Gender-Responsive Human Rights Due Diligence: Overlooked in the Law but a Chance to Get It Right in Practice

Long recognised by expert working groups and international organisations, yet long overlooked by most BHR legislative initiatives, the disproportionate impact of corporate activities on women and other marginalised groups requires companies to take a gendered approach to Human Rights Due Diligence efforts for these to be truly effective. Taking the cue from a recent report published by ActionAid on the CS3D’s failure to address this need and require gender focused safeguards in its final text, this blog post argues that the upcoming implementation of the EU CS3D nevertheless presents a unique chance for companies to get the process right. 

Introduction 

Corporate activities affect stakeholders differently. Business operations can disproportionately impact women (and other marginalised groups) and significantly contribute to the violation of their human rights. Some of the more blatant examples include (but are not limited to) sexual harassment in the workplace, pervasive discrimination, pay inequality and retaliation for human rights defense work. Moreover, pre-existing inequalities themselves exacerbate a corporation’s potential adverse impacts on women’s rights. This means that companies seeking to have an effective human rights compliance programme cannot ignore the gender-specific dimension of the impacts of their activities, nor can they take a one-size-fits-all approach to human rights due diligence. They must adopt a gender-lens in their due diligence efforts. 

This reality has long been recognised, and was notably reiterated in 2019 when the UN Working Group on Business & Human Rights published a Report on gender lens to the UN Guiding Principles on Business & Human Rights. Nevertheless, most legislative initiatives in the Business & Human Rights (BHR) space – including the most recently adopted EU Corporate Sustainability Due Diligence Directive (CS3D) - fail to require companies to take a gender-specific approach to human rights and environmental due diligence (HRDD).  

An HRDD approach that is not gender sensitive will most certainly fall short of identifying and responding appropriately to gender-based risks, by failing to: 

• capture some of the most pervasive violations occurring within a company’s value chain. Some sectors (such as the garment industry, which was a sector front of mind with the development of the CS3D) have a predominantly female workforce that face poor working conditions and exploitation, often falling outside the formal workplace and the protections that come therewith; 

• tackle cultural and practical barriers to women’s ability to speak out against violations, participate in stakeholder consultations and access remedies; 

• prevent heightened risks of retaliation and stigmatisation that women and their families face when they do make their voices heard. 

The ActionAid critique to the EU CS3D 

In a report published in October this year, ActionAid reflects on the various ways in which the provisions espoused in the CS3D fail to adequately address this issue, including among others: 

• Limited personal scope: In applying only to the largest companies, SMEs operating in sectors where women are overrepresented (such as the garment and footwear sector) escape the reach of the CS3D, to the detriment of huge portions of potentially impacted rights holders. The CS3D’s limited application to downstream activities also leads to the exclusion of the financial sector from downstream due diligence on their investments, effectively excluding human rights abuses financed by harmful projects (such as large-scale fossil fuel and industrial projects) that harm women and groups who are more dependent on threatened natural resources, particularly in the Global South. 

• Limited material scope: The CS3D’s material scope is based on a closed list of human rights conventions and prohibitions, contrary to international BHR standards that apply to all internationally recognised human rights and environmental impacts. This list notably does not include the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and International Labour Organization Convention (190) on Violence and Harassment. 

• Limited gender lens: A gender approach to due diligence is only mentioned in the recitals of the CS3D (Recital 33), meaning companies are encouraged but not required to take this into account throughout the due diligence process. 

Recommendations: Gender mainstreaming within the HRDD process 

ActionAid recommends that to bridge this gap, a gender perspective be embedded by companies into every stage of their HRDD process, including among others through the following measures: 

• Gender-responsive Risk Identification and Assessment: This includes collecting disaggregated data by characteristics such as sex, gender, age, race, ethnicity, class, migration status and disability (under an intersectional approach as explained below), whilst also ensuring corporate practices address women’s unique challenges in sectors like agriculture and manufacturing. Only then can gender-specific trends be identified and adverse gendered impacts investigated. 

• Intersectional Approach: A gender-responsive HRDD process should also be intersectional as gender inequality frequently intersects with other forms of oppression based among others on sexual orientation, ethnicity, disability, class, etc. An intersectional / non-binary lens will ensure companies address compounded risks faced by marginalised groups and allow for tailored safeguards that better reflect real-world struggles.  

• Training and Awareness-Raising Tools: These are key to ensure all actors involved in the HRDD exercise have a full grasp of the gendered impacts of corporate activities. Gender experts with the necessary knowledge and sensitivity around these issues should also be engaged throughout the process to avoid gendered perspectives remaining only at surface level. 

• Grievance Mechanisms and Strong Whistleblowing Safeguards: Fear of retaliation is a pervasive barrier to women coming forward with complaints within and outside the confines of the workplace. Women human rights defenders often face gender-specific threats and violence as a way to stifle their activism. Companies need to make specific efforts to ensure grievances can be expressed safely, anonymously, confidentially. This will also contribute to the culture of trust necessary to encourage reporting and ensure issues come to light in a timely manner to the benefit of business operations. 

• Meaningful Stakeholder Engagement: Women and other marginalised groups are far too frequently excluded from consultation and decision-making processes. This compounds the invisibility of women suffering from such violations. Companies should ensure meaningful consultation with women and feminist organisations in all steps of the HRDD process, who should be given the safety and space to be active contributors in the creation of the safeguards designed to respect and enforce their rights in the workplace and in their communities. 

Further elements to consider when performing gender-based due diligence 

When adopting a gender-based approach to due diligence, companies would also be wise to keep these considerations front of mind: 

• Detection as a key to prevention: Gender-related issues are systematically under-detected and under-reported, particularly in the case of gender-based violence, whether due to stigma, shame, cultural norms or fear of retaliation. Companies should put in place detection tools – including in coordination with OHS measures as per the ILO C190 - that are gender-informed and risk-based, focusing resources on areas of the value chain and types of work environments that are prone to gender discrimination and gender-based violence. 

• Gender-sensitive Remedy Processes: While the CS3D strengthens access to justice for victims of corporate abuse, companies should also contribute to facilitating the remedy of women’s grievances in processes and forms that adequately respond to their needs.  

• A value-centred corporate culture: Companies should recognise their impact on social gendered norms and work from the ground up, both within their operations and across their business relationships, to reset the tone around rebalancing the gender scales and preventing workplace discrimination and violence. 

Conclusion 

While the CS3D does not clearly set out mandatory provisions on the need to incorporate a gender-lens into the HRDD process, failing to do so can have serious consequences on the identification of gender-specific human rights risks, opening companies up to potential legal, financial and reputational repercussions. Moreover, ignoring this need would be a missed opportunity for companies – large and small – seeking to make a real impact on the societies within which they operate. Only through innovative and transformative approaches can robust and effective HRDD processes withstand an ever-changing global business environment and achieve their ultimate purpose of promoting a global economy that is fair and works for people.