Combating Gender Apartheid at Work: A Proposal for US Legislation or Executive Action

Under Article 444 of the Democratic Republic of Congo’s Family Code, women are legally obliged to obey their husbands. In Kuwait, women must receive their husbands’ permission to travel alone or apply for a passport. And in Malaysia, women are restricted from working in a range of industries, including mining and construction.

Those are just a few of the many hundreds of national laws that make gender discrimination the law of the land.

Among the many valid and compelling arguments one could make against such laws is an economic one: they place half the population — and the countries themselves — at an economic disadvantage. Countries with more legal obstacles to women in the workforce have lower female participation in the labor force, and greater gender inequality is associated with lower growth.

They also act as a tax on US business. According to a December 2014 estimate, the United States has a foreign direct investment stock of nearly $5 trillion. Much of that investment funnels into countries with laws that discriminate against women in the workplace. Those laws deny US firms the ability to attract, hire, and promote the most qualified and effective candidates regardless of gender.

Can the United States do anything about that? Faced with the similar injustice of legal discrimination against nonwhites in apartheid South Africa, the US Congress passed legislation in 1986 that encouraged US firms based in South Africa to make affirmative efforts to hire, train, and promote nonwhites within the confines of domestic law. In a new CGD policy memo, we outline a law modeled on parts of the 1986 legislation that would encourage US firms abroad (or specifically those within countries that egregiously discriminate at work on the basis of gender) to adopt a Code of Conduct that would give women better access to employment and allow them to participate fully in the workforce where legal discrimination prevents them from doing so on an equal footing with men. Parts of the proposed legislation could also be carried out under executive order in lieu of congressional action.

The proposal builds off of existing efforts such as the Women’s Empowerment Principles (WEPs), through which businesses worldwide (including a number of US multinationals) voluntarily commit to upholding gender equality within the workplace. The legislation would be designed to bring straggler US firms up to existing best practice, demonstrate such practice to local firms in host countries, and highlight discriminatory laws worldwide to stoke pressure for change.

Does this law inappropriately force American (or Western) values onto the rest of the world? We argue no:

• It only applies to US firms (and potentially only those operating in particular “countries of concern”) and it specifies that firms’ actions must not violate the laws of their host countries. And many of those firms already voluntarily commit to similar efforts in codes of conduct. 
   
• Gender equality in the workplace is a global norm, not a Western one, reflected in the Convention on the Elimination of All Forms of Discrimination against Women, the ILO Convention concerning Discrimination in Respect of Employment and Occupation, and other international agreements.

You can read the full proposal here.