Non-Discrimination

Rights and Wrongs - Questioning Free Expression in the Workplace

Commentary, 17 September 2019

By Salil Tripathi, Senior Advisor, Global Issues, IHRB

How can companies negotiate their way around deeply divisive political issues where their employees, contractors, suppliers, and associates may have strong convictions and opinions? Can companies keep politics out of their offices? Can they restrain their employees’ right to participate (or not) in political processes? Several recent instances from different parts of the world show that taking such decisions is not a simple matter.

Can companies keep politics out of their offices? Can they restrain their employees’ right to participate (or not) in political processes?

When individuals work for companies, they are not expected to submerge their identities and opinions to mirror those of the company. For example, in the US, the National Labor Board settled a political bias claim case against Google by two employees, requiring the company to let its employees speak out on issues that concern them. Companies have to walk a fine line between letting employees express themselves whilst also guarding the company’s reputation. 

These tensions can be exacerbated on sensitive matters of political opinion and religious belief.

There is lack of clarity... and a danger that companies will take ad hoc decisions that may undermine human rights.

These issues have profound consequences for companies that grapple with mainstreaming respect for human rights in their operations. There is lack of clarity about what is acceptable and what is not, and in the absence of a framework or guiding questions, there is a danger that companies will take ad hoc decisions that may undermine human rights.

Many executives say, rightly, that they want their employees to bring their whole beings – entire identity – to their workplace. I have heard that phrase often in the context of employees who may be lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI). Companies rightly want to integrate these employees in the workforce and not to permit any harassment or bullying. But what is a company to do when the person seeking inclusion holds views that are controversial or denigrate others’ rights? For example, would an employee be able to opt out of a team which has a lesbian colleague because of her or his religious beliefs concerning sexual orientation? Can an employee run a campaign supporting, say, a white nationalist candidate for a political office, even if it is in their non-working hours, when the workforce is ethnically mixed and the company has robust policies promoting diversity and inclusion?

The answers to these questions may seem self-evident, but it is important to lay down clear guard rails that promote and support human rights in developing policies. Applying a human rights lens magnifies key questions as to what action is appropriate.  

Applying a human rights lens magnifies key questions as to what action is appropriate.  

Turning to the USA…

In August, US President Donald Trump spoke at a rally in Pittsburgh at a Royal Dutch Shell petrochemical plant. This raised questions over the use of White House resources for what was essentially a political rally that should have been funded through Trump’s re-election campaign. That apart, the plant’s union leaders received a memo, which Shell has denied sending, saying that workers’ attendance at the rally was ‘mandatory’. Workers reportedly had to sign in early, attend the rally which would run through lunch (no lunch was offered) and in so doing would get paid. If they chose not to attend, they would get an excused – unpaid – absence and wouldn’t qualify for overtime. Reports allege that these instructions came from Shell; the company said the memo it sent the unions was in different language, but would not clarify whether it provided such detailed instructions.

Questions of political ethics apart, the incident highlights a problem that needs greater clarity:

Should a company coerce employees to attend political events?

Should it force employees not to attend a rally?

And if workers don’t attend the event that the company says is required, should the company withhold pay?
 

Now turn to Hong Kong…

Pro-democracy protests have brought the thriving economy to a standstill for much of the summer, and the protests show no signs of abating. Hong Kong was a British colony till 1997, and under the Basic Law that China and Britain signed in 1984 to establish the rules for governing Hong Kong after the handover, China agreed that it would respect Hong Kong’s freedoms, in the so-called ‘one-country-two-systems’ model. Yet Hong Kong citizens are protesting against Hong Kong’s pro-China leadership promulgating an extradition treaty that would hand over Hong Kong residents to China over alleged crimes. More than a million people protested the proposed law (which has now been withdrawn). Several employees of Hong Kong’s flagship airline carrier, Cathay Pacific, participated in these protests, and Chinese Government officials are angry. Since then, employees have reportedly been feeling the pressure, including being interrogated by supervisors and fired if found to be supporting the demonstrations in person or online. 

China expected Hong Kong business executives to prevent their employees from participating in political protests. Chinese entities have significant interests in many Hong Kong entities, and Cathay Pacific is no exception – Air China has minority interest in the airline. Its chair, John Slosar, said political views of the company’s employees were not the airline’s business. “We certainly wouldn’t dream of telling them what they have to think about something. They are all adults. They are all service professionals. We respect them greatly,” he said. Days later, Slosar resigned, as had the airline’s CEO, Rupert Hogg a few days earlier. 

A second set of questions:

What happens to executives who not only respect, but actively protect, employee freedoms to express their views?

What are the protections for executives who permit their employees to exercise their rights – regardless of whether they or their company agrees with those views?  

 

Now turn to India…

In late July, the Indian food delivery company Zomato landed itself in controversy, after a customer complained that the person delivering food to him was a Muslim, which offended his Hindu sensibilities. Many Hindus observe elaborate caste rituals, which may include not touching food delivered to them or prepared by someone not from their caste. Millions of Hindus eat at restaurants in India and elsewhere daily, where the people serving them or cooking the food are quite likely not from their caste. Religious fundamentalism is rising in India, and discrimination against Muslims and other minorities has increased since the election of the Hindu nationalist Government in 2014 (re-elected in 2019). That has emboldened many Hindus to make prejudicial remarks in public.

The Zomato CEO would have none of it; he stood by his staff and tweeted that ‘food has no religion.’ His intervention landed him in a soup, as a Twitter-storm broke out, criticising the company for offending religious sentiments of Hindus. A few weeks later, in what analysts said was a politically-motivated move, Hindu and Muslim employees of Zomato in West Bengal threatened to strike, saying they were forced to serve food that their religion forbade. (Some Hindu employees said they didn’t want to serve beef and some Muslim employees said they didn’t want to serve pork.)

A third set of questions:

Should employees be able to claim religious exception not to perform specific work related tasks?

And should customers be able decline service from individuals because of their faith, political beliefs, or arguably, sexual orientation?

 

Taking a Rights-Based Approach

These are not random cases, and as the political environment gets more contentious in many countries, company executives will get drawn into these issues more frequently, where they will have to evaluate whether or not actions by employees are permissible. In some instances, employees may be violating laws that restrict personal freedoms (such as restrictions on peaceful demonstrations). When religion is added to the mix, it leads to even more challenging dynamics (such as refusing to serve same-sex couples, or even interracial couples – I will write more about that another time…).

As the political environment gets more contentious in many countries, company executives will get drawn into these issues more frequently.

I believe the human rights framework helps identify the beginning of the solution:

No company should force its employees to act against their political views, unless those political views undermine human rights or infringe upon the human rights of others, including colleagues, associates, and customers.

Based on that principle, a company should not penalise workers who do not wish to attend a political rally. Executives are right in letting their employees make their own decisions on political matters and not take punitive actions against those who may be demonstrating peacefully at a political rally. Employees can have reasonable religious exemption from performing certain duties (such as cutting meat products in a kitchen if their faith prevents them from hurting animals) but they cannot discriminate between customers based on their political beliefs, religious persuasion, or their gender or sexual orientation.

No company should force its employees to act against their political views, unless those political views undermine human rights or infringe upon the human rights of others, including colleagues, associates, and customers.

These rules cannot be set in stone, they do need flexibility, and as the examples show, their interpretation will vary and might invoke controversy. But companies do not live on hermetically-sealed islands, and as the political currents in Hong Kong, India, and the United States show, executives will not be able to say they were following the law, because the law is often unclear and might even contradict the rights-based approach. The key is that each case is guided by these rights-based questions. Recognising and respecting the rights of the affected employees, and assessing the impact on the rights of others are the necessary steps forward.

 
Photo by Joseph Chan on Unsplash

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