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Opinion

15 Apr 2015

Author:
Gregory Regaignon, North America Researcher & Research Director, Business & Human Rights Resource Centre

Bringing rights home: Four reasons why the US must act to curb rights abuses by companies domestically, not just abroad

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The US Government, led by the State Department, is preparing a National Action Plan on responsible business practice, prompted by a United Nations working group.  This is a huge opportunity to address responsibility for companies’ impacts on society in a comprehensive way.  It could enable the government to build on its leadership on certain issues, through measures like requirements on responsible investing in Burma, Dodd-Frank Act provisions on conflict minerals and extractive industry revenue transparency, as well state initiatives like the California law requiring companies to report on how they are preventing modern slavery in their supply chains.  The final consultation on the government’s plan will be held this Thursday, April 16, in Washington DC. 

To date, the government has indicated that the plan will focus on US companies’ impacts abroad.  This focus is important given the Supreme Court’s decision in Kiobel v Shell in 2013, limiting lawsuits against companies over their international human rights impacts; since then, a majority of these cases in US court have been dismissed.  The State Department’s rationale is that it intends “to ensure that the time and resources dedicated to this NAP are invested strategically.”  But focusing too narrowly on abuses “over there” suggests that there is no need to improve business conduct at home.  Sadly, this is far from true.  A few recent examples:

  • Hundreds of thousands of Americans are put on probation for misdemeanour offenses with fines they cannot pay, and overseen by private probation companies, according to Human Rights Watch.  These companies provide their services to states and counties for free – but charge fees directly to the mostly poor people they are overseeing.  In many cases, these charges mount and the probationers end up in jail over fees many times larger than the original fines they were unable to pay – a modern form of debtors’ prison.  For example, Tom Barrett, a veteran, was jailed three times over inability to pay thousands of dollars in probation company fees after being convicted of stealing a $2 can of beer.
  • In Silicon Valley, gender discrimination claims by Ellen Pao – now interim CEO of Reddit.com – against top venture capital firm Kleiner Perkins were widely seen as exposing the “sexist culture” of the information technology sector, according to The IndependentThe jury in Ms. Pao’s lawsuit found for Kleiner Perkins, despite testimony that a senior colleague retaliated against her for ending their affair by excluding her from major meetings and decisions.  But during the trial in March, women who had worked at Facebook and Twitter came forth with new gender discrimination claims.
  • The coal industry has fought proposed rules designed to reduce mercury emissions, in order to prevent premature deaths of up to 11,000 people each year and harm to the brains and nervous systems of young children and foetuses.  Although the technology required is already in place at most coal-fired power plants in the United States, the industry has opposed the standards all the way to the Supreme Court, where it argued last month that implementing them would be too expensive.

None of this suggests that companies can’t be part of the solution to human rights concerns.  In fact, progress requires that companies take decisive action, as they have in a number of important cases.  Nearly every major catering company and fast food chain – except Wendy’s, which refuses to join – now works with an innovative worker-led initiative in Florida that has helped move toward eliminating forced labour and sexual abuse in Florida’s tomato fields, and raise workers up from poverty wages.  Walmart has proposed expanding the program to other crops.  US technology companies have joined the ACLU and others to speak out against NSA surveillance practices that violate users’ privacy rights.  And companies have just played a major role in rolling back an Indiana law and a bill in Arkansas that would have allowed discrimination against gays, lesbians and transgender people.

To build on these successes, the State Department should ensure that it works closely on developing and implementing the National Action Plan with other agencies that regulate companies’ impacts on human rights, such as the Department of Justice and Equal Employment Opportunities Commission, Department of Labor and National Labor Relations Board, Environmental Protection Agency, Department of Commerce, Overseas Private Investment Corporation, and US Export-Import Bank, to name just a few.

A National Action Plan that addresses impacts both in the US and abroad would go far toward fulfilling the US Government’s duty to protect human rights under the UN Guiding Principles on Business and Human Rights, which it endorsed at the UN in 2011.  Strong steps in a bold and comprehensive National Action Plan, addressing company impacts using a human rights framework, could help ensure that protections of workers and communities come to the forefront of US policy on corporate responsibility.  Civil society, leading companies that have already made human rights commitments, and initiatives in which advocates and industry have joined, all stand ready to support such an ambitious endeavour.  If the government adopts a narrower plan that does not consider human rights impacts domestically, it will have missed an important opportunity that may not recur soon.