OHCHR Publishes Guidelines for Businesses to Respect, Protect LGBTI Rights
The United Nations Office of the High Commissioner for Human Rights (OHCHR) recently announced the publication of the Standards of Conduct for Business to fight discrimination against lesbian, gay, bi, trans, and intersex (LGBTI) persons. [OHCHR Press Release] The Standards of Conduct for Business build upon the UN Guiding Principles on Business and Human Rights and the UN Global Compact – which collectively contain UN standards directed at businesses to respect and protect human rights, and remedy rights violations – to offer guidance to companies on how businesses should treat LGBTI people in the workplace and how businesses can promote LGBTI rights in the marketplace and in the community. See UN High Commissioner for Human Rights, Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People: Standards of Conduct for Business (2017), 1, 5-6. Several businesses, including Accenture, Baker McKenzie, BNP Paribas, The Coca-Cola Company, Deutsche Bank, EDF, EY, Gap Inc., Godrej, IKEA Group, Microsoft, Oath, Orange, SAP, and Spotify, have already shown public support for the Standards of Conduct for Business. [OHCHR Press Release] The commentary from the OHCHR accompanying the Standards of Conduct for Business explains that domestic legal reforms alone are not enough to create inclusive communities, and, therefore, the OHCHR notes that the corporate sector not only has an obligation to respect human rights but also holds significant influence in curbing human rights abuses. See UN High Commissioner for Human Rights, Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People: Standards of Conduct for Business, 15. The standards also bring together two areas in human rights protection that the international community is increasingly recognizing – businesses’ responsibility to respect, protect, and remedy human rights and violations thereof, and the human rights of LGBTI persons. [IJRC: SOGI; IJRC: Forum]
Summary of the Standards of Conduct for Business
The Standards of Conduct for Business focus on promoting inclusive LGBTI policies in three places: the workplace, the marketplace, and the community. There are five standards that collectively require businesses to respect, protect, and promote the rights of LGBTI persons.
The first standard of conduct is to respect human rights in line with the UN Guiding Principles. To that end, the businesses, the standard of conduct explains, should have policies and practices that respect human rights, including those of LGBTI people. See id. at 9. The standard continues to state that businesses should perform due diligence to ensure that company conduct and business relationships do not infringe on the human rights of LGBTI persons and should work with local LGBTI organizations to address any issues. See id. Businesses should seek to quickly and effectively resolve any human rights issues they have caused and should provide operational-level grievance mechanisms that are accessible, predictable, and transparent. See id.
The second and third standard of conduct states that companies should eliminate discrimination in the workplace, including discrimination based on LGBTI status, and support LGBTI staff. See id. at 9-11. Businesses should ensure the safety and security of LGBTI workers and their representatives by taking active steps to end harassment and discrimination. See id. at 10. They should also ensure that employment benefits are equal for employees of all sexual orientations and gender identities; have a system for reporting harassment and discrimination; raise awareness of the rights of LGBTI persons and the risks they face, including through the training of management staff; extend the same benefits to same-sex and opposite-sex partners; and respect the privacy of all employees by keeping information related to sexual orientation or gender identity private from third parties, and by not forcing LGBTI staff to conceal or reveal their identity or orientation. See id. at 9-10. Additionally, businesses should take proactive measures to provide support for LGBTI employees who wish to create informal staff groups supporting LGBTI people, and should allow LGBTI employees the same opportunities for extra-curricular activities. See id. at 11.
The fourth standard requires the prevention and mitigation of human rights violations, including those of LGBTI persons, in the marketplace. See id. at 11. This requires businesses to identify the areas of risk in which LGBTI persons may experience human rights abuses, including through setting up a process of accepting complaints from employees and stakeholders. See id. Additionally, according to the standards, businesses should assess whether their activities and relationships contribute to violence, bullying, intimidation, or ill-treatment against LGBTI individuals. They should also use their leverage to stop abuses within their business chain and should hold employees accountable for actions that result in human rights abuse. See id.
The fifth standard requires businesses to respect and promote human rights in the community, including the rights of LGBTI persons. See id. at 12. In particular, businesses should, according to the last standard, partner with local LGBTI groups to understand and address the challenges LGBTI persons face locally, and businesses should publicly advocate for LGBTI inclusive policies with local stakeholders and in relevant forums, such as the annual UN Forum on Business and Human Rights. See id. The fifth standard also states that businesses should take any possible step to challenge and delay implementing government orders that could result in human rights violations, including those of LGBTI persons, and should engage in social dialogue to exchange information with trade unions on the rights of of LGBTI workers. See id.
In its explanatory note following the five standards, the Standards of Conduct for Business state that businesses should look to local stakeholders to guide them in understanding the local conditions and developing strategies. See id. Additionally, businesses should consider the different issues facing lesbian, gay, bi, trans, and intersex persons individually, and should be careful that they do not create policies that ignore the differences in the LGBTI community. See id.
Application and Monitoring
The Standards of Conduct for Business reflect already existing norms in international human rights law, and they apply to all businesses, regardless of size and location. See id. at 13. The Standards of Conduct for Business are not monitored by any UN mechanism; however, the UN OHCHR encourages companies, trade unions, civil society organizations, academic institutions, and other stakeholders to monitor the performance of businesses. See id.
Business and Human Rights
The Standards of Conduct for Business are the most recent guidelines on human rights practices aimed at businesses. See id. at 16. The UN Global Compact, first unveiled in 2000, and the UN Guiding Principles on Business and Human Rights, published in 2011, also both address the intersection of business and human rights. See id.
The Global Compact promotes 10 principles for corporate sustainability, which are divided into four categories: human rights, labor, environment, and anti-corruption. See UN Global Compact, The Ten Principles of the Global Compact. Under the first category, the Global Compact states that businesses should support and respect human rights and should ensure they are not complicit in human rights violations. Under a few of the other principles, businesses are also expected to respect the rights to freedom of association and collective bargaining, the elimination of forced labor, the prohibition of child labor, and nondiscrimination in employment. They are also expected to engage in environmentally friendly practices and discourage corruption. See UN Global Compact, The Ten Principles of the Global Compact.
The UN Guiding Principles on Business and Human Rights serve as the global standard for preventing and remedying human rights abuses linked to corporate activity. See UN High Commissioner for Human Rights, Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People: Standards of Conduct for Business, 17. The UN Guiding Principles established the “protect, respect, and remedy” framework that focuses on the State’s duty to protect human rights, the responsibility of corporations to respect human rights, and the need to provide a remedy for victims of human rights violations due to corporate activity. See OHCHR, Business and Human Rights.