It's not a small world after all when it comes to crafting anti-discrimination policies and practices for a global workforce, employment law attorney Donald C. Dowling Jr. says. Dowling advises U.S.-based multinational employers on human resources policies.

More U.S. employers with overseas operations are instituting global anti-discrimination policies to ensure that their personnel abroad are working in an environment free of bias. The policies may be too U.S.-centric in their approach, however.

Dowling, a partner at White and Case LLP in New York, tells Bloomberg BNA that the number one challenge in drafting an international discrimination policy is resolving the issue of how to address protected groups. Protected status is important in any discrimination policy or provision.

U.S. federal laws prohibit employers from discriminating against an employee or job applicant based on religion, gender, race, disability, genetic predisposition, national origin, age or veteran status.

Protected groups and traits vary depending on a country's laws and customs, however. The U.S. is one of the few countries where veterans are a protected group, for example, while homelessness is a protected status in Ireland. China grants protected status to citizens from its rural provinces, and South Africa protects HIV status.

"[T]he challenge in exporting U.S. anti-discrimination practices and policies to countries with less-developed equal employment opportunity doctrines is that discrimination statutes and cultural perspectives outside the U.S. differ, in their particulars, from the U.S. domestic approach," Dowling writes in his new white paper on international EEO compliance.

Bloomberg BNA: What practical advice would you offer a U.S. employer that wants to ensure that its overseas workforce is conducting business in a nondiscriminatory environment?  

Dowling: The employer should first ask: By providing a nondiscriminatory work environment, do we mean nondiscriminatory under U.S. standards, or under local standards?  

In the equal employment opportunity policy and diversity context, it's all too easy to export American metrics and definitions, but doing that is far less helpful to the local workforce. Indeed, it's essentially a "tick the box" approach. The American headquarters can tell itself it's doing something about EEO in its foreign workplaces, when it really isn't doing much. 

Think of India, for example. It would be easy to export U.S. EEO tools and diversity definitions and metrics to India, as many American companies have done.

But doing that can be so meaningless. It might actually be futile. Your India facility's employee and job applicant populations will show up as something like zero percent white, zero percent black (and certainly zero percent African-American), zero percent Native American/Pacific Islander, zero percent Hispanic and 100% Asian. That looks like an imbalance, but it's only an imbalance from an American perspective.  

Meanwhile, the American perspective is blind to the real diversity dimension--apart from gender and age--that matters in India, to Indian job applicants and Indian employees. And that is caste. Is the workforce caste-balanced or does it favor the upper castes and discriminate against lower castes?

The American company won't know, because it never bothered to ask that question. Think in terms of local diversity dimensions, or else confine discrimination and diversity concepts to gender. Except in Saudi Arabia, where gender segregation rules forbid Western-style gender equity and require a separate but equal doctrine.

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