Ogletree Deakins International Video Series: Anti-Harassment [VIDEO]
In the third video of our four-part series, international practitioners Diana Nehro and Bonnie Puckett return to cover anti-discrimination and anti-harassment rules around the world. Play the video below for a succinct discussion of the top challenges for in-house counsel implementing anti-harassment measures abroad. Diana and Bonnie also share their top five recommended steps for U.S.-based in-house counsel to take in order to reconcile their desire for an inclusive, tolerant culture with other countries’ laws that may conflict.
Diana: Hi, I am Diana Nehro; a shareholder in the international practice group of Ogletree Deakins. I’m joined today by Bonnie Puckett, of counsel with the international practice group.
Bonnie: Thanks, Diana! Want to know something that bothers me? The lack of uniformity in anti-harassment and discrimination laws around the world.
Diana: In general, I agree; prohibitions against workplace discrimination can vary a great deal from country to country. Some jurisdictions have narrow protections while others offer broader protections that are very similar to those found in the United States.
Bonnie: It’s worth noting here that in-house counsel in the U.S. spend a considerable amount of time and effort avoiding discrimination claims, including claims where no one was fired. But in many other countries, discrimination is just one type of “invalid reason” for termination—the calculus is more about whether the termination was valid than whether it was discriminatory.
Diana: And even there, protected categories differ from country to country. Protected categories include some that in the U.S. employers find extremely unusual, such as “political philosophy” in Germany, or certain convictions for minor crimes in Canada. In a country like China, employees have little recourse for racial- or gender-based discrimination, but firing a pregnant or nursing employee, or an employee out on sick leave is much more costly, and in some cases even outright illegal.
Bonnie: U.S.-based employers are also shocked to encounter laws overseas that require practices that unlawful in the U.S., such as quotas of women on corporate boards, as well as mandatory retirement ages and limitations on women holding certain jobs or working past a certain time of night.
Employers should also tailor policies to be subject with applicable law—for example in the UAE, employers cannot effectively protect LGBT citizens given that there are certain laws prohibiting same-sex relationships.
Diana: Anti-harassment legislation also varies drastically around the world and continues to evolve very quickly. In fact, some countries even legislate against “moral harassment” or “labor harassment,” which is akin to bullying and does not need to be connected with a protected category. Then there are countries like India, where laws against sexual harassment did not even take effect until 2014. But, even though India’s legislation is new, it is quite extensive and very specific.
Bonnie: So what can we do to help employers? What is the best advice that we can give them?
Diana: Well, in order to avoid incurring costly penalties, US-based employers must reconcile the desire for an inclusive, tolerant culture with local anti-discrimination and anti-harassment laws that may pose a conflict. We recommend taking five steps to do this.
1) Implement adequate policies and procedures, which may include a global equality statement that is expressly subject to applicable law;
2) Providing a procedure for receiving complaints;
3) Properly investigating complaints;
4) Keeping the complainant informed;
5) Working to ensure a healthy workplace culture, including regular attention from headquarters and trainings to reinforce.