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By Oxfam India
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Salil Tripathi On Creating LGBT Inclusive Workspace

Businesses cannot change the societal mindset regarding lesbian, gay, bisexual, transgender and intersex (LGBTI) community but it can certainly create safer and non-discriminating work environment.

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A journey of a thousand miles begins with a single step

Businesses cannot change the societal mindset regarding lesbian, gay, bisexual, transgender and intersex (LGBTI) community but it can certainly create safer and non-discriminating work environment. In a conversation with IRBF, Institute of Human Rights and Business’s Salil Tripathi, key-author of UN Standards of Conduct for Businesses- Tackling Discrimination Against LGBTI People talks about the need for creating a more gender-inclusive environment by companies.

The Supreme Court has decriminalised homosexuality in India in its landmark judgement. It is the beginning of change, what does it mean for LGBTI community in India?

What the Supreme Court has done is actually passed a law against what was called “unnatural sex”. It also applies to heterosexual couples- if they indulged in consensual activities that were not considered natural, they too could have gone to the jail under that law. It is a huge, huge thing for the LGBTI community but it also a very great deal for the personal liberties, for anybody. So we need to recognize that, or else people would say it is “a gay judgement” but I think it’s much more important than that. It is a judgment affirming human rights. It’s about recognizing that any form of consensual relationship between two individuals cannot be prosecuted anymore—this needs to be recognized and it is wonderful, especially from the civil liberties perspective.

What does it mean for Indian businesses?

Now in terms of companies, a lot of companies till now had the “three monkeys of Gandhiji approach”—they wouldn’t talk about it; they wouldn’t see what is right there in front of them, and they wouldn’t want to hear about it. I am relatively new to the LGBT activism scene and I have much to learn; one thing I have learnt is that that it is an invisible minority. In general it is believed that you can tell a man from a woman by the way they dress; you can tell the same about their colour. By name (at least in India) you can tell a person’s caste, religion, community, and so on. But LGBT is an invisible minority; you don’t know who is or isn’t gay or lesbian unless they choose to reveal it.

So, the companies who have dealt with this issue in the West tell me that they don’t want people to conceal that part of their identity because they want the individual to engage meaningfully with the corporation. And if the environment in corporation is hostile to specific communities then individuals are not going to like it. And then therefore they will bring less than themselves – they won’t bring their full being to the job, and that’s not good, because then people are always going to look out for other places where they are more included and move on, and that is not good for morale in the company. It’s because of this approach, a lot of people were left as “closeted”—they were left unhappy and their morale was low. This is something that hasn’t been recognized widely anywhere. A 2015 World Bank study found that discrimination against the LGBT community cost the country up to 1.7% in gross domestic product, which amounts to around $32 billion, owing to lower economic output because of discrimination. This is an inefficiency built into the system because the community was not fully connected and included.

In a way, this judgement opens the door for companies to fully embrace them and there are two ways of doing it—i) maintain records properly, and a more sophisticated and better way of doing it is-- ii)to let people reveal themselves (self-identification). People can come forward and seek support from the company. For instance take the recent Tech Mahindra’s case—Gaurav Pramanik was actually heard out after the judgement came and he revealed his story and the company took appropriate action regarding the concerned manager. I think, that’s going to happen more often. People are going to feel emboldened—“Look, I cannot be bullied for who I am. I am what I am”. The point is, companies can no more discriminate because if they do, then they are going to be losers in the end. In India, Lalit Group and Godrej Group (India Culture Lab) are doing really well on this front.

As far as the Indian society is concerned, discrimination, nagging, bullying, and so on are not going to stop and disappear, but the Human Resources department at any company will have to be more vigilant now because they don’t have any excuse.

You have played an instrumental role in developing and promoting the ‘UN standards of conduct for business tackling LGBTI people’. How have companies responded to and adopted the standards, especially in India?

The progress has not been very significant, although India played a very prominent role in development of the standard. About 8-9 Indian companies came to the initial consultation, as did 4-5 affiliates of multinationals. Among MNCs there were large banking, consulting and IT companies from Bengaluru, and they said that “Look, we don’t really need this new standard because we have to follow these policies anyway”. Indian companies however told them that “We do need you here” because if they simply say that these are international standards to their bosses, then the bosses won’t listen to it because it is not legally required, but say, for instance, Goldman Sachs does it or McKinsey does it, in Indian then that is something to be taken seriously here too. It was a very good learning experience, and we understood that it’s an effective way to influence behaviour through good practices in MNCs.

Private companies are still making an effort, however, small. Do you think public sector enterprises are doing enough?

When we actually did our launch event, there must be 200 people in the audience and around 20-30 companies were there—a lot of tech companies were extremely receptive, a lot of financial services companies, banks were very receptive too – but also they were largely in the Private Sector. You are right in noting that the Private sector is ahead on the curve there. Beyond that, I think somebody senior in the organisation needs to champion the agenda and not just the LGBT group. The community is a lot happier when allies help them; they don’t want to be seen as struggling alone, they want others to join in, support them, and it affects all of us. If companies have to start embracing them, now they don’t have any legal excuse, they need to do more. This would be very good.

What more can be done?

Workshops, they can have listening sessions, they can have learning sessions. When we met at Godrej’s Culture Lab, I remember about a “quiet dialogue” with 15-20 companies where they just discussed such issues. A very moving example was of one company (that did not wish to be named) which said that there was a homosexual couple that wanted to get married. Of course it’s not legal in India, but the couple wanted to have a Hindu wedding in Maharashtra and the boss was invited to the wedding. Now the boss was in quandary-to go or not to go. But he went and it was a cheerful event. Now this is something that will not be legally recognized, but it was an important event for the staff and they did it. These are the positives, it needs to be done to make the community feel not alone.

Out of a list of nearly 200 multi-national companies endorsing UN's LGBTI standards at work, only 2 were Indian companies--Lalit Hotels, Godrej. Why only two companies and why not twenty?

To be honest, it’s not really companies’ fault here. We on our side (incuding the UN) have not done much by way of propagating the message more widely. In Indian media also there were only two pieces that came out.

I think there’s a lack of awareness amongst Indian companies but in that they aren’t alone. The MNCs operating in many parts of the world, like Microsoft, are doing their bit. I think Indian companies that are outwardly oriented, those who work a lot with the international companies, say TCS, Tech Mahindra, Wipro, Infosys, etc would be obvious candidates where more can be done, and should in theory be very much willing to accept the standards. But it needs somebody in India to become a champion of the standards and at the moment I think it needs to be a broader movement and Human Rights Groups should take it up along with the LGBT community. It should not be just a community taking about its rights, or else it will remain ghettoed and it is important to take it to the mainstream. Therefore, it becomes important to talk about it openly, from a podium, maybe. If something like that happens, more companies would see the logic.

The Standards are not legally binding, it’s not mandatory. It’s mostly good practices and also it gives a company the option of opting out in some cases. For example take countries like Malaysia and Singapore where you still have laws that criminalize same sex relationships, and there you (companies) don’t have to go on a pulpit and propagate the Standard. What we say is “See how can you be helpful”, ask the local LGBT communities what support they need and quietly provide it, and use your office and influence in leverage to change the thinking of the government. It doesn’t mean you have to take out full-page ads. And I think many companies will be willing to do that.

While only two companies in India (now three; Infosys has since signed up) signed up to the Standard, when the second Delhi High Court judgment on 377 came out (which recriminalized same sex relationships, negating the progressive earlier judgment from the same court), a lot of companies came out with advertisements supporting same sex relationships—Tanishq watch was one of them, Hidesign, Amul, Anouk Clothing. I think these companies did step out of their comfort zone and did champion the cause. Yes, from a narrow perspective it would be great if more companie sign the UN Principles but even if they don’t, they should continue these activities. Also they should make sure that their own companies have zero tolerance on bullying because if you have hostile environment within the company then what’s the point?

What are the challenges ahead in front of Indian companies at the policy level?

The problem is that a lot of Indian companies are at an early stage of working on Human Rights. They see it either as a political matter that only the government can fix or deal with, or they see Human Rights as essentially nothing other than philanthropy. So they say that ‘we give donations to Anganwadi’ or ‘we provide for mid-day meals’, or ‘make sure that girl students have uniforms’, etc which are of course all good activities but they see Corporate Social Responsibility (CSR) activities as part of their Human Rights work. Even if you do ten good things for the community, that cannot be balanced out with one bad deed. And I think they need to imbibe the policy of non-discrimination internally and they have to look beyond. LGBTI rights of course are a very crucial component, but it also means gender empowerment, and trying to understand the caste dimension in India. Why are there so few Dalits or Muslims above certain positions? These are the questions they need to ask themselves. And when it becomes intersectional, when you have caste and religion and the languages and then sexuality involved; it becomes even more complicated. Just imagine a Dalit, Muslim, Woman and a Lesbian - how much worse can life be for such a person, given all the discrimination that exists? And why should such discrimination exist?

The UN Standard emphasises on the need of strong monitoring mechanism. How can civil society and communities monitor companies’ commitment on the UN Standard?

Communities should demand greater transparency. Now of course the problem is of knowing the reality. Let’s say if you have 11% LGBT staff: a) you will never know because they might still be unwilling to come out; b) even if they do should you be advertising it? Aren’t you then compromising with their privacy? These are very important concerns. Here, consent becomes the key. If an individual has given consent to the company with regard to their sexuality and the company wants to go in public and defend that, saying “Look our CFO is gay and we have the mechanism to make LGBT community to feel part of the organization and not feel excluded,” that’s fine. I think companies should talk about it with the consent of the individuals. These are the kind of indicators that the Civil society should demand. They should state that we need such-and-such information. Unless you know the data, how will you know whether you are getting it right? Data is necessary to measure discrimination statistics.

Do the standards apply for the supply-chains of companies?

The first part – hiring for your own operations – is easy because it’s within a company’s control. Suppose I am hiring 200 people then I am responsible for them. But if I have five suppliers and they hire 300 people each and they have sub-suppliers, then it becomes difficult because they are not my employees. So what I can do here is use my leverage and influence—if the supplier does 90% of their business with me then I have greater leverage because if I go away as a client, the supplier will go bankrupt. On the other hand, if I am only a 5% buyer from them then the supplier becomes more powerful. As a company I need to figure out where my leverage is greatest to bring about change and where is the acuity greatest.

Child labour is a very good example. If a company finds egregious cases of child labour where there are fatalities or serious injuries or the children work for 16-hours or if they work in unsuitable circumstances, then the company has much higher responsibility than a company that does hire children but give them safe simple tasks, 3-hour work a day, mid-day meal and education. This is not to say that child labour is desirable. But we must remember not to let the ‘perfect’ be the enemy of the ‘good’.

This is what happens in some industries in Gujarat and other states—you do have children working but in a safer environment. Some companies have scholarships so that those children can later pursue higher studies. I think there are creative ways to act responsibly, without condoning child labour. Companies need to do due diligence and figure out where the violation is greater, and act and be persuasive. And yes, it sometimes means that you drop a supplier because the supplier has persistently violated your standards in spite of warnings. There has to be some sort of mechanism similar to quality-control. Suppose if you are a food company and procuring sugar from a supplier and it’s contaminated then you will act promptly after a warning or two, and if it continues even after that, you’ll drop them. The same policies that companies have for product safety should be applied in cases of discrimination as well.

How long can it take until supply chains of business in India also become inclusive of LGBTI people?

I cannot give a precise figure but it is going to take a long time. Essentially what you want is a societal change. So long as the Indian parents who find that their child is gay and don’t respect that, force them to marry a person of opposite sex and so on, a company cannot alone change the society. A change in attitude has to happen and that is going to take unfortunately a long, long time.

But what the company can do is say that if a person is in a very hostile environment at home, then they can transfer them to a place of their choice, move them to a safer environment because there the person can express themselves more openly and be more productive. Companies certainly cannot intervene and change the mindset of the society - but they can take small steps. For that to happen companies have to be extremely receptive and the individual has to trust the company. Companies need to listen to their employees and build trust.

What would you ask other Indian companies to do in the short term to adopt the standards? Especially in context of the SC judgement.

First of all they should do as much as they can to eliminate stigma because with the judgment, technically there is no stigma anymore, at least in law. I have not spent substantial time in India after the judgement came out, but I have come across several anecdotes—a lot more people are now open about their partners, same sex relationships are celebrated—even if they cannot get legally married, people are celebrating anniversaries - the day they met. So what happens if the wish to celebrate and to cut cake at work? Companies should welcome that.

It’s not hard at all! Just make the environment more inclusive. Yes, some people might feel differently, but there are Hindus, Christians, etc taking part in Eid celebrations right? So, I would say step out of own comfort zone and make the comfort zone much larger for everybody.

Also, this means there will be couples who cannot be legally married and are going to be single on the records of the company (while calculating benefits), so at the very least what companies can do is to treat them as a couple. If they have to go to other cities, in India or abroad for postings, make it possible for them to go together. If your policy is to give apartments to married couples, then give them one too—treat them as a couple. These are very small, doable changes and should be done. A thousand mile journey begins with a single step; companies have to take that step!