Can the UAE lead the way in reforming policy frameworks on gender discrimination?

Using the UAE as a case study, this is the second of two articles about how recent global developments affecting gender dynamics and discrimination against women in tech are mirrored – or not – in the MENA region. It focuses on the legal and policy frameworks governing such issues.

In 2012, Ellen Pao’s sexual discrimination lawsuit against Kleiner Perkins Caufield & Byers (KPCB)  should have prompted Silicon Valley to tackle its dysfunctional gender dynamics. It did not. But the lawsuit broke the wall of silence on issues of gender discrimination and harassment endured by the Valley’s tech women, 200 of whom subsequently partook in Trae Vassallo’s and Michele Madansky’s influential Elephant in the Valley survey.

Madansky, previously Yahoo’s VP of customer insights and currently the founder of her own consultancy firm, told Wamda that Vassallo was inspired to “quantify the problem” of gender discrimination in the Valley by her own testimony at the Pao trial – where she was subpoenaed to speak about her experience with harassment at KPCB – and the fact that her statements were echoed by other Valley women. “She had never spoken about this prior to the trial because she had signed a non-disparagement clause when leaving KPCB,” said Madansky of Vassallo’s revelations.

Code of silence

It would be naïve to assume that Valley women had not spoken out prior to Pao’s trial. They had, but nobody seemed concerned with what they said. 60 percent of the women surveyed by Madansky and Vassallo who had reported harassment were dissatisfied with the course of action taken in response. Among those who did not report it, 39 percent believed it would negatively affect their career, and 29 percent had signed non-disparagement agreements.

In the Valley, a mix of Realpolitik, external reputation management, and legal measures for self-protection fostered a toxic culture that prizes financial settlements and silence when it comes to allegations of sexual discrimination or harassment. In an article citing examples of this culture, tech reporter Marisa Kendall draws attention to the use of non-disclosure agreements beyond their intended purpose, the tying of severance pay to such agreements, and private arbitration to stop harassment cases from going to court.

In a poll conducted by Al Aan TV in partnership with YouGov in 2011, the results of which were not all released to the public but were shared with Wamda, 46 percent of women in Saudi Arabia and 34 percent in the UAE say that they would report harassment in the workplace, depending on the situation, and over 53 percent of those who would report it in both countries say they would report it to the authorities before all else.

Fear factor

Shiraz Sethi, a UAE-based senior employment lawyer, is currently working on proposed legislation on employment within the Dubai International Finance Centre, for which he serves as an employment dispute specialist. DIFC’s jurisdiction (which covers a limited economic zone in Dubai) and that of the wider UAE differ in many arenas. In much of the UAE, Sethi pointed out to Wamda, the authorities have bet that fear of criminal prosecution will function as a deterrent for those who might engage in sexual harassment.

Sethi has defended both accused and accusers in harassment and discrimination cases. He explained that, under the UAE’s penal code, sexual harassment of a woman by a man could result in criminal prosecution. If the accused is convicted, “the consequences…are quite serious,” he said, adding that they range from a fine to imprisonment.

Yet, the authorities rarely prosecute less severe forms of misconduct, such as gender discrimination in pay and other areas. Many companies seem to have taken this lack of involvement on the part of officialdom as a license to ignore discrimination that does not quite rise to the level of sexual harassment. Others, concerned only with their reputation, have made financial settlements (sometimes with attendant non-disclosure or non-disparagement agreements) the catch-all means of resolving such matters.

As a result, an employee who is dissatisfied with her company’s handling of her discrimination claim will find that UAE labor law may not have been designed to deal with it. Indeed, the law doesn’t “expressly state what the discriminatory practices are and what the liabilities on the accused could potentially be,” noted Sethi. When it comes to discrimination, provisions under the UAE labor law relate to hate crimes and religious prejudice. “As an employment lawyer,” said Sethi, “I don’t see it as a mechanism by which to stop discrimination.”

Because of this situation, few women have gone to the courts in the UAE with claims of discrimination pertaining to gender pay or promotion.

On the cusp of a new era?

According to Sethi, the new DIFC employment bill he is working on includes provisions that allow for legal proceedings against those who engage in “acts of discriminatory behavior – whether it is on gender or disability.” If the proposed legislation is passed into law, he predicts that employees will more readily come forward with claims of discrimination.

In tandem with DIFC, the UAE at large is making progress on such matters. In February 2017, its Gender Balance Council, established in 2015, issued a guide for behavior in ‘gender-sensitive’ workplaces across the country. In partnership with the Organisation for Economic Co-operation and Development (OECD), the guide – among other pointers – outlines benchmarks for gender balance within UAE organizations’ decision-making bodies and policy frameworks. This follows on the heels of the launch of the Gender Balance Program in 2016, which was designed to evaluate legislation and national policies in support of women.

“From what I’ve seen, the UAE is by far one of the most advanced ecosystems for gender equality and representation between men and women. That is something uniquely Emirati that the rest of the region and a lot of the rest of the world has yet to catch up [to],” said Elissa Freiha, founder of Womena.

Nevertheless, in the tech and wider corporate space, whether in the UAE or elsewhere, greater personal propriety on the part of men in positions of power as well as policy reforms on the part of companies are required to actively address the deeply rooted and multi-faceted phenomenon of gender discrimination.

Feature image via Stockvault.