The Business of Human Rights

Many times the human mind seems to allow trespasses against human rights in other parts of the world appear more inhumane than the ones that occur on our own turf. In the US, we have laws protecting people from having unwanted sexual advances pressed upon them from their co-workers and bosses. And yet, the problem continues to persist. Within the last month, three major cases of sexual harassment have come into the view of the American people. All of the cases involve restaurant workers.

At the beginning of November, a group of workers at Senor Frogs filed a class-action law suit against the CEO and upper-management for groping, propositioning, and demanding sex from lower level workers in the restaurant chain. Not even a week later, a single mother who worked for over ten years in a Waffle House filed a claim against the CEO of that company for demanding that she perform sexual acts with him in order to keep her job. Also, a major steakhouse in New York City just settled a claim for male-on-male sexual harassment between managers and restaurant workers. In fact, the Equal Employment Opportunity Council is seeing a trend of more cases of male-on-male sexual harassment.

While one could say that we are lucky in America to have a legal system and an infrastructure which allows people to bring these sorts of cases, clearly there’s a gap between what we’ve enacted as a priority and how that is often gets translated on the ground. It is beyond dispute that most folks in the United States believe that people deserve to work in a non-threatening work environment where what matters most is the quality of their efforts on the job. Maybe these more public cases of sexual harassment will raise red flags to management and to workers alike to be more aware of their surroundings and to make sure that their place of employment is a safe one.

However, these cases also raise a larger issue – namely how do we reconcile our view of “civil rights” with the world’s view of “human rights.” Right now, there seems to be a disconnect – one where we tend to feel that issues of discrimination (sexism, racism, etc?) that we deal with here in the U.S. are somehow different from the issues that other countries face. We talk about an American’s “civil rights” as if it were separate from the rights that are embodied in numerous human rights treaties – on issues like the right to self-determination and treatment that is free from discrimination. This is problematic. In essence, it diminishes the very real feeling of dis-empowerment that many Americans feel when they face this treatment – to mere statutory claims (one that can be more closely aligned to a speeding ticket than a fundamental human right). Instead, we need to elevate these issues to what they really are – human rights claims.

Relegating these challenges to the specifically American framework of civil rights also serves to isolate many U.S. advocates whose causes and issues could organically be linked to other global advocates who are fighting similar, if not identical issues. It seems clear that there is common ground between a restaurant worker being harassed in the United States and a female laborer being sexually exploited in the Middle East. Uniting these cause might bring about a more effective change.

As a person who writes about (and cares about) business and human rights issues, I often tend to feel like I’m wearing the white hat. I try and give a voice to issues that affect folks around the world and try to make sure that I think through the impact of my words. However, Christine Bader has written a pair of articles that has really challenged me to assess how my ideas translate to my daily life.

Christine, is a Nonresident Senior Fellow at the Kenan Institute for Ethics at Duke University. She also worked on John Ruggie’s team for several years as they developed, first the Protect, Respect and Remedy Framework and then the Guiding Principles. To say that Christine has an intimate view of how business impacts human rights issues is an understatement.

But that’s only half of the story – Christine is also a new mom. To twins. A new mom who, by Christine’s own admission “took a fair amount of time and research” to make a decision about the best rug for her kids’ room – one that balanced issues that she cared about – being environmentally sound, locally produced and not made with child labor. I will now confess – I have never spent much time thinking about my purchases. When I can, I buy local. When I can’t, I run to my neighborhood Kroger’s. I have concerns about Facebook’s internet privacy policies but, not enough to close my account and lose touch with my friends. And I can tell you unequivocally that, until I read Christine’s articles, it hadn’t even occurred to me that I could perform such extensive research on the things that I buy.

It’s painful to confess these things. It puts my values in a stark light against the backdrop of my reality. Oh, I can justify it a half dozen different ways – I don’t have time, I don’t have the energy, I do enough. But all that dwindles to nothing when I realize that a new mom of twins (who has a very productive career besides) is spending time that I never made to researching issues that I care about deeply.

December is turning into a busy month for people who specialize in business and human rights issues.

For those of you who reside in the United States, George Washington University is hosting a one day conference. The conference, entitled “Can Trade Policies and Agreements Advance internet Freedom?” explores the international playing field specifically within the context of the internet and the flow of information. The conference will be on December 6th. For more information please visit the conference website (at go.gwu.edu/tradeandinternet)


In Geneva, the United Nations is hosting its first annual business and human rights conference on December 4th and 5th. While registration for the conference has closed, I will be attending and hope to provide you with some updates and insights after the conference has closed For those of you who are attending, the website with all relevant practical information on the conference is here.

Also, if you are attending, please drop me a note in the comments! I am always interested in knowing the people who work in this field.

Tuesday, November 6th was the first major election cycle since the Supreme Court decided on Citizens United in 2010. In the decision, the majority ensured first amendment rights for corporations and unions when it said that the government could not restrict independent political expenditures. Moreover, under the court’s ruling, the amounts of money which corporations and unions contribute does not have to be disclosed. In June, the Supreme Court upheld their decision when it overturned a century old Montana law that limited corporate campaign spending. The case American Tradition Partnership Inc. v. Steve Bullock, attorney general of Montana, No. 11-1179 is particularly ironic given that the population in Montana overwhelmingly (as in 3 to 1) used their votes last Tuesday to call for an amendment to overturn the ruling. Montana, along with Colorado, became the first states to do so by voters, but they joined a list of nine other states calling for an amendment of this sort. These voters seem to represent the voice of most Americans as a whole. A September AP pollshowed that 82% of Americans are in favor of capping corporate spending on elections.

With the most expensive election in history just behind us, it seems that the American people are noticing a disparity in fairness in terms of corporate voice. When corporations are able to spend unlimited amounts of money to persuade voters, they are able to buy unprecedented commercial time, airwaves, billboards, and influential literature without disclosing the true financiers of the influential endeavors. Corporations have been recognized as “people” for nearly 200 years, but they are not afforded every single right of humans. For example, corporations have the capability to enforce contracts as people do, but they do not have the right to vote. Perhaps the American people are showing that they would like to take back the right of corporations to use their finances as unfettered speech. While Americans may understand that some things just aren’t fair, they are unwilling to accept this unregulated corporate financing of elections as one of those inherent injustices. This seems to be something that we, the people, might want to change with our own political action, well-funded or not. 

On the other hand, should we continue down this path and uphold the idea that corporations have the same rights as other persons then corporations may have to accept that they will have additional duties and responsibilities, similar to those of human beings. For instance, the Supreme Court last month also heard a case regarding whether the Alien Torts Statute (ATS) applies to corporations Kiobel v. Royal Dutch Petroleum. ATS is a centuries old statute that, after a seminal case in 1980 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) became a strategy of choice for human rights advocates to hold individuals liable for their role in torture and other extreme human rights abuses.

Although no one during oral arguments discussed the issue of corporations as being persons, the questions presented highlighted the issues succinctly:

“1. Whether the issue of corporate civil tort liability under the Alien Tort
Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all
courts prior to the decision below, or an issue of subject matter jurisdiction, as the
court of appeals held for the first time.

One of the purposes of this blog is to help people who are inetersted in this field find some resources that may be helpful to them. To that end, from time, I will be featuring a “lit review” that will spotlight past and current literature from the 1970s to the work of contemporary scholars like Larry Cata Backer, Faith Stevelman, and of course, John Ruggie. The hope is to develop a repository of influential articles in business and human rights that have helped define the debate on business and human rights.

Milton Friedman, published his piece over forty years ago in The New York Times Magazine. In this article, Friedman discusses how corporations and their agents should not concern themselves with having social consciences, but should try simply to increase their profitability. Friedman suggests that corporate executives have responsibilities to their employees, stockholders, and principals to maintain the highest financial intake possible while acting within the bounds of the law of social mores, but these executives should not perpetuate their own social agendas (or the popular social agenda of the day) with the corporations’ finances. According to Friedman, if corporate executives start pandering to the desires and whims of society (desires such as ” eliminating discrimination, avoiding pollution and whatever else may be the catchwords of the contemporary crop of reformers”), then they will be elevating socialist doctrines and corrupting the free market economy.

First of all, Friedman contends that corporate executives have a primary responsibility back to her (although, in the ‘70s it would probably have been “his”) employers or principals of the company and not to the overarching notion of the greater good of society. The general primary goal according to Friedman is “to make as much money as possible while conforming to the basic rules of the society, both those embodied in law and those embodied in ethical custom.” He claims that if the executive pursues to mollify social ills with company funds, the executive will be performing something like a tax collecting duty and then a tax distribution all with the proper representation from the people from whom the money is being generated. In essence, Friedman is saying that social responsibility in a business setting sets up a scheme of “taxation without representation.” But, Friedman does not address the idea that people in that industry might choose to maintain aspects that increase the social conscience of the business, nor does he address the idea that some employees or stockholders chose that particular business for its social concerns.

Second, Friedman has little patience for those corporations who seem to practice a form of social responsibility solely for the purpose of covering their tracks or for making improvements in the community mainly for the business’s own self-interest. He makes the example of providing amenities to a community such as parks or recreational facilities or in order to attract desirable employees. Friedman says that while these expenditures are good ones in the long run, it would be better for business if the corporations were honest about them. In the climate in the day he wrote the article and continuing into today, there is a current of the population that thinks of big business as “soulless corporations” and people can have aversions to maximization of profits above all else. Friedman suggests that the goodwill that is generated by those self-interested expenditures would be more aptly placed in business if they were honest about their nature and that might also help the overall image of the business world as a whole.

Lastly, Friedman discusses the “cloak of social responsibility” and how it has done harm to the foundations of free society. According to Friedman, pioneers in business have a “schizophrenic” nature. (This idea of businesses as “schizophrenic” is particularly insightful given Prof. Joel Bakan’s deduction of corporations as psychopathic in the 2000s). While the leaders can be very “far-sighted and clear-headed” about the trajectory of the internal workings of their businesses, they can be “near-sighted and muddle-headed” when it comes to the trajectory of business in general. Friedman says that when these business leaders make decisions based on the modern trend of what is important in the world of social responsibility, they are doing so simply to gain “kudos in the short run.” Friedman fears that these kinds of decisions will lead to more external or government controls or regulations on business, and that would be the death of business as it was once known.