How employers can safeguard LGBTQ+ communities
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Stop the Hate - Marchers at the Gay Pride Parade in New York
John van der Luit-Drummond is editor-in-chief of International Employment Lawyer

Shortly after being sworn in as the 46th president of the United States, Joe Biden began an ambitious agenda to protect and promote LGBTQ+ rights. An executive order preventing discrimination based on sexual orientation and gender identity was followed by the lifting of a Trump administration ban on transgender Americans in the military. Then, in February, the Democratic-led US House of Representatives passed the Equality Act bill, which aims to enshrine LGBTQ+ protections in the nation’s labour and civil rights laws.

Although the bill still faces stiff opposition in the US Senate, the Biden administration is attempting to correct a political course that looked to marginalise LGBTQ+ people who had – until the Trump era – enjoyed increasingly progressive policies under President Obama. But it is not just at home that Biden is looking to repair the US’s moral leadership. Last month, he released a presidential memorandum directing federal agencies to, among other measures, combat the criminalisation of LGBTQ+ status by foreign governments.

Progress continues to be made on LGBTQ+ rights worldwide. Since the early 1990s, 43 countries have introduced laws protecting LGBTQ+ people against hate crime, while 39 jurisdictions have legislated against incitement to violence. Marriage for same-sex couples is now legal in 29 countries, while adoption by same-sex couples is now legal in 26 nations. Some 96 countries allow trans people to change gender legally. And, in the workplace, 72 countries now have laws protecting the right to earn a wage free from discrimination based on sexual orientation. In the last decade alone, 16 countries have enacted anti-discrimination legislation.

By contrast, however, 72 countries still criminalise consensual same-sex relationships. Forty-four nations specifically criminalise private sexual activity between women. Fifteen jurisdictions criminalise trans people. Eleven – Afghanistan, Brunei, Iran, Mauritania, Northern Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, UAE, and Yemen – can impose the death penalty for private same-sex acts.

The list of states that criminalise LGBTQ+ people contains many countries where well-known corporates have significant business interests, such as Bangladesh, Ghana, Indonesia, Malaysia, and Singapore, among others. This presents problems for multinationals operating in these jurisdictions: how can a conscientious employer protect its LGBTQ+ workers from laws that criminalise their existence and should it use its economic influence to move the needle towards greater equality in those countries?

“Employers need to be aware that these laws exist in countries they are operating in; where some proportion of their staff may be criminalised for conduct that would not only be protected in their corporate headquarters but is protected under international law. They need to know if they are engaging in a country that is abusing the human rights of their workforce,” says Téa Braun, director of the Human Dignity Trust. “Companies shouldn’t just stay quiet because they are operating in another country. We are in a global community and we do have international standards. Companies can find ways to help, both in public and in private.”

Companies can let a country know that their staff don’t want to go there and are less productive living under criminal laws

As an example, Braun points to the host of multinationals – including Goldman Sachs, JPMorgan, Google, Facebook, and Microsoft – that provided corporate sponsorship to Pink Dot SG, an annual event in support of Singapore’s LGBTQ+ community. Gay sex remains illegal in the city-state, although the authorities do not actively enforce the ban on same-sex relations. Nevertheless, the support displayed for the local LGBTQ+ community by major corporates has been a headache for the government which has gone so far as to ban foreign sponsorship of the Pink Dot event, claiming multinationals should not interfere in Singaporean politics.

“Joining the Pink Dot campaign or a similar initiative is a big positive statement,” says Braun. “To publicly say, ‘we are in support of all people’ sends a message to LGBTQ+ people that they are welcome and sends a signal to government that these laws and practices are not what companies believe in.”

“Global employers should understand that inequality affects all markets and regions in distinct ways, and adapt their approach accordingly,” says Vicky Hayden, head of global partnerships at Stonewall. “We encourage organisations to put in place a global international commitment to ending anti-LGBTQ+ discrimination and think about how this can best be implemented in different countries.”

Different countries and cultures will ultimately require different approaches. What activities the Singaporean government, for example, may begrudgingly tolerate from multinational employers their economy relies upon might not be remotely palatable to the leadership of another nation. Corporates should, therefore, take advantage of their internal government relations departments to backchannel and lobby for change, offers Braun. “Companies can let a country know the impact its policies are having on them as a key employer; that their staff don’t want to go there and are less productive living under criminal laws. They can use their influence to encourage dialogue, discussion, and change.”

“Businesses should consider whether they can engage in public lobbying, like calling on governments to implement or change legislation or whether their advocacy would be more affective in a private space, in closed meetings,” agrees Hayden. “We know from experience that when corporate advocacy is effective, it can have a hugely positive impact on their LGBTQ+ staff and wider community.”

“It can be hard for companies trying to balance different sensitivities,” says Nicholas Le Riche, an employment partner BDB Pitmans. “They want to be conscious of the cultural sensitivities of the countries they work in, while also protecting their own staff. Ultimately, I would hope organisations would feel confident enough to say they hold strong views on LGBTQ+ rights and get braver on these issues. They have to look after their staff first and then lobby for wider change beyond that.”

If corporate lobbying fails to produce a result, Braun suggests employers turn to the courts, where possible, and intervene in legal challenges with amicus briefs. “Be proactive. Make submissions to the court explaining that while these laws may not be enforced that is not all that matters. Their existence creates a stigma that pushes people underground with this perpetual risk the law will be applied. It is bad for business when some proportion of a workforce is living under discriminatory laws.”

“Success is achieved by challenging and changing discriminatory social and cultural norms abroad, through visibility and acceptance of all under-represented employees,” says Dr S Chelvan, head of immigration and public law at 33 Bedford Row. “It’s about actual engagement and we are not going to see that very quickly. In a lot of countries it is one step forward and two steps back.”

Global mobility

“What used to happen is that someone relocating to Dubai would be told, ‘just make sure no one finds out you’re gay’,” says Dr Chelvan. “They would need to conceal their sexual identity. Now, it is amazing to see the power and influence of internal employee groups, supported by employers, translate into economic strength internationally.”

While having care for LGBTQ+ employees in foreign markets, an employer must also assess the risks of LGBTQ+ workers travelling or relocating to workplaces abroad. As in all business, information is key and the starting point for any organisation that regularly sends employees abroad must be an awareness of local laws. “You need to know what the situation is for those communities in the countries you could be sending staff to,” says Le Riche. “You can’t begin to have that conversation with staff unless you know exactly what the situation is. You need to have a frank conversation with LGBTQ+ staff about what relocating to a particular country means for them.”

That is, of course, assuming that an employer is aware which of its employees are LGBTQ+. “People may not be ‘out’ at work, it is only when you start having a conversation about a foreign assignment that you find they’re uncomfortable relocating,” says Le Riche. “That could be the first time you ever have broached the question of their sexuality at work. It’s about being able to create a safe space where they feel comfortable sharing something so sensitive.”

It is also important that an employee who turns down a relocation opportunity does not feel their career will suffer as a result, explains Le Riche, adding that employers should consider other alternatives to relocation so the employee can still develop their career even if a particular posting isn’t one they feel comfortable with. Conversely, employers should not unilaterally discount an employee for relocation because of their sexuality. “You shouldn’t be making the choice for the individual because you know the situation will be difficult for them,” Le Riche. “They could be missing out on a good opportunity. It would be a mistake to automatically assume someone wouldn’t want to go somewhere.”

If the employee agrees to relocate then the employer must ensure a risk assessment has been conducted and that it has considered what strategies the employee may need to adopt after the move. “If they are ‘out’ in the UK do they want be ‘out’ at work in the country they are moving to?” asks Le Riche. “Again, that is a conversation that needs to be handled carefully because it is a big thing to ask someone to self-edit themselves and it may have implications for their own wellbeing. Is that something they are willing to do?”

You are looking to relocate someone because you’ve got a need and you think they are the best person to do it. It is in your best interests to make that relocation as successful as it can be

Again, a transparent conversation between employer and employee is paramount and consideration should be given to what support can be put in place if the worker experiences isolation abroad, something that may only be exacerbated if they are separated from their partners and family.

“You might not be able to get dependent visas for same-sex couples,” explains Le Riche. “What are the workarounds if that is the case? It is not just the pure diversity issues in the country but the points around the edges that also have an impact on someone’s life in a new location. Are the country managers properly trained on LGBTQ+ issues and able to offer support? Can the individual be returned home quickly, easily? Is there a support number they can ring to get legal advice? Think about the practical concerns so the individual feels supported.”

An employer that has read this far might decide it is just too much hassle to send an LGBTQ+ staff member abroad for even a short business trip, let alone an extended period. That would be a mistake, says Le Riche. “Ultimately, you are looking to relocate someone because you’ve got a need and you think they are the best person to do it. It is in your best interests to make that relocation as successful as it can be. It doesn’t take a huge amount of time to work out what the situation is for LGBTQ+ communities in a particular country and then have a conversation with the individual to think through how best to make it work.”

As a final point, Le Riche encourages employers to seek feedback from employees returning from assignments abroad. “It is important to get their experiences and see how things could be improved or developed. It is always a good idea to see if the steps you put in place have worked or how they can be refined. That feedback is key.”

However, for multinational employers to have a measurable impact on diversity and equality abroad, corporates must ensure that an inclusive culture is embedded at home, too, lest their initiatives be seen by foreign governments as hypocritical. “Companies need to institute zero-tolerance anti-discrimination polices in relation to diversity and inclusion which are quite clear in their phraseology when we talk about equality, enabling people to self-identify, and ensure that they are not stigmatised,” says Dr Chelvan.

“It’s about making that cultural space through actual acts, rather than omissions, providing policies that reflect that, and ensuring that those employees who go against these policies have that space to be heard, but know their discriminatory actions will be addressed. This is an opportunity to listen and learn.”

“Companies should always start by listening to LGBTQ+ staff and local LGBTQ+ communities, work with legal teams, senior leaders, and colleagues to lead initiatives that are appropriate and safe,” says Hayden. “International employers have to assess lots of different factors when supporting LGBTQ+ staff across their workplaces, but their efforts often make a real difference to improving the lives of LGBTQ+ employees and helping them thrive.”