Business must do more to protect the rights of LGBT+ employees

Discrimination in the workplace often leads to fear and deceit, which in turn could affect company performance

The stance taken by the Department of Home Affairs in refusing entry to a notoriously homophobic US pastor, Steve Anderson, is very encouraging for the LGBT+ (lesbian, gay, bisexual, and transgender) community, who are often silent in the workplace. What is also not spoken about is the role of business in protecting and promoting the rights of employees who are part of this community.

In SA, we have a legal framework that outlaws discrimination based on gender and sexual orientation. It is disheartening that there has been very little momentum from business in living these constitutionally enshrined values and adhering fully to statutes that flow from constitutional principles — including the Employment Equity Act and the Companies Act.

The Companies Act begins by setting out its purposes, the primary one being to promote compliance with the Bill of Rights in the application of company law.

One of the ways this should be done is to allow all employees to be comfortable coming to work by creating an inclusive corporate environment. Major corporations must, and other companies should, establish a social and ethics board committee.

The committee’s role is to monitor the company’s activities as a good corporate citizen and call the board to account if it fails in helping the company promote equality and prevent unfair discrimination.

The company regulations help turn that into something tangible by setting goals relating to the equitable employment standards in the Employment Equity Act and the 10 principles in the UN Global Compact.

Because strikes make headlines, we tend to forget that SA’s employment laws do not only deal with labour disputes, strikes and wages. The main purpose of the Employment Equity Act is to require employers to promote the constitutional right of equality and to eliminate unfair discrimination on every equality ground in the Constitution, including sexual orientation.

Discrimination can take silent and subtle forms. Someone who comes to work every day and is afraid to be themselves because it could have adverse consequences for their jobs and their relationships with colleagues are precisely the people the statute is intended to protect. Anything that prevents any of us from realising our potential is unfair.

The UN Global Compact is an international framework for the way businesses should operate. Companies are enjoined to not only support and respect human rights, but to make sure they are not complicit in any human rights abuses, including discrimination.

With the celebration of 21 years since the adoption of the South African Constitution and a rise in reports of hate crimes at home and abroad against LGBT+ people, we have to focus on the fact that much work has to be done.

This was acknowledged by former home affairs minister Malusi Gigaba. It is no longer enough, nor is it useful, for us to gloat about a “world-renowned and exemplary Constitution” if it is not lived.

One of the important qualities of our Constitution is its role as an instrument to promote diversity and protect human rights. In its preamble, the Constitution speaks of equal protection by law and of the intention to free the potential of each person.

The power of business has a crucial role in giving life to our constitutional aspirations. This is where opportunities for work and growth are often found. It is in workspaces in which we develop our values as adults.

It is where we learn to interact with those who are different from us. It is where we spend most of our time and live our deepest aspirations — whether we work within these businesses or work with them in selling our talents, goods and services.

This means it is these environments and the cultures they adopt and values they live that can deliver real change on a big scale. For companies, it will not take much effort or cost much. The goal should not be to create a structure but to establish the right attitude. Good attitudes have good outcomes, achieved by adopting an inclusive and accepting culture from the top down.

Why then have so few of our corporate citizens used these legal provisions and applied these requirements as socially responsible and responsive economic participants with regard to LGBT+ people — especially when this ought to be a legal compliance issue?

Apart from companies embracing diversity as a matter of complying with the law, there is another critical consideration to be borne in mind. Embracing diversity and creating open spaces are critical for the preservation of the corporation and the entire financial and economic system.

If we have learnt one thing from the global financial crisis, it is the importance of creating the right kind of incentives within the business environment.

Commentators, academics and analysts have argued that the failure of the financial system was the failure to produce the right kind of incentives. Many blamed the incentive system that had been built into the corporate reward model. In this sense, they argued it was all about reporting the highest profit for the highest bonus, no matter what. This resulted in losses being hidden from investors and profits artificially constructed.

Similarly, to incentivise closeted workplace identities is to incentivise “constructed” identities that can be very harmful.

We know that discrimination against the LGBT+ community has forced many into denial and others to construct false identities to protect themselves from discrimination. Corporate and social discrimination has thus incentivised a culture of self-construction on the part of many LGBT+ people because they could not be honest and safe.

By forcing people into hiding to protect themselves from discrimination and to safeguard their economic prosperity, are we not playing into the problem we saw with the financial crisis?

This too could have devastating consequences for shareholders and society.

Further, can we separate the deceptions we perform relating to our private lives from those we perform in our public lives? In this regard, the British historian RH Tawney warned that “To argue, in the manner of Machiavelli, that there is one rule for business and another for private life is to open the door to an orgy of unscrupulousness before which the mind recoils.”

It should be said, of course, that just because employees have been forced into the “closet” in the workplace does not necessarily mean they are inherently dishonest. However, the risks of entrenching these behaviours are present.

SA has a strong and nuanced legal system on which to begin work towards a more open, fairer and safer society.

Our government has very publicly thrown its support behind the protection of the LGBT+ community. Business is an equally critical player in being faithful to what Nelson Mandela referred to as the covenant “… that we shall build the society in which all South Africans, both black and white, will be able to walk tall, without any fear in their hearts, assured of their inalienable right to human dignity … and let each know that for each the body, the mind and the soul have been freed to fulfil themselves.”

Bracher is an attorney and director at Norton Rose Fulbright, Payi is an economist and co-chair of The Other Foundation.