On the International Day Against Homophobia, Transphobia and Biphobia, Nick Marshall considers some of the challenges faced by global employers operating in countries with poor records on LGBT rights.

Applying global values on the ground

With an increasing focus on Diversity & Inclusion, many international employers are finding it difficult to balance their global values with the reality of doing business in legally, socially and culturally conservative countries – particularly when it comes to LGBT rights.

So, how can companies apply their global values (think: “inclusion”, “respect” and “equality”) in countries where an individual can be sent to prison (or worse) for being LGBT? Spoiler alert: there’s no easy answer.

Employee mobility

A common issue is how to deal with sending employees on assignment to countries which do not respect LGBT rights. As Stonewall points out in its excellent guide “Safe Travels”, same-sex sexual activity is criminalised in more than 70 countries (including some surprising locations which hold themselves out as good places to do international business). However, it’s important to remember that criminalisation is only one issue faced by LGBT individuals, along with lack of employment and other protections, and hostile cultural and social environments.

So, what should employers do when considering whether to send an LGBT employee to a country where homosexuality is illegal, or which has a hostile environment for LGBT people?

• Some LGBT employees might not be openly “out”, so identifying if there is an issue to discuss in the first place is not easy. Employers need to be careful to respect their employees’ privacy by not making assumptions about sexual orientation or gender identity.
• Many LGBT employees will be comfortable deciding for themselves that, despite a country’s record on LGBT rights, they feel comfortable going to work in that place. That’s not to say that they don’t want guidance or support along the way (or at least to know where to get help if they need it).
• Taking decisions without the employee’s input isn’t helpful. On the one hand, employers have a duty of care towards employees, and will not want to put them in harm’s way by exposing them to dangerous situations. On the other hand, taking an overly protective view by denying an individual the right to take up an assignment might be seen as patronising, and any loss of opportunity might potentially be unlawful discrimination on the grounds of that employee’s sexual orientation. Employees who turn down international assignments because of their sexual orientation or gender identity should also not be disadvantaged (e.g. by being denied future promotions), as this is also likely to be discriminatory.

Supporting local employees

Supporting LGBT employees employed locally can also be risky, despite many companies having good intentions to do so. Often employers (particularly international companies which have supportive LGBT policies in place) want to offer additional benefits or protections that LGBT employees are not entitled to by law (e.g. pension rights for same-sex partners, family-friendly leave rights, or support with their same-sex partner’s visa application).

One danger is that law enforcement bodies investigating employees who are alleged to have breached anti-LGBT laws can use their powers of criminal investigation to compel companies to disclose information about the employees to whom they are providing equal benefits; so a paper trail which sets out which employees are claiming same-sex benefits can inadvertently place those employees in danger. In extreme circumstances, companies could be prosecuted for aiding and abetting criminal activity by supporting their LGBT employees in this way.

Promoting LGBT rights?

Employers will also find themselves having to decide whether, or how, to engage with local governments on LGBT rights. Some will choose not to do so at all. Others will decide to use their “soft power”, i.e. that it is better to influence (or try to influence) government policy subtly and behind-the-scenes. The argument goes that companies which are openly critical of anti-LGBT laws and practices are more likely to be frozen out of the dialogue, and to lose what influence they might have with key players in positions of power. Add to that the possibility of implicit or explicit threats to the employer’s business, such as removing licences to operate or refusing to grant visas for overseas workers, and it’s not difficult to see why many companies will decide a quiet, non-confrontational, and non-public approach is the better option.

The difficulty with this approach is that it looks as though employers are doing nothing – which leaves them open to accusations of hypocrisy (“You’re all for promoting LGBT rights, until it gets in the way of doing business”), or of abandoning their LGBT employees. With very little noticeable movement from countries with the worst records on LGBT rights, it’s also questionable whether the “soft power” approach works, or whether governments take it as a sign that companies will continue to do business, regardless of whether or not they offer basic human rights and protections to LGBT people.

Dealing with the clash of values

Clashes of cultural values are nothing new, but in an increasingly globalised world, employers have a difficult line to walk. They need to protect employees from harm without denying them job-related opportunities, and to avoid jeopardising their ability to do business in certain parts of the world without compromising their values or selling out their LGBT employees. Add into the mix the need to accommodate employees with conflicting beliefs about LGBT rights (which is a live issue even in countries which respect LGBT rights), and businesses have a tricky balancing act to perform.

As I said above, there’s no easy way forward…