"How can multinational companies ensure that the employment rights of minorities are respected and supported, irrespective of their operating location or context?"

The dilemma for responsible companies is how to ensure they can apply the highest standards throughout their operations, so that all current and potential employees can enjoy an equal level of protection – regardless of their ethnic, national, linguistic, cultural and religious background.

Minorities in all regions of the world experience direct and indirect, de jure and de facto discrimination in their daily lives. As noted by the ILO report entitled "Equality at Work: Tackling the Challenges" discrimination "bars people from some occupations, denies them a job altogether or does not reward them according to their merit because of the colour of skin, sex, or social background". For the purposes of this dilemma, we use the term ‘minority' to indicate racial, ethnic, national, religious, linguistic and other related differentiators.

In some regions, diversity, equality and non-discrimination laws are so well entrenched that multinational companies (MNCs) have had a strong incentive to implement detailed policies and procedures to minimise the risk of discrimination against minorities for a long time. In these areas, prevalent social norms, the presence of internal company safeguards and the threat of legal consequences have helped engender relatively fair workplace cultures. In such locations, the protection of the rights of minorities is unlikely to represent a ‘dilemma' per se.

Nonetheless, growing engagement by MNCs with certain emerging markets – some of which can offer relatively complicated social, political and cultural contexts – raises new challenges in terms of ensuring potential and current employees experience de jure and de facto equality. Whilst most companies will have group-level anti-discrimination policies and procedures, the actual implementation of these standards at operation-level will not always be easy or straightforward. This may be due to local conditions, the involvement of third-parties (such as joint-venture partners or franchisees) or issues within the local supply chain.

According to the UN Global Compact and UN Alliance of Civilizations, diversity in the workplace is becoming an increasingly important issue for companies. This is due to – for example:

• Demographics: High levels of migration (both at the domestic and international levels) can result in the isolation of certain minorities in host communities and countries. If the newcomers also share certain ethnic, religious, linguistic or other characteristics, they may also be confronted by prejudice
• Globalisation of operations: Companies are rapidly expanding into regions where legal frameworks and political attitudes may not be conducive to the fostering of amicable multiculturalism
• Proliferation of anti-discrimination laws: As more countries sign and ratify international instruments prohibiting discrimination based on a variety of characteristics, companies need to be increasingly aware of their local compliance requirements
• Escalating discrimination in the workplace: In many cases, employees can be subject to ‘multiple discrimination', in which intolerance is demonstrated in reference to one or more (often intertwined) characteristics; for example migrant status, skin colour, sexual orientation etc. The ILO suggests that discrimination of this nature has increased in recent years due to, among other things, "the deepening of economic inequalities along religious, racial or ethnic lines"

The growing globalisation of companies' operations (i.e. through the expansion by MNCs into unfamiliar social, political, cultural and religious contexts) means these issues are of particular relevance to business.

Furthermore, they also pose a challenge for MNCs whose established operations are taking in significant numbers of employees belonging to minority groups who have relocated from one location to another (i.e. migrant workers sharing minority group characteristics).

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Discrimination against minorities can stem from both direct and indirect actions by employers:

• Direct discrimination is straightforward; for example, considering a job applicant's ethnic, religious, national, linguistic or cultural background as a pivotal determinant in the recruitment process
• Indirect discrimination involves an apparently neutral law, rule, requirement or practice that has a disproportionate impact on a particular group, and which is not necessary and appropriate to achieve a legitimate, job-related objective. However, differential treatment may be permissible if its objective is to overcome past discrimination or address persisting inequalities

Companies seeking to avoid discrimination against minorities are likely to face particular challenges when they operate in contexts characterised by:

• Discriminatory laws and policies: Laws in this category might favour one minority group over another or promulgate the general repression or forced assimilation of minorities. For instance, labour and employment laws that prevent certain minority groups to access particular jobs or work in specific sectors could fall into this category.

An extreme example can be found in Apartheid South Africa, where MNCs operating in the country would technically have been obliged to abide by racist and discriminatory employment laws.

‘Positive' discrimination (also known as ‘affirmative action', ‘positive action' or ‘reverse discrimination') may be permissible, if it remediates the structural biases preventing the achievement of equality for all. In the US, for example, there are a number of federal legal requirements aimed at enhancing the opportunities of certain disadvantaged minority groups (for example, African-Americans) through preferential treatment. When operating in a country, which has such measures in place, companies may be required to analyse their operations and supply chains to identify conditions that cause or maintain discrimination against such disadvantaged groups. They may then be required to take action to actively promote equality, correct conditions that contribute to the disadvantage of minorities or to grant preferential treatment to certain groups. For example, South Africa has extensive Black Economic Empowerment legislation in place, which is intended to address inequality and help Historically Disadvantaged South Africans gain entry into the economic mainstream.

• Inadequate protection: In certain cases, minorities may not be officially recognised as such (and so not enjoy specific protection around the prevention of discrimination, for example). In other cases, minorities may enjoy be official recognition, but nonetheless not enjoy any specific legal protections.

For example, apart from non-Muslim minority groups recognised by Turkey under the Treaty of Lausanne, the country does not recognise any majority or minority but consider all Turkish citizens as individuals with equal rights before the law.. This is despite estimates that 18% of the population is of Kurdish origin and 7-12% is of ‘other minorities'.

• Lack of political will due to institutional bias or lack of capacity: Even if legal safeguards for minorities exist at the national level, if there is an implementation shortfall, the risk of infringement of their rights is more likely. For example, the US Department of State notes ongoing repression of minority groups in China. This includes repression of the freedoms of speech, religion, association, and assembly of ethnic Uighurs in the Xinjiang Uighur Autonomous Region (XUAR) and of ethnic Tibetans in the Tibet Autonomous Region (TAR) and other Tibetan areas. Furthermore, despite the fact that "government policy calls for members of recognized minorities to receive preferential treatment in birth planning, university admission, access to loans, and employment…the substance and implementation of ethnic minority policies remained poor, and discrimination against minorities remained widespread."
• Lack of equal access to education obstructing access to employment: If children, young people and women from particular minority groups do not have equal access to education, they are likely to be at a socio-economic disadvantage for their entire life. This can relegate minority group members to unskilled or low skilled jobs, which can in turn lead to unjustified stigmatisation as to their intelligence, capabilities or ambitions. Moreover ineffective participation of members of minorities in public and private lives, limits their ability to participate in the decisions that affect them.

For instance, even though Brazil's commitment to the protection and promotion of human rights has intensified in recent years, compared to Brazilians of European descent, far fewer Afro-Brazilians enrol in advanced education and acquire the skills needed for well-paid jobs. Despite making up almost half of the population, the US Department of State notes that Afro-Brazilians "were underrepresented in the government, professional positions, and the middle and upper classes" and suffered from a significant educational gap.

• Widespread societal/cultural acceptance of discrimination: Discrimination may be used to maintain the advantages (whether economic, political, social, educational, racial, etc.) of one group over other(s). Power disparities can, over time, be solidified as a result of unequal access to education and public life.

For example, in India it is a punishable offence to practice ‘untouchability' (i.e. a severe form of discrimination against Dalits and other members of scheduled castes). Nonetheless, this form of discrimination is deeply entrenched and remains common. Furthermore, "special laws to prosecute suspected perpetrators were rarely used". According to the 2011 census, Dalits (or Scheduled Castes) made up 16.6% of the overall population.

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Real-world examples

Documented reports of discrimination against minorities (i.e. in terms of access to employment and treatment during employment) are predominantly found in countries with well-established and liberal legal regimes. Nonetheless, the dearth of reporting in countries with ‘weak' laws and enforcement mechanisms does not mean that this dilemma is irrelevant or that local minority groups have achieved de jure and de facto equality. Indeed, it is often these same countries that actually pose the most serious risks in terms of direct and indirect discrimination against minorities.

21st Century Fox accused of racial discrimination

In April 2017, fresh allegations of racial discrimination against 21st Century Fox were made by eleven current and former employees of Fox News, expanding a complaint filed in March by two black women who worked for the company. Both class action lawsuits claim that the environment at Fox News was intolerable, with employees regularly subject to racist behaviour and racial slurs which senior management largely ignored. 21st Century Fox denies the allegations, claiming they are ‘meritless and frivolous.’ The cases come shortly after the channel was forced to pay out USD13 million to settle complaints about sexual harassment. Five women claimed that they were subject to harassment and other inappropriate behaviour at work, which led to a mass exodus of advertisers from the channel.

Del Monte Fresh Produce pays USD1.2 million to settle discrimination claims by Thai workers in Hawaii

In November 2013, Reuters reported that Del Monte Fresh Produce had agreed to pay USD1.2 million to settle a federal lawsuit relating to claims that 150 Thai workers on pineapple plantations in Hawaii had their passports taken from them, were denied wages and were provided with inadequate accommodation. In addition, the workers were reportedly subject to excessive recruitment fees resulting in heavy debts. The case was filed on behalf of the workers by the US Equal Employment Opportunity Commission (EEOC) against six growers (including Del Monte), as well as recruitment company Global Horizons. It claimed that the companies had discriminated against the workers on the basis of their national origin – and also that those workers who had complained had been subject to harassment and retaliation. Del Monte, which denied any wrongdoing, agreed to comply with federally approved guidelines at its US farms – including procedures to ensure that: (1) labour contractors are accountable for preventing discrimination; and (2) workers are informed of their rights.

Panda Express settled case for discrimination against immigrant workers

In June 2017, Panda Restaurant Group, Inc. and the US Department of Justice settled a claim alleging that the restaurant had engaged in discrimination towards its immigrant employees. The restaurant was accused of breaching the anti-discrimination provision of the Immigration and Nationality Act by requiring permanent residents to keep providing and reverifying work authorisation papers when their resident cards expired. However, the Act states that employers are not allowed to require documents based on citizenship status and national origin from employees. The settlement between the company and the government includes compensation of USD400,000 to the federal government, as well as USD200,000 to employees who lost their jobs. The company is also required to train human resources on the anti-discrimination provision of the Immigration and Nationality Act.

Palantir Technologies to pay USD1.6 million to settle hiring discrimination case

In 2017, the tech company Palantir Technologies Inc. was ordered to pay USD1.66million to former applicants who applied for, but didn't receive jobs at the company. The settlement is the result of a case brought by the US Department of Labor which alleged that Palantir discriminated against Asians. As the company hiring policy relies heavily on employee referrals, the Department found during a review of hiring practices that this resulted in bias against Asians. Similarly, the investigation found that for software engineering positions, Palantir hired 14 non-Asian engineers and 11 Asian engineers, despite the fact that 85% of the 1,160 applicants were Asian. Regulators claim that the likelihood of this happening by chance is one in 3.4 million. The company has since been ordered pay back wages and stock options to affected applicants, as well as extend job offers to eight eligible candidates who were rejected in 2010 and 2011.

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Legal risks

International law

The right to be free from discrimination is a fundamental principle recognised by international law and is of paramount importance for minorities globally. All international human rights instruments forbid discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. As with all human rights, it is incumbent on the state to protect and promote the rights of persons belonging to minorities. Furthermore, companies have a duty to respect and support this right as applicable.

States that have ratified the relevant international conventions should have relevant national legislation in place implementing the terms of these international legal instruments. This by no means ensures – however – that the provision of legal protection for minorities is of equal efficacy across all countries.

Domestic law

In jurisdictions with well-developed and well-enforced legislation on non-discrimination, the treatment of minorities is likely to be an importance compliance issue for companies. This is less true of weaker jurisdictions – including a range of emerging markets – where legal protections are inadequate and/or poorly enforced.

Nonetheless, it is useful to examine legislation and case law from the former jurisdictions to identify the higher legal standards that MNCs should aspire to – and which will, over time, become more common in a wider range of jurisdictions.

National legal frameworks in states that have adopted relatively ‘strong' legal regimes regarding non-discrimination define a number of traits upon the basis of which discrimination is illegal. In this category, the US has a particularly sophisticated federal anti-discrimination regime enforced by the US Equal Employment Opportunity Commission (EEOC) and rooted in Title VII of the Civil Rights Act of 1964. Whilst clearly not directly applicable to many growth market scenarios, this legislation nonetheless sets out some important principles, that are likely to be reflected in legislation in a number of countries – if not now, then certainly in the future. The Civil Rights Act prohibits harassment or any other employment action based on:

• Affiliation with a particular religious or ethnic group
• Physical, cultural, or linguistic characteristics, such as accent or dress associated with a particular religion, ethnicity, or country of origin
• The perception or belief that a person is a member of a particular racial, national origin, or religious group whether or not that perception is correct
• Association with a person or organisation of a particular religion or ethnicity

Similarly, the UK's Race Relations Act makes it unlawful for an employer to discriminate against an employee on the grounds of race, which includes colour, nationality, or ethnic or national origins. According to this legislation, an employer must:

• Allow most jobs and training schemes to be occupied by any race; with the exception of jobs such as modelling, acting, or in places where food or drink is served and a certain race is needed for authenticity
• Give all races the same terms in the work contract
• Allow all races the same promotion, training, and other opportunities

In jurisdictions like the UK and US, breaches of non-discrimination legislation can be serious and multifaceted:

• In 2012, A US court awarded USD25 million in damages against steel manufacturer ArcelorMittal to an African-American worker who was subject to serious racial harassment and discrimination at the Lackawanna steel plant in the US. It is reported that whilst ArcelorMittal acknowledged the reported incidents took place, it denied responsibility for them – and took reasonable steps to stop it (including the hiring of a private investigator, the installation of security cameras and the suspension of employees involved in the incidents. Nonetheless, a jury in Buffalo found that the company allowed a "hostile work environment". The award was subsequently reduced to USD6 million – and ArcelorMittal was reported to be considering appealing the finding.
• In 2015, employees at the Pioneer Hotel in Laughlin, Nevada, were awarded USD150,000 and non-financial compensation following a discrimination lawsuit filed by the Equal Employment Opportunity Commission. The case was taken in response to ongoing harassment of Latino and brown skinned workers, particularly those in housekeeping and security. The EEOC charged that the hotel had failed to stop and rectify the abuse, which included racial slurs by several supervisors and co-workers. Following the case, Pioneer Hotel was required to enter into a four-year agreement that prohibits the company from facilitating a hostile working environment, seek the expertise of an external equal employment opportunity consultant to implement effective policies, create a centralised complaints mechanisms and provide training on Title VII to all management staff.
• A 2005 class action discrimination lawsuit in the US against Sodexo (a French food services and facility management company with multinational operations), settled for USD80 million, proves that litigation can be immensely costly. In this case, 10 lead plaintiffs and 3,000 African-American employees successfully claimed they were not being promoted at the same rate as their white colleagues between 1998 and 2004. The allegations included that the company-wide promotion process is uncontrolled and entirely subjective, virtually guaranteeing racial bias. As a part of the settlement, Sodexo was compelled to improve diversity practices in the workplace, especially those governing hiring and promotions.

USDAs with the US and UK, many emerging markets will have explicit prohibitions against ethnic discrimination within their labour legislation.

For instance:

• China: Article 3 of the 2007 Employment Promotion Law states that no worker "shall suffer discrimination on the grounds of ethnicity, race, gender or religious belief". This law is implemented through a 2007 Law on Mediation and Arbitration of Labour Disputes which makes provisions for settling workplace issues related to, among other things, contracts, remuneration and treatment of employees
• Brazil: Article 373A of the Consolidated Labour Law (1943) outlines the anti-discrimination rules that businesses must apply within their operations. Denying employment based on the grounds of gender, race, age or family situation is illegal and these characteristics cannot be mitigating factors in workplace treatment
• Russia: The Constitution guarantees equality of rights and freedoms and prohibits discrimination based on race. Similarly, the 2001 Labour Code prohibits discrimination in the workplace based on gender, national, linguistic, ethnic, religious, racial and other backgrounds
• India: Article 15(1) of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. In terms of workplace specific regulations, Article 16 specifically upholds equality of opportunity for all citizens in relation to employment, including employment by the state.

Operational consequences

Extended litigation can use valuable management time, resulting in considerable operational disruption. In many instances, executives must give lengthy depositions as a part of the adjudication process. In addition, they are also likely to be involved in litigation strategy, including harm mitigation and publicity.

Legal sanction may result in companies having to implement improvements to their policies and/or human resource management systems – both in order to avoid financial or other penalties imposed by courts in future and because they have been required to do so by a court.

Such revisions can impact productivity as employees take time to familiarise themselves with the modified processes and expectations. An example of this can be found in the independent task force of outside experts that worked with Coca-Cola as a part of their settlement in the case mentioned above.

Reputational risks

Even where allegations of complicity do not result in legal sanctions, companies can still face a range of non-legal risks – and reputational risk in particular. If a company is perceived to discriminate against minorities, it may end up alienating a range of stakeholders including consumers, investors, current employees, prospective employees and civil society members.

This has the potential to result in, for example:

• Reduced sales as a result of brand erosion amongst consumers who are either part of, or sympathetic to, minority groups that are perceived to be subject to discriminatory practices
• Divestment by ethical investment organisations who perceive a discriminatory approach to minorities
• Reduced staff morale, motivation and commitment, resulting in high turnover and low productivity

Other commercial risks

As noted by the UN Global Compact and the UN Alliance of Civilizations report, ‘Doing Business in a Multicultural World', "to be successful in an inter-connected world, businesses of all sizes and in every country must be able to compete effectively in diverse, multicultural environments". Companies that fail to promote ethnically and culturally diverse workforces through the provision of strong protection from discrimination may lose out on a range of commercial opportunities – and so compromise their own long-term business performance:

• Attracting talent: Without nurturing a diverse and inclusive workplace, it is difficult to attract, retain and motivate the best talent. If a company gains a reputation as being unwelcoming to minorities, candidates may even refrain from applying for employment in the first place. This dynamic can have obvious commercial implications, and can be difficult to reverse.
• Catering to diverse customers: When responding to the diverse and changing needs of customers in the market, insight from employees with relevant backgrounds can be valuable. A homogenous workplace would have difficulty understanding preferences expressed by different sorts of consumers and this is problematic for companies expanding their presence into emerging markets if their workforce does not have local representatives.
• Managing local relationships: According to the UN Global Compact and UN Alliance of Civilisations, managing relationships with government authorities and local communities is an essential factor in the maintenance of a company's political and social licence to operate. As a result, it is helpful to ensure that employees reflect the societies in which they operate, and so have first-hand understanding of local cultures, contexts and concerns – an also demonstrate the opportunities that companies can offer local people.

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The UN ‘Protect, Respect and Remedy' Framework for Business and Human Rights provides guidance on how to protect individuals and communities from corporate related human rights harm.

The framework is comprised of three key principles:

• Protect: The state duty to protect against human rights abuses by third parties, including business;
• Respect: The corporate responsibility to respect human rights; and
• Remedy: Greater access by victims to effective remedy, both judicial and non-judicial.

The framework states that in addition to complying with national laws businesses have a responsibility, in the context of the countries where they operate, to respect human rights through their own business activities and through their relationships with third parties – such as business partners and entities in their supply chains. To meet this responsibility, the framework notes that businesses should engage in human rights due diligence and specifies the main components of the process:

Policies: Including a human rights policy containing broad commitments, supported by more detailed guidance in specific functional areas

Impact assessment: Including assessments that explicitly reference internationally recognised human rights and are used by companies to avoid potential negative human rights impacts on an ongoing basis

Integration: Including the embedding of respect for human rights throughout a company

Tracking performance: Including regular updates of human rights impact and performance

The Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework aim to provide "concrete and practical recommendations" about how businesses can operationalise their responsibility to respect human rights. According to the Guiding Principles, the responsibility to respect human rights requires responsible companies to:

• Implement a human rights policy
• Apply human rights due diligence
• Provide for remediation

The UNGPs apply to all States and to all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure.

The UNGPs have experienced widespread uptake and support from both the public and private sectors, and numerous companies have publicly stated their commitment to the Guiding Principles. The UN Guiding Principles Reporting Framework is also used by companies to report on how they respect human rights.

Companies can seek specific guidance on this and other issues relating to international labour standards from the ILO Helpdesk. This aims to help company managers and workers understand the ILO approach to socially responsible labour practices and to assist in the development of good industrial relations.

1. Adopt and implement policies and procedures to promote equal treatment

According to the ILO and UN Global Compact, relevant policies and procedures should:

• Ensure that "qualifications, skills and experience make the basis for the recruitment, placement, training and advancement of staff at all levels"
• Assign responsibility for equal employment issues at a high level, issue clear company-wide policies and procedures to guide equal employment practices, and link advancement to desired performance in this area
• Respect all relevant local and national laws
• Avoid selecting job requirements that systematically disadvantage certain groups
• Keep up-to-date records on recruitment, training and promotion that provide a transparent view of opportunities for employees and their progression within the organisation
• Where discrimination is identified, develop grievance procedures to address complaints, handle appeals and provide recourse for employees. This and other actions to avoid or remedy discrimination is particularly important in the context of negotiations and collective agreements
• Be aware of formal structures and informal cultural, linguistic and other issues that can prevent employees from raising concerns and grievances
• Establish programs to promote access to skills development training and to particular occupations.

Any such policies should be supported by relevant implementation mechanisms to ensure that their provisions are given real effect. This might include, for example:

• The development of relevant protocol/guideline documents to ‘flesh out' the terms of the policy. If necessary, these should be adapted to local circumstance so that they are fully relevant – and culturally appropriate – to the local context, whilst at the same time focusing on the achievement of equivalent outcomes
• Monitoring mechanisms to ensure that: a) the policy is being communicated and implemented; and b) that this is not having a negative effect on company performance. This might include, for example, measurement of the company's ethnic and other minority composition (e.g. new employees, current employees, redundancies, promotions etc.), instances – and outcomes of complaints, number of employees benefiting from religious accommodations made by the company etc.
• Reporting mechanisms to communicate to employees (and other relevant stakeholders) company performance in managing this issue (for example, using monitoring metrics or similar)
• Establishing a formal complaints procedure and/or confidential helpline – to handle internal complaints and oversee the resolution of disputes in an impartial way
• Carrying out training sessions – with a particular focus on managers – to firmly instil the values reflected in the policy and international standards

2. Assess the prevalence of discrimination on the basis of ethnicity and other grounds

Where relevant (for example, entry into new markets, establishment of new operations, major changes to the workforce etc.) companies can assess:

• The prevalence of discrimination (i.e. in access to land, education, employment, capital, economic opportunities etc.) on the basis of ethnicity, religion and other grounds
• The potential for such discrimination to impact on the company and its workforce – and vice-versa

Any such assessment should be commensurate with operational requirements and may range from a ‘quick' desk-based assessment, to a site- and corporate-level exercises – and should be aligned with the UN Guiding Principles (see above).

In specific reference to minorities, the UN Global Compact's ‘Human Rights Translated' suggests that impact assessments should be geared towards "identify[ing] any long-standing marginalisation of particular ethnic, religious or other groups in the local context of company operations, and consider[ing] appropriate affirmative action policies." Ideally, assessments of this nature will include other participants, such as non-governmental organisations (NGOs), international and local minority rights advocacy groups and experts.

Depending on the sector and expanse of operations, companies might consider integrating business partners, suppliers and contractors into the assessment – to ensure the full range of potential and actual impacts are addressed.

When conducting an assessment, companies might focus on three key areas:

External context

For example:

• Does the area of operation have a history of divisiveness (e.g. on religious, ethnic or nationalistic grounds) and does it demonstrate evidence of discrimination within broader society?
• What are the relevant laws pertaining to equal opportunity and non-discrimination? Do these provide adequate protection for minority employees – or are additional measures required?
• Are there local affirmative action requirements for particular minority groups that may be applicable to your business? If not, would historical circumstances justify unilateral action on the part of the company (in line with relevant legal controls)?

Internal context

For example:

• What is the current makeup of your workforce (e.g. its ethnic, religious, cultural or national composition)?
• To what extent do current company policies and procedures address discrimination against minorities?

Relationships (state/non-state business partners, entities in supply chain)

For example:

• What is the current makeup of your suppliers' workforces (e.g. their ethnic, religious, cultural or national compositions)?
• To what extent do entities in the supply chain ensure that the rights of minorities are respected and protected?
• Do government partners take positions on the rights of minority groups that have implications for your business?

For example, the Human Rights and Business Resource Centre, the Danish Institute for Human Rights and the International Dalit Solidarity Network have created the ‘Dalit Discrimination Check', encompassing a series of questions and indicators to assess caste discrimination risk in South Asia. The tool was designed through a process of corporate and NGO collaboration and is part of a series of Human Rights Compliance Assessments offered by the organisation.

3. Promote a culture of tolerance within the workplace

Carefully conceived cultural awareness initiatives can help companies and their workforces respect diversity and reduce the risk of workplace discrimination.

Diversity training

In every company, managers play a key role in defining company culture. In recognition of this, when Kordsa Global (a supplier of nylon and polyester yarns and cord fabric) expanded operations from Turkey to other parts of Asia, all foreign and executive managers were enrolled in cross-cultural management training at leading universities in Turkey and Europe. In addition, employee exchange programs were established between the company's headquarters and subsidiary companies, thereby creating global networks for various processes such as health and safety, sales and operations and human resources.

Similarly, in order to further workplace tolerance and respect for distinctive identities Johnson & Johnson has established a ‘Diversity University', which provides employees with:

• Access to resources on diversity
• Cultural awareness training tools featuring country-specific content
• Links to e-learning courses and information on subjects including mentoring, international assignments, leadership and rotational development programs

Another approach might entail training sessions dedicated to achieving heightened ‘cultural fluency' and could include members from civil society and participants from both the public and private sector. For example, Columbus Council on World Affairs runs global fluency training aimed at providing professionals from all sectors with the tools to effectively work across all cultures, as well as facilitating cross-cultural understanding.

Affinity groups

Affinity groups are voluntary groups consisting of employees sharing a common identity and having the objective of promoting workplace tolerance. The groups are commonly organised along ethnic, religious, cultural and linguistic lines, providing a useful support network to employees of a particular identity. In addition, they are intended to raise awareness and understanding of particular groups and persons belonging to ethnic, cultural and other identities within the general workforce.

Despite these positive objectives, affinity groups need to be approached with care for two key reasons. In the event that there is little interaction between groups, they might actually foment identity-based segregation within the workplace. Despite all good intentions, this could galvanise rather than dispel tensions among groups within the workplace. In addition, if certain groups' freedom of opinion, expression and beliefs are restricted, there could be claims of discrimination on the part of the company.

Nonetheless, the UN Global Compact and UN Alliance of Civilizations advocate the establishment of such groups in certain contexts, because they can serve as:

• A forum to identify and discuss workplace issues

• A recruitment attraction
• A pool of understanding about appealing to that particular identity group in the mass market

Diversity Best Practices - a think tank focusing on multicultural management in the workplace - estimates that 90% of Fortune 500 companies have, or soon will have, employee affinity groups.

4. Establish grievance procedures and remedy mechanisms

Companies may consider instituting grievance procedures in order to ensure that minority employees have equal, effective, adequate and prompt access to remedy when they face discrimination as well as other equality-related workplace issues.

At a basic level, this might include formal procedures through which complaints can be pursued through the conventional company hierarchy. Such procedures should ensure that impartial investigations are carried out in response to each complaint and adequate, effective and prompt reparation is provided. It is advisable that the company clearly communicates that these mechanisms:

• Are free and readily accessible to all
• Can be anonymous if desired
• Will not result in the complainant facing retribution irrespective of the outcome
• Have structures and procedures ensuring impartial investigation of all complaints
• Have an adequate, effective and prompt reparation mechanisms (e.g. ranging from restitution (i.e. the restoration of human rights) to compensation (i.e. to cover any economically assessable damage)

Companies may also consider implementing confidential whistle-blowing hotlines operated by third parties. This will provide a higher degree of assurance against retaliation to employees making complaints, and will also offer them an avenue of redress that does not rely on company hierarchy that may be part of the problem in the first place. Companies might, for example, consider the appointment of a third-party expert to oversee the handling of complaints and ensure that impartiality is maintained throughout the process.

As noted in The Labour Principles of the United Nations Global Compact - A Guide for Business, any such mechanism should take into account any cultural, linguistic, religious and other issues/sensitivities that can prevent employees from raising concerns and grievances.

5. Capacity building for disadvantaged minority groups

The UN Global Compact's ‘Human Rights Translated' document suggests that companies may wish to "engage in employee mentoring, skills training, or sponsoring of programmes to combat discrimination and/or to bolster the career prospects of disadvantaged groups."

In its ‘Good Practice Note on Non-Discrimination and Equal Opportunity', the IFC notes that while positive discrimination or affirmative action programs can be controversial (and unlawful in some countries), certain interventions can lead to real results and have genuine benefits for the business involved.

Companies anticipating a long-term presence in an area might also contemplate taking measures to enhance the local labour pool with a particular emphasis on training and education for minority community members. Such an approach can be particularly worthwhile in locations where the disadvantages of certain minorities contribute to a lack of development and/or local – and companies seek to improve their operating environment.

Companies might consider the following capacity building initiatives (subject to local requirements and company objectives):

• Mentoring/leadership training: The mentoring of minority personnel (for example through formal programmes involving senior managers and other staff) can help employees gain insight into how to best develop careers, acquire readily applicable skills (e.g. project and cost management, planning, budgeting and financial assessments etc.) and to gain leadership knowledge. Leadership training might include one-on-one sessions with an executive coach, participation in networking events, 360 degree feedback of the employee's current position and detailed talent assessments
• Succession planning: In cases where local people or minority groups lack the short-term capacity to proceed to higher skilled positions, formal succession planning can provide a long-term solution. This involves the targeted development of specific personnel to ensure they have the potential to fill key organisational roles as they arise
• Pre-employment training/targeted recruitment: Companies can specifically target minority groups through pre-employment training programmes and recruitment drives. This can be particularly useful where there is a clear underrepresentation of minorities within a company – as well as perceived barriers of entry
• Scholarships: Offering scholarships and/or training grants to members of minorities – particularly where they are subject to socio-economic and educational disadvantages – can help ensure they enjoy a more level playing field when applying to work for a company, or to progress their careers within a company
• Language courses: If language is a barrier to the employment and advancement of particular minorities, the provision of language courses can expand opportunities and make the workplace more cohesive

In some cases, there may be official requirements in place relating to capacity building amongst groups who are perceived to have been historically disadvantaged. In South Africa, for example, Broad-Based Black Economic Empowerment (B-BBEE) was launched to redress inequalities originating from the Apartheid era. It does so by giving historically disadvantaged groups (‘black African', ‘Coloured', ‘Indian' and ‘Chinese' South African citizens), economic opportunities that were previously unavailable.

Under B-BBEE, private companies must adhere to a set of specific codes if they want to do business with any government enterprise or organ of state (e.g. to tender for business, apply for licences and concessions, enter into public-private partnerships or buy state-owned assets etc.). For example, any business that turns over more than R35 million (USD4.8 million) a year is evaluated against a ‘B-BBEE scorecard' that uses seven different measures:

• Ownership
• Management control
• Employment equity
• Skills development
• Preferential procurement
• Enterprise development
• Socio-economic development

For example, within this framework (as well as related terms under the South African Mining Charter), Gold Fields Integrated Annual Review 2013 notes that Historically Disadvantaged South Africans (including white women) makes up 70% of its total workforce in South Africa – as well as 44% of its senior management.

6. Promote diversity in procurement

In some situations, companies might promote a specific code of conduct amongst key business partners (e.g. suppliers and sub-contractors), which addresses the treatment of minority groups. In some cases, companies may even require supplier compliance with such codes as a condition of doing business with one another.

Where supply chains are too complex for a ‘global' approach to implementation, efforts can at least be targeted at first or second tier suppliers in particularly high-risk countries and sectors, so that they are required to uphold relevant company standards. This can be achieved, for example, through the ‘cascading' of supplier obligations through appropriate contracting practices.

Relevant items to include in a supplier code of conduct action might include, for example:

• Development and implementation of non-discrimination policies to ensure the rights of current and potential minority employees are full protected
• Training of managers to identify, pre-empt and address different forms of discrimination and harassment
• Creating internal reporting and grievance mechanisms to allow for the free, adequate, effective, prompt and confidential reporting of cases of discrimination and harassment
• The application of recruitment processes that do not show a preference for specific groups – and do not discourage minorities from applying on the basis of ethnicity, religion, culture or other relevant aspect
• The monitoring of key indicators to track anti-discrimination and diversity performance (e.g. workplace composition, management composition, pay and benefits, etc.)

Companies can (subject to local laws) also apply preferential procurement to increase the proportion they spend with minority suppliers – or suppliers who benefit minority individuals. In 2007, for example, Walmart added ‘diversity' as a specific criterion to the list of what the company expects from its major suppliers. By 2012, the company spent – via its Supplier Diversity Programme – USD11.6 billion with women- and minority-owned businesses – including USD8.9 billion in direct spending and USD2.7 billion in "second tier" spending. Walmart works with a range of organisations to engage with potential suppliers, including the National Minority Supplier Development Council (NMSDC), Women's Business Enterprise National Council (WBENC), and the USLBN Disability Supplier Diversity Program (DSDP).

As with internal capacity building, the promotion of diversity within procurement can be subject to official requirements. B-BBEE in South Africa (see above), includes criteria requiring companies to procure from recognised B-BBEE suppliers as part of their overall qualification. According to its Integrated Annual Review 2013, for example, mining company Gold Fields spends 72% of its procurement budget in South Africa (or USD225 million) on B-BBEE suppliers.

The Portal for Responsible Supply Chain Management provides a set of tools and information aimed at supporting companies seeking a responsible approach to supply chain governance. The Portal is the outcome of the Laboratory for Responsible Supply Chain Management, which was led by Hewlett-Packard, Titan, Volkswagen and L'Oreal and included input from CSR Europe, the Business Social Compliance Initiative and the Hellenic Network for CSR. Among other things, the site provides reference materials related to codes of conduct and auditing, as well as international standards and voluntary initiatives. In addition, the site provides links to a series of case studies describing the way different MNCs have sought to manage their supply chains in a responsible way.

See Non-discrimination and minorities case studies

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Minority groups

There is no internationally agreed definition for groups that constitute minorities. Nevertheless, the most common description of a minority used by the UN can be summed up as a non-dominant group of individuals, who share certain national, ethnic, religious or linguistic characteristics and demonstrate a sense of solidarity to preserve those characteristics.

Examples of ethnic minorities include, for example:

• The Kurds in Iran, Iraq and Turkey
• Afro-American citizens in the United States
• Coptic Christians in Egypt
• Brazilians of African descent
• Ethnic Chinese citizens in South Korea

There are instances when an ethnic group that has a numerical majority may nonetheless be subjected to inferior treatment (e.g. the non-white population in South Africa during Apartheid). In other cases, a group which constitutes a majority in the country as a whole may nonetheless be a minority within a particular region of a country (for example, Kosovo Albanians in northern Mitrovica). In such cases the ‘majority' can, in effect, be considered a ‘minority' due to – for example – localised discrimination and lack of empowerment.

Although in the practice of international law, certain minority rights have been deemed applicable to migrant groups and non-nationals who share a certain ethnic, religious or linguistic identity – all migrants, refugees and non-national groups are protected against discrimination by the general provision of international law, and have additional rights guaranteed in, for example, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the Convention Relating to the Status of Refugees (1951); the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country In Which They Live.

As with minorities, there is no singular international definition of indigenous peoples. While indigenous peoples can claim minority rights under international law, there are specific UN mandates and mechanisms specifically dedicated to them, which are not applicable to persons belonging to other national, ethnic, linguistic and religious minorities. This means that the approach taken by businesses with regard to minority groups and indigenous peoples should differ.

Main areas of concern regarding the protection of minority rights

Based on the experiences of minority communities globally – and on the relevant international standards relating to minority rights – there are four key issues of concern:

• Protection of a minority's survival and existence through the prevention and combating of violence against them, as well as forced expulsion and genocide
• Protection and promotion of cultural and social identity, including the right of individuals to choose which ethnic, linguistic or religious groups they wish to be identified with, and the right of those groups to affirm and protect their collective identity and to reject forced assimilation
• Effective non-discrimination and equality, including the ending of structural or systemic discrimination and the promotion of affirmative action when required
• Effective participation of members of minorities in public life, especially with regard to decisions that affect them

High risk countries in Verisk Maplecroft's Human Rights Risk Atlas

Verisk Maplecroft's 2017 Minority Rights Risk Index measures the risk of complicity in violations committed against minority groups, including discrimination, violence and barriers to exercising their fundamental human rights as individuals and in community with others.

According to the Index 2017, the 10 highest risk economies (all of which are ranked as ‘extreme') are as follows:

Figure 1: 10 highest risk countries in Verisk Maplecroft's Minority Rights Index 2017

North Korea	Turkmenistan
South Sudan	Somalia
Syria	Pakistan
Yemen	Central African Republic
Vietnam	Iran

Main international human rights instruments relating to minority issues

The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Minorities Declaration) provides for:

• The state protection of minorities
• Their right to enjoy their own culture, religion and use of languages
• Their participation in social, economic life and decisions that affect them
• Their right to establish their own associations
• Their right to exercise their rights without discrimination

Article 27 of the International Covenant on Civil and Political Rights (ICCPR) states that "…persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."

Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) notes that state parties to the covenant should "…guarantee the rights…without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

In addition, Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), establishes the link between ‘race' and ‘ethnicity' and defines discrimination as "…any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin". Similarly, the ILO notes in its report, Equality at Work: Tackling the Challenges, "generally speaking, any discrimination against an ethnic group is considered to be racial discrimination."Persons belonging to national or ethnic, religious and linguistic minorities can often be victims of multiple forms of discrimination. The situation of refugees and internally displaced persons from minority backgrounds – and in particular women and children belonging to these groups – is of particular concern.

In this context, international instruments providing protection for children's rights and women's rights are of particular relevance. Article 30 of the Convention on the Rights of the Child provides that "in those States in which ethnic, religious or linguistic minorities … exist, a child belonging to such a minority…shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language".

In terms of employment, the ILO Discrimination in Respect of Employment and Occupation Convention (No. 111) (1958), Articles 1 and 2 requires states to implement policies to promote and ensure equality of opportunity and treatment in employment and occupation, with a view to eliminating direct and indirect discrimination on grounds of race, colour, sex, religion, political opinion, national extraction and social origin. It also requires states to address discrimination and promote equality, in law and in practice, regarding access to education and training, employment services, recruitment, access to particular occupations, as well as terms and conditions of employment.

The Draft UN Principles and Guidelines for the Effective Elimination of Discrimination Based on Work and Descent is a new ‘soft law' instrument establishing principles and guidelines that can be the foundation of anti-discrimination legislation and policy measures dealing specifically with work and descent.The scope of the principles extends to a wide variety of both state and non-state actors (including business and civil society) and covers the following areas:

• Combating segregation
• Physical security and protection against violence
• Equal employment opportunity and free choice of occupation
• Forced, bonded and child labour
• Health
• Adequate food, housing and water
• Education
• Public awareness raising and elimination of discriminatory customs
• Multiple discrimination against women
• Participation of affected communities
• Humanitarian and development assistance

Although the current legal status of this text is non-binding, it is likely that further multi-lateral negotiations will take place with a view to solidifying the content into a convention alongside the likes of the ICCPR and ICESCR.

Human rights at stake

Right to equality and right to pursue economic, social and cultural development without discrimination (UDHR, Article 2, ICESCR, Article 2): Minorities facing discrimination and other ill treatment in the workplace face having their economic, social and cultural rights without discrimination – rights which should be enjoyed by all people regardless of their status (including their national, ethnic and cultural origin/affiliation).

Right to equality before the law, equal protection of the law and non-discrimination (UDHR, Article 7, ICCPR, Articles 24, 26): Discrimination and marginalisation, as well as an absence of suitable work-based grievance mechanisms may hinder minority workers from seeking remedies for human and labour rights violations. The migration status of minorities may also impact on their ability to seek remedies for infringements on their rights.

Right to freedom of association, right to use own language (ICCPR, Articles 22, 27, ICESCR, Article 8): Minority groups are usually found in a ‘non-dominant' position in the societies in which they live and often speak languages that are not shared with the majority and/or dominant groups. Therefore, a lack of materials available in languages or dialects spoken by minorities may undermine their ability to engage with state officials and institutions, and undermine their collective bargaining options. In some countries, members of minority groups may be specifically barred from forming workers' organisations and restricted in the use of their own languages at certain stages of proceedings.

Right to enjoy just and favourable conditions of work (ICESCR, Article 7): Elements of this right include equal remuneration for work of equal value, safe and healthy living conditions and the provision of rest, leisure and reasonable limits on working hours. In states where minorities are not accorded equal protection under the law, they might be relegated (on the basis of their background) to dangerous and/or low paying jobs with less favourable employment terms compared to the majority or dominant groups.

See Non-discrimination and minorities case studies

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