Policing Cross-Border Workplace Discrimination

Crafting an antidiscrimination policy that polices cross-border workplaces can be tricky for general counsel. One key, according to attorney Donald Dowling Jr., is to adapt the company’s U.S. policies to the specific locale in question.

Dowling, a partner in the New York office of White & Case, cites age discrimination as an example. “In the United States it’s illegal,” he told CorpCounsel.com, “but in India and some other countries, they impose a mandatory retirement age. There was actually a case in China where four employees hit mandatory retirement age, but a clause in the company’s code of conduct tied their [executives’] hands.”

Sexual orientation, Dowling said, is another area requiring a local perspective. In the U.S. some states have antigay discrimination laws, but there is no federal requirement that companies include it in codes of conduct.

But the European Union and Latin America have antigay discrimination laws, and a multinational company must be prepared to deal with both kinds of local laws in its policies.

For the most part, he said, a company can protect a certain class of people in its code of conduct even if a country in which it operates does not in its laws—unless the country outlaws a particular protection.

For example, he noted that homosexuality is illegal in some Arab countries. And if a company tries to include sexual orientation in its antidiscrimination policies, a local lawyer might take the company to court. Though Dowling noted, “The company can always push back.”

Gender is another area that requires special treatment. “Discrimination against women is rampant in Arab countries, for example, but on paper most have laws that purport to say that sexual discrimination and harassment are a crime,” Dowling said.

He said Saudi Arabia is “in a class of its own” when it comes to gender discrimination. “In Saudi, it’s ‘separate but equal.’ Women and men must be separated in the work force,” he said. “But as we know, separate is never really equal.”

The trickiest part comes in deciding which traits to list as protected in a company’s discrimination policy. An online search of global codes of conduct turns up an array of policies.

The Japanese-based Hitachi, for one, has a wide-ranging and open-ended list of traits in its global code of conduct, which reads:

“We will respect every person's character and individuality in the recruitment and treatment of employees, the conduct of commercial transactions, and all other company activities, and not engage in any acts that impair individual dignity or discriminate on the basis of sex, age, nationality, race, ethnicity, ideology, belief, religion, social status, family origin, disease, disability, etc.”

But Ernst & Young Global Limited, the international accounting firm, has a broader and more vague set of principles [PDF]. They include:

“We are committed to working in diverse teams . . . We consult with each other and value the perspectives of those who are different from us . . . We embrace multicultural experience and diversity as strengths of our global organization. As such, we respect one another and strive for an inclusive environment free from discrimination, intimidation and harassment.”