America the sine qua non of every successful diversity program actually is rooted in our three EEO-1 categories, gender, race and Hispanic/Latino ethnicity. After all, no one would consider a workplace of all white non-Hispanic men “diverse”—even if the white men came from different places, graduated from different schools, voted for different political parties, cheered for different sports teams and were of different religions and ages, even if the white men were different ages and sexual orientations and even if some were disabled. Like it or not, the EEO-1 metrics of gender, Hispanic/Latino ethnicity and especially race really do lie at the center of US diversity and discrimination analysis. According to the Yale Journal of International Law (vol. 35, p. 116 (2010)), “US judges, activists and academics have theorized extensively about how the struggle for African Americans’ civil rights shapes US law prohibiting discrimination against other groups.”
Meanwhile, diversity grows in importance outside the US. According to a report from the Conference Board (Executive Action Series #175), “demographic changes in Europe, combined with… regulations, are…pressur[ing European] companies to increase the diversity of their workforces.” A study by the Lee Hecht Harrison firm found that two-thirds of employers worldwide see a diversity program as a key retention tool. Increasingly, countries mandate certain diversity initiatives. South Africa requires workplace diversity plans, for example and Brazil and Germany require affirmative action for the disabled. India imposes some diversity rules, as well.
In response, US-based multinationals are now extending their diversity initiatives abroad. But there is a tension here. Outside the US, diversity initiatives rooted in the three US EEO-1 categories make little sense, because EEO-1 metrics are so intrinsically American. Consider:
- The “Hispanic/Latino” EEO-1 category is meaningless where there are virtually no Hispanics/Latinos (countries from Albania to Zimbabwe) and where there are virtually nothing but Hispanics/ Latinos (Spanish-speaking Latin America, Spain).
- Concepts of race differ abroad. In England, “Asian” means Indian/ Pakistani but rarely includes peoples of the Far East (who are called “Orientals”). South Africa’s diversity-promoting EEA-2 form distinguishes “whites” and “blacks” from “Coloureds”—a mixedblood categorization that tends to be offensive to Americans.
- Labor-pool demographics make racial diversity statistically impossible in many places. The CIA World Factbook reports that Japan is 98.5 percent Japanese and over 99.4 percent Asian. Korea is 100 percent Korean (“except for 20,000 Chinese”). Finland is 99 percent Finnish and Swedish. Even the increasinglyheterogeneous UK remains 92.1 percent white.
- Our three American EEO-1 categories are too coarse to account for granular demographic distinctions necessary overseas. In India, caste status is legally-protected—but in EEO-1 terms, all Indians are “Asian.” In Africa, tribal ancestry is critical—but in EEO-1 terms, all tribal Africans are “black.” In Spain, Basques and Catalans speak their own languages and promote separatism— but in EEO-1 terms are “Hispanic/Latino whites.” In Canada, French Canadians are culturally distinct—but in EEO-1 terms they are, like most Canadians, “non-Hispanic/Latino whites.”
- Even gender diversity can be impossible abroad. In Saudi Arabia, just five percent of the workforce is female and the law requires segregating women workers from men.
American concepts of race and ethnicity are so distinct to our society that our US Census struggles with slotting recent immigrants into our distinct American categories. According to the New York Times (January 22, 2010):
The pattern of race reporting [to the US Census] for foreign-born Americans is markedly different than for native-born Americans… For example… a majority born in the Dominican Republic and El Salvador, who are newer immigrants, described themselves as neither black nor white… Among all who identified themselves as Asian-Americans, which is often understood to mean born [in the US], 67 percent were, in fact, foreign born… [According to] Elizabeth M. Grieco, Chief of the Census Bureau’s immigration statistics staff,… “it’s a part of not knowing where they fit into how we define race in the United States.”
The disconnect between what Elizabeth Grieco calls “how we define race in the United States” and how other countries define it explains why diversity programs hatched from US EEO-1 metrics fail when transplanted abroad. According to HR Magazine (Nov. 2003), US “HR directors are finding that one-size-fits-all [diversity] programs will not work and might not even be understood” abroad. Andrés Tapia, Chief Diversity Officer at Hewitt Associates, has said that “we’re beginning to see an increasingly resentful backlash against the American version of diversity abroad.” Outside the US, the complaint Tapia hears most often is that “this diversity thing is an American thing.”
Rather than transplant a US approach, a multinational needs to redesign any global diversity initiative using internationally appropriate metrics. There are at least three appropriate alternate designs for transforming a US-centric diversity initiative into a viable international one: (1) cross-cultural understanding, (2) gender inclusion and (3) local racial/ethnic diversity.
Cross-cultural understanding. Project teams with members from different countries can run into problems because of deep-rooted cultural differences. Even within a small region like Europe, work styles and underlying assumptions and attitudes will differ greatly across, say, a team of Britons, French, Germans and Italians. Cross-cultural initiatives can address these problems, but these initiatives are so distinct from American-style “diversity” programs that the “diversity” label may be disingenuous—these initiatives tend to be training focused on understanding (attitudes) as opposed to action plans focused on inclusion (recruiting/retention). One human resources manager, Suzanne Bell of Toyota Financial Services, has suggested keeping the distinction here clear by labeling these as “Global Cultural Competence” or “Global Cultural Awareness” programs, eschewing the word “diversity” entirely.
Gender inclusion. Women are underrepresented, especially in leadership roles, in so many overseas workforces. Homogeneous racial demographics in many overseas markets may block efforts at racial diversity, but gender equity is good virtually everywhere (except in Saudi Arabia, where in some respects it is illegal). Therefore, some multinationals concentrate their outside-US diversity efforts on promoting gender inclusion, reserving race and ethnicity for their domestic US diversity initiatives. According to an article in HR Magazine (Nov. 2003), as early as the early 2000s Chubb, DuPont, Eastman Kodak, Ford and J.P. Morgan had all boasted sophisticated gender diversity programs in Latin America.
Local racial/ethnic diversity. Ambitious multinationals that take diversity seriously enough to acknowledge the limits of EEO-1 categories outside the US can promote racial/ethnic inclusion by tailoring diversity metrics to the very different “core diversity dimensions” overseas. The challenge becomes implementing meaningful benchmarking on a local-country basis: Does your Mexico City executive suite reflect Mexico’s Indian/Mestizo majority? Is your Brussels facility equally inclusive of both Flemish and Walloons? Does your Zurich branch welcome Switzerland’s French and Italian-speaking minorities? Do local taboos (and privacy laws) prevent you from learning the status quo, taking action and measuring success? Going beyond racial/ethnic categories, how can a global diversity program cultivate diversity among age groups, sexual orientations and disabilities? These are all tough challenges, ones that few multinationals have yet to confront.
Equal employment opportunity plays a bigger role in US human resources administration and US employment law compliance than it plays in perhaps any other country, particularly outside the common law world. Accordingly, American-based multinationals often place more emphasis on EEO issues than do multinationals headquartered elsewhere.
There are excellent reasons why all multinationals should vigilantly protect the equality of employment opportunity across their workforces worldwide. But how, specifically, can headquarters control this on a cross-jurisdictional basis? US EEO tools that were originally developed in the atypical and rarified legal environment of US discrimination, harassment and diversity laws will not work abroad, without modification.
Any multinational launching cross-jurisdictional work rules, international HR policies, global code of conduct provisions or other multiple-country initiatives addressing discrimination, harassment or diversity should modify policies and offerings carefully, accounting for the special context of the global workforce.