The recent protests across the United States have focused worldwide attention on the gravest implications of long-standing, structural racial discrimination. The galvanised interest in a subject that has always been at the heart of the human rights system offers an opportunity for companies to reflect on how racial discrimination relates to their corporate responsibility to respect human rights.
We have seen some corporate leaders, or marketing and communications departments, making more or less bold statements against racism – some pledging funds to combat racial discrimination. These voices and philanthropic efforts may be important pieces of a broader corporate leadership response - especially in the United States where employees and workers are grappling with unfolding traumatic events. However, speaking out and engaging in philanthropy should not be confused with what is expected of companies pursuant to the “corporate responsibility to respect human rights” as elaborated in the UN Guiding Principles on Business and Human Rights (UNGPs) - the globally authoritative document on the subject.
Racial discrimination is long recognised as a human rights issue
Equality and non-discrimination are at the heart of human rights law and standards, starting with the first words of the UN Universal Declaration of Human Rights - “All human beings are born free and equal in dignity and rights”. A number of other human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), and the International Convention on the Elimination of Racial Discrimination (ICERD), address eliminating racial discrimination directly.
The rich body of human rights authority on the elimination of racial discrimination offers important insight for companies pursuing their responsibility to respect. For example, it has been internationally recognised that racism can include racist ideologies, prejudiced attitudes, discriminatory behaviour, structural arrangements and institutionalised practices that result in racial inequality. Racism can be historically linked with inequalities in power and reinforced by economic and social differences between individuals and groups.
Importantly for the company context, racial discrimination can also be the unintended result of seemingly neutral or even well-meaning policies and practices. It is also recognised that proactive measures may be needed to guarantee substantive equality (equality in outcomes) – as opposed to formal equality (the same rules applied to everyone, irrespective of outcomes).
Finally, companies should keep in mind that racism and xenophobia exist in every society in the world. In other words, there is no operating context in which racism should not be considered a human rights risk.
Beyond public statements, philanthropy – and even diversity and inclusion
The UNGPs ask companies to assess the risk that they cause, contribute to or are directly linked to racial discrimination by their products, services or operations, through their business relationships. This requires companies to take a robust look at potential involvement in racial discrimination beyond public statements, philanthropy, or even assessments of diversity and inclusion policies and practices.
Companies that are serious about eliminating their role in racial discrimination will:
1. Assess how they potentially exacerbate existing societal discrimination, which may be structural or institutionalised: While outright discrimination inside companies may be easily spotted, it is more difficult to identify when a company is exacerbating existing racial discrimination or worsening the impacts of structural or institutionalised racism.
In the context of structural or institutionalised racism seemingly neutral – or even well-meaning - products, services, policies or practices can have unintended deleterious impacts. An in-depth understanding of the context of racism and racial discrimination is needed to ensure the company is not having an exacerbating effect. This contextual understanding should be built on engagement with those who are potentially impacted by the company’s activities, as well as scientific and sociological research that helps identify existing racial discrimination and its structures that a company may have difficulty identifying.
2. Assess the company’s potential involvement in racial discrimination across its activities: While diversity and inclusion efforts within companies are crucially important for equality and non-discrimination efforts, looking at the success or failure of these human resources functions is too narrow a focus. As elaborated in the UNGPs, companies also need to assess possible involvement in discrimination in their core business and across the company’s activities – which includes all business units, operations and corporate activities. For example, companies should assess the company’s potential involvement in racial discrimination in product and services research and design, procurement, facilities siting, marketing, legal affairs, philanthropy as well as other aspects of operations - including human resources and community engagement approaches with people potentially impacted by company activities.
This means that companies must cast their net wider if they are to adequately identify their potential involvement in racial discrimination. As all company activities may lead to involvement in racial discrimination, a robust assessment would also look more broadly at who is impacted by the company’s activities. For example, the company may have discriminatory impacts on potential or actual customers, business partners or clients. The general public could also be at risk from racially discriminatory impacts of the company’s products, services or operations, as has recently been alleged with some facial recognition technologies.
Only a robust assessment across the company’s activities, with an inclusive look at potentially impacted people, will offer the appropriate foundations for knowing and showing that the company is not involved in racial discrimination.