Introduction

One business makes its corporate emblem rainbow-colored to combat religiously-based stereotypes about LGBT + peopleFootnote 1 (Bereziuk 2023). The business next door puts out a job vacancy with the requirement for candidates not to be representative of the LGBT + community with the aim to defend religious culture (Brovinska 2023). Another business down the street refuses to hire a transgender person and prohibits art exhibitions about Muslim feminism due to the religious views of its management. These are all examples of tensions that arise between freedom of religion or belief (FoRB) and freedom from discrimination based on sexual orientation and gender identity (SOGI)Footnote 2 or restrictions on SOGI expressions with the appeal to FoRB protection arguments within businesses’ activities in Ukraine today. In this context, should businesses be neutral or actively involved in providing respect for SOGI and FoRB at the corporate and community levels?

FoRB and freedom from discrimination based on SOGI often seem to be rights that exist in constant conflict (Shevtsova 2020; NeJaime 2009). The UN Special Rapporteur on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz, says that ‘religion and the human rights of LGBT persons are often placed in antagonistic positions in social and political discourse, feeding the contention that there is an inherent conflict between FoRB and the human rights of LGBT individuals’ (Madrigal-Borloz 2023; Gas-Aixendri 2022). Presumed conflicts between FoRB and SOGI are mostly analysed in the context of the vertical dimension of human rights (obligations of the state, role of courts). However, these conflicts go far beyond the traditional spheres of society (same-sex marriages, equal access to medical treatment, etc.) and exist in the horizontal dimension. In particular, they arise in the field of business, which is a much less researched issue area, especially in Eastern Europe and the post-Soviet region, to which Ukraine belongs (Shevtsova 2023). The issue of protection from discrimination based on SOGI also extends to discrimination in the workplace; abuses against LGBT + customers, suppliers, or contractors; and debates about SOGI protection at the community level (UNDP 2017). ‘Corporate level’ in this article means the decision-making processes within various, state, non-state, international, and national businesses. ‘Community level’ includes numerous social processes, contradictions, and discussions among various political, religious, cultural, and professional groups or individuals in a given society.

The corporate responsibility to respect human rights, as defined in the United Nations Guiding Principles on Business and Human Rights (UNGPs), is based on social expectations.Footnote 3 Social expectations that companies respect human rights entail that they respect all human rights irrespective of possible clashes in society because of ideological, religious, and legal factors. At the same time, meeting those social expectations in the business and human rights sphere may create contradictions in those cases where social expectations themselves are contradictory and society perceives certain human rights as conflicting. This dimension of the corporate responsibility to respect human rights is overlooked by the business and human rights literature, and, more broadly, by human rights studies.

Within a human rights framework FoRB and freedom from discrimination based on SOGI are non-clashing rights (Ghanea 2022). The human rights framework recognizes that all human rights are equal and deserve the same level of protection (Klein 2008; Ghanea, Stephens, Walden 2007). Nevertheless, conflicts between FoRB and SOGI arise at the community level. Human rights and social expectations and attitudes towards the concepts of FoRB and SOGI can create conflicts at the implementation level, within which business actors need to ‘navigate’ (Gaur, Settles, Väätänen 2023, 1410). This impacts strategic responses businesses use when facing international and national social pressures (Li et al. 2021). Other authors describe three models of actions businesses can use to ensure LGBT + inclusion such as ‘when in Rome model’ – when business actors ‘abandon their non-discrimination policies in inhospitable political and legal environments’; ‘Embassy model’ – when business actors ‘create a welcoming workplace in a hostile national environment without challenging that environment’; Advocate model – when business actors ‘actively try to change anti-LGBTI laws and social attitudes wherever they operate’ (Lyons, Christiancy 2022, 144).

However, such theoretical inquiries should be further extended to the study of national and religious contexts which formulate business respect for SOGI and FoRB. We modified such an approach in the case of Ukraine which has a specific national, legislative, religious, and cultural environment, where business actors have to operate. Based on the empirical research, we identified three strategies businesses use when operating in Ukraine: strategy of neutrality - a tendency to privatize both FoRB and SOGI as private life components; strategy of ignoring – the omission of FoRB and SOGI in corporate policy commitments because employees do not request respect; strategy of an active engagement – substantive efforts to ‘identify, prevent, mitigate and account’ business impacts on issues related to providing respect for SOGI and FoRB.

The article is organized as follows. Section 1 discusses the methods used to collect the empirical data. Section 2 looks at the legal, ideological, and religious inconsistencies in Ukraine that businesses have to consider when ensuring respect for SOGI and FoRB. Section 3 provides an overview of international frameworks for business responsibility to respect SOGI and FoRB within their activities. Section 4 analyses corporate policy commitments to respect SOGI and FoRB of the 100 largest businesses operating in Ukraine. Section 5, based on interview results, identifies three strategies businesses in Ukraine use to address issues in providing respect to SOGI and FoRB: neutrality, ignoring, and active engagement. Section 6 discusses the results of corporate policy commitments assessment and interviews. Finally, the article concludes that businesses that use neutrality and ignoring strategies depend more on national conflicting social expectations regarding FoRB and SOGI, whereas those businesses using the active engagement strategy are more inclined toward international human rights expectations in the business and human rights sphere.

Methodology

The article combines desk-based researchFootnote 4 on businesses’ corporate policy commitments (e.g., human rights policies of companies, non-human rights policies, reports, etc.) and in-depth interviews with businesses. Empirical data was analysed to explore whether and in what ways national and international businesses in Ukraine address the need to respect FoRB and SOGI at the corporate and community levels. The companies examined are those 100 Ukrainian business entities with the largest revenue in 2022 according to the Ukrainian government database (State Statistics Service of Ukraine 2023). Empirical findings have two inherent limitations.

First, the results of the empirical data collection are based on businesses that have their corporate policy commitments publicly available or provided such data during the interviews. Locating the human rights policies of all 100 businesses was challenging. A considerable number of these businesses do not have any information available on their websites. Forty-four out of 100 of the businesses do not have publicly available human rights policies.

The paper analyses different types of corporate policy commitments, which are important for research. There are various corporate policy commitments to respect human rights: human rights policies, non-human rights policies (Codes of Conduct) with some human rights provisions, reports, and general sections on the websites expressing human rights commitments, public statements, adoption of corporate symbols that include LGBT + colours, and advocacy events in support of SOGI. Additionally, there are reports (ESG and SDGs reports) that some businesses publish because of legal requirements. All of these commitments, irrespective of their format may address the gender, sexual and religious identity of the individual. Therefore, for the purpose of the research presented in this article, corporate policy commitments as a collective concept include any of the abovementioned types of commitments that deal with providing respect for FoRB and SOGI.

Second, a low level of responding to interview inquiries resulted in a relatively small sample pool: only 12 businesses responded positively to participate in interviews out of 50 who had responded to inquiries. A ‘snowball method’ was used to find businesses willing to participate in the interviews after there was a low level of response to the initial interview inquiries. Interviews were conducted face-to-face in Ukrainian language online using Zoom, Teams and Google Meet platforms between May and July 2023. The sample was 12 business representatives (one from each company) including human resources managers, chief executives, and compliance officers involved in the process of policymaking. The duration of the interviews was from 40 to 70 min. In addition, in preparation for the 12 interviews, the first co-author interviewed 5 experts in the business and human rights field in Ukraine.

The results from the 12 interviews are presented in a generalized manner, and the names of policymakers and companies remain anonymous. All of the participants agreed to the ethical standards of the research and voluntarily participated. Manual coding was used to analyse the interview content related to FoRB and SOGI in businesses’ activities. The data gathered from these interviews highlight several strategies national and international businesses use in Ukraine to provide respect for FoRB and SOGI: neutrality, ignorance and active engagement strategies.

Social Expectations under the Pressure of Ideological, Religious, and Legal Factors

Freedom of Religion and Non-discrimination Based on Gender Identity and Sexual Orientation in Ukrainian Society

The state engagement with respecting and ensuring respect for FoRB and SOGI is further affected by religious actors’ attitudes towards the legal protection of SOGI and its alleged conflicts with FoRB by religious organizations, leaders of religious groups, and inter-faith institutions.Footnote 5 Since the Russian war against Ukraine started in 2014, opposition to FoRB and freedom from discrimination based on SOGI rights has decreased due to a reduction of Russian religious homophobic and anti-gender rhetoric influence (Shevtsova 2020). However, the idea of SOGI being a threat to traditional and religious values is still one that is actively supported by some Ukrainian political parties and nationalistic movements (UCCRO 2023; Pravyi sektor 2023). For example, there are numerous cases of right-wing organisations opposing LGBT + events in Ukraine and attacking openly LGBT + persons (Kilbride 2023; Eu-Ukraine Civil Society Platform 2016).

Religious actors refer to such reasons against the introduction of SOGI-sensitive legislation as the non-legitimate and threatening influence of international organizations and countries such as the Russian Federation, family values, and demography crisis (UCCRO 2023a). The interim report of the UN Special Rapporteur on SOGI from June 2023 also criticizes Ukrainian religious actors who support restricting SOGI and LGBT + rights with the aim of safeguarding the ‘traditional family’ (Madrigal-Borloz 2023, para. 24). Religious actors usually do not discuss what constitutes discrimination but rather attempt to build an image of nationwide rejection of the protected category of SOGI (The Independent Advisory Group 2017, 17). This opposition in turn marginalizes SOGI at the community level.

One of the participants the first co-author interviewed, who worked in a business’s compliance office stated that, among other reasons, religious views play a role in creating bias when sexual orientation besides heterosexuality and gender identity besides cisgender identity are viewed as unacceptable identities in Ukrainian society:

SOGI is radicalized, because two groups at once - both religious and right-wing radicals are very exorbitantly opposed to the topic of SOGI… For example, I know that a number of nationalist groups did not love the topic of gender equality, women’s feminism, but at this moment it was only about women, the religious actors somehow were silent, but then these two very powerful groups are turning severe opposition on in this topic (SOGI). —Interview, Director of Sustainable Development, June 2023.

Such a discourse shifts freedom from discrimination based on SOGI protection from an internationally recognised human right to a politically contested topic with an ambiguous legal meaning, making this right one of the most vulnerable. The social conflicts between FoRB and SOGI that exist at ideological and religious levels in the community significantly affect national legislation providing protection to FoRB and SOGI.

Ukrainian National Legislation on Freedom of Religion and Non-discrimination Based on Gender Identity and Sexual Orientation

One of the most significant gaps in Ukrainian legislation on anti-discrimination laws for SOGI protection is that the legislation lacks a coherent definition of SOGI. Various Ukrainian laws have different definitions of what characteristics are actually protected from discrimination (Eu-Ukraine Civil Society Platform 2016).Footnote 6 This lack of clarity has been recognized by the state in the National Human Rights Strategy (Decree of the President of Ukraine 2021, 16).

Whether to include gender-sensitive terminology such as ‘gender identity’, ‘gender’, and ‘sexual orientation’ in national legislation instead of, or alongside the traditional term ‘sex’ is an ongoing debate among lawmakers, religious actors, and human rights protection organizations (Martsenyuk 2016; Ketelaars 2019). At present, sexual orientation is generally assumed by lawmakers to be included under the definition of ‘other characteristics’. The Law of Ukraine ‘On the Principles of Preventing and Combating Discrimination in Ukraine’ does not include sexual orientation as a protected characteristic (The Law of Ukraine 2013, art. 1). The Constitution of Ukraine also does not include sexual orientation as ground for discrimination (The Constitution of Ukraine 1996, art. 24).Footnote 7 The inclusion of SOGI as a protected characteristic in the Labor Code of Ukraine was done as a requirement of the EU Association agreement (The Labor Code of Ukraine 1971, art. 2 − 1; The Independent Advisory Group 2017).

At the same time, all of the abovementioned laws include FoRB or religious views as a protected characteristic. Furthermore, specific regulations on FoRB, such as the Law of Ukraine ‘On Freedom of Conscience and Religious Organizations in Ukraine’, do not address discrimination issues based on sex, gender identity or sexual orientation but rather in more general terms. Particularly, this law requires that ‘religious organisation shall not interfere … or preach any form of hostility or intolerance towards non-believers or believers of other faiths’ (The Law of Ukraine 1991, art. 5). A careful analysis of these provisions arguably provides the right not to be discriminated against by religious organizations on the grounds of SOGI.

Ukrainian law is unclear on issues of SOGI, which naturally leads to businesses’ confusion when they have to make their own interpretations, especially when businesses develop corporate policy commitments. As a result, businesses may include FoRB but not SOGI in their corporate policy commitments because the Constitution of Ukraine and other laws protect FoRB but do not explicitly address discrimination due to SOGI. This absence of clarity creates confusion for businesses as to whether they need to follow vague national legal regulations heavily influenced by social conflicts or to follow international frameworks. International recommendations and the business and human rights framework discover crucial role of business actors’ engagement in ensuring respect for FoRB and SOGI in situations of conflicting social expectations.

International Legal Frameworks to Respect Freedom of Religion and Non-discrimination Based on Gender Identity and Sexual Orientation at the Corporate Level

International Recommendations for how Businesses Respect Freedom of Religion and Non-discrimination Based on Gender Identity and Sexual Orientation

FoRB and SOGI are protected differently in international law. FoRB is a well-established human right enshrined in customary and treaty law.Footnote 8 In contrast, SOGI has generally been recognized as an element of different human rights (right to private life, non-discrimination, and self-expression) (MacArthur 2015). Freedom from discrimination based on SOGI does not appear as a separate right in any human rights treaties with the exception of the Charter of Fundamental Rights of the European Union which prohibits discrimination based on sexual orientation but still does not address discrimination based on gender identity (Thomas, Weber 2019; EU Charter of Fundamental Rights 2012). However, several soft law frameworks include principles for SOGI protection within business activities.

For instance, CoE Recommendation CM/Rec(2010)5 ‘On Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity in Terms of Labor Relations’ calls states to adopt appropriate measures combating discrimination based on SOGI both in public and private employment and occupation. The Recommendation argues that ‘neither cultural, traditional nor religious values, nor the rules of a ‘dominant culture’ can be invoked to justify hate speech or any other form of discrimination, including on grounds of sexual orientation or gender identity’ (CoE 2010). The attention international legal documents pay to resolving clashes between SOGI and FoRB illustrates the importance of this topic in national and international discourses on human rights (CoE 2013; CoE 2015; CoE 2011; Grinspan et al. 2017).

Another relevant document that provides important guidance on how businesses can extend their respect to SOGI from the corporate to the community level is the UNDP Standards of Conduct for Business ‘Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People’ (the UNDP Standards of Conduct) (UNDP 2017). The UNDP Standards of Conduct are in line with the UNGPs, but also recommend that businesses should not just respect the rights of and not discriminate against, their LGBT + workers, suppliers, and customers. Rather, the Standards argue that businesses should actually encourage their business partners to do the same and should also stand up for LGBT + rights in communities where they operate. Support may include ‘public advocacy, collective action, social dialogue, financial, and in-kind support for organizations advancing LGBTI rights’ (UNDP 2017). The Standards also claim that companies should do everything legally possible to ‘question, challenge, delay, and resist implementing government orders that might lead to human rights violations’ (UNDP 2017).

Although the abovementioned documents are soft law, they can be used in court reasoning. For example, in April 2023, the Inter-American Court of Human Rights in the decision Olivera Fuentes v. Peru established that it is unacceptable for state and non-state actors to consider belonging to the LGBT + community as a pathology (Zelada 2023). The Court emphasized in para. 103–104 that private actors, in accordance with the UNDP Standards of Conduct are obliged not only to passively not interfere in the violation of rights, but also to provide access to their services LGBT + representatives and ‘to promote positive changes for the LGBTIQ + community’ (Inter-American Court of Human Rights 2023; Zelada 2023).

The UN Working Group on business and human rights’ report on The Gender Dimensions of the UNGPs provides businesses with detailed explanations on how to ‘identify, prevent, mitigate and account for how they address their impacts’ (UNHRC 2019; UNHRC 2011).Footnote 9 The guidance includes recommendations that businesses should use tools such as benchmarking, risk assessment, due diligence, and inner conflict resolution that can be applied to resolve clashes that arise between FoRB and SOGI at the corporate level. Therefore, the role of corporate actors in providing respect for FoRB and SOGI should be active, as explained in the next sub-section.

The Role of Business in Providing Respect for Freedom of Religion and Non-discrimination Based on Gender Identity and Sexual Orientation

Existing guidance in the field of SOGI and FoRB protection explains on a more operational level how and to what extent businesses should be involved in addressing conflicting social expectations regarding FoRB and SOGI protection. The UNDP Standards of Conduct claim that the duty of businesses goes beyond avoiding infringement on human rights of freedom from discrimination based on SOGI and FoRB (Lyons, Christiancy 2022, 135). The Standards call for businesses to actively participate in social debates about LGBT + protection through advocacy, social dialogue, and other activities, such as resisting governmental infringements on SOGI.

Specifically, in a debate on the extent to which businesses should be involved (Ramasastry 2015), the UN Interim Report of the Special Rapporteur on FoRB at the workplace (2014) claims that

responsibility goes far beyond ensuring non-discrimination in employment within State institutions; they (state institutions) must also combat discrimination within the larger society, including as regards employment in the private sector. Other stakeholders — companies, trade unions, religious communities, civil society organizations — are also encouraged to use their potential to contribute to a climate of tolerance and to an appreciation of the diversity of religion or belief in the workplace (Bielefeldt 2014).

This UN Interim report claims that businesses are not only private profit entities, but they should also be active social actors as their activities influence communities, ‘the larger society’ Bielefeldt 2014) and even countries as a whole (Moon, Crane, Matten 2005; Crane et al. 2019; Brühl, Hofferberth 2013). Such encouragement to participate in combating discrimination within society recognizes that businesses are not a neutral actor in society (Hulievska, Adashys 2021; Wettstein 2010). According to the official commentary on Principle 16 of the UNGPs, businesses are expected by society to make public commitments to respect human rights (Buhmann 2018). The commentary to Principle 23 states:

Where the domestic context renders it impossible to meet this responsibility fully, business enterprises are expected to respect the principles of internationally recognized human rights to the greatest extent possible in the circumstances, and to be able to demonstrate their efforts in this regard (UNHRC 2011).

The need to consult international principles on human rights protection when the state protection is not effective encourages businesses to not be neutral on important human rights issues in countries where they operate, especially in those countries where insufficient national protection is provided to certain human rights (OECD 2023, 25; Bernaz 2017; Dyllick, Muff 2016; Ruggie 2007). Finally, not only is it critical for businesses to become involved, but businesses who choose to do so can actually make a contribution to resolving conflicting social expectations regarding FoRB and SOGI at the corporate and community levels as evidenced by the following sections.

Taking into account all of the above legal, ideological and religious conflicting social expectations, the next section presents the results of the empirical research on which frameworks international and national businesses operating in Ukraine use to provide respect for FoRB and SOGI in their corporate policy commitments.

Corporate Policy Commitments to Respect Freedom of Religion and Non-discrimination Based on Gender Identity and Sexual Orientation

Assessment of the 100 Biggest Businesses in Ukraine

The search findings showed that 44 out of the 100 largest businesses in Ukraine (with largest defined as receiving the highest annual revenue in 2022) do not have any public corporate policy commitments to respect human rights. The other 56 businesses have corporate policy commitments to respect human rights publicly available on their websites. Out of these 56 businesses with publicly available policy commitments, 19 are international businesses with branches operating in Ukraine, 16 are national businesses (both national and private and national state-owned businesses), and 21 businesses are branches of the larger businesses from the list (DTEK, Metinvest, Ferrexpo etc.).

The data further show that out of the 56 companies that have public corporate policy commitments, only five have specific policies. By specific policies, we mean policies on anti-discrimination, gender equality, LGBT+, FoRB, separate programs to support LGBT + workers such as employee resource groups, equal opportunity policy and board diversity policies. In other words, only 5% of businesses out of the 100 biggest businesses in Ukraine have public corporate policy commitments that address specific anti-discrimination issues, and all 5 are international businesses. Hence, we can identify the first problem with business engagement with respect to human rights in Ukraine: half of the biggest 100 businesses in Ukraine do not have corporate policy commitments at all, and only a few of them have separate policy commitments that specifically address rights of LGBT+, SOGI or gender equality.

Furthermore, the first co-author coded the existing policy commitments to see how frequently those commitments include FoRB and SOGI terminology. Eighteen businesses use the term ‘sexual orientation’, 9 businesses use the term ‘gender identity’, 23 businesses use the terms ‘religion’, ‘belief’, ‘religious freedom’, or ‘freedom of religion and belief’, and 12 businesses only included less specific terms such as ‘diversity’, ‘equity’, and ‘inclusion’.

The data demonstrate that even businesses that have public corporate policy commitments to respect human rights do not always address FoRB and SOGI. The lack of corporate policy commitments referring to FoRB and especially SOGI reflects the inconsistencies in national legislation that usually omits SOGI protection. The next sub-section provides examples of how businesses that have public corporate policy commitments use international and national legal frameworks.

National and International Frameworks in Corporate Policy Commitments

There is a noticeable difference between national and international businesses when it comes to the legal frameworks businesses use to articulate their respect for human rights. While international businesses actively use international legal frameworks, Ukrainian businesses tend to refer only to imperative national legislation whose breaches may entail administrative, civil, or criminal liability. For example, international businesses use frameworks such as the UN Global Compact and the UNGPs (used by Viterra Ukraine, Samsung Electronics Ukraine, etc.) (Horbachevska 2024). In contrast, Ukrainian businesses refer to obeying ‘labor legislation’ such as imperative norms on working conditions or imperative norms on quotas for people with disabilities under the Law of Ukraine ‘On the Fundamentals of Social Security of the Disabled in Ukraine’ (art. 19), or legislation prohibiting sexual harassment (used by Naftogaz, Energoatom, Ukrenergo, etc.) (Horbachevska 2024).

In addition, national businesses usually refer to terminology as understood in national legislation. For instance, the term ‘inclusion’ in corporate policy commitments by national businesses refers only to people with disabilities (StarlightMedia Group Code of Ethics 2022) and is not understood as a general concept of relevance to everyone. One reason for this might be that Ukrainian legislation requires employers to include a certain percentage of people with disabilities in their workplaces (The Law of Ukraine 1991a) as opposed to adopting different inclusivity strategies, as international legal frameworks propose.

Nevertheless, we note some attempts by national businesses to adopt a broader vision, which is not just state law-oriented. For example, during one of the interviews, a compliance officer of one of the largest state-owned companies in Ukraine stated that they changed their corporate emblem to the rainbow colors (the LGBT + symbol) because

we are a state-owned company, and we truly want to change and break these stereotypes that these companies are archaic, that they are not modern, that they do not respect modern trends, that they exist in a parallel world… it is not just a symbol. — Interview, Compliance officer, June 2023.

Changing the corporate emblem to the rainbow colors was adopted by other Ukrainian businesses such as Comfy, Ukrposhta, Kyivstar, Vodafone, Lifecell, and Bimba Publisher (Bereziuk 2023). However, such practices remain rare within other businesses’ corporate policy commitments.

In contrast, businesses that referred to international soft law and were aware of international human rights expectations state that ignoring human rights issues is not effective for the business because individuals may feel excluded, which can lead to an overall low corporate respect to human rights. For example, JT International Company Ukraine states in its policy:

If you don’t know that there are people like you in your organization, it can be hard to feel that you belong there… As part of our LGBTIQ + Inclusion pillar, we develop strategies, professional development opportunities, and LGBTIQ + inclusive policies to create workplaces that are inclusive of all sexual orientations, gender identities, and gender expressions. — Horbachevska 2024.

The Ukrainian business ‘Interpipe Nikotube’ with offices in other countries states that ‘we seek to provide a fair reflection of the diversity of Ukrainian society among our staff, including its cultural and ethnic diversity, at all levels of qualification and hierarchy’ (Horbachevska 2024). Thus, when using international tools businesses formulate some contextual conditions that are important to take into account when creating human rights corporate policy commitments.

Such differences in whether businesses align with international or merely national expectations also affect the strategies that national and international businesses use to respect FoRB and SOGI in their activities. Businesses that focus on domestic, sometimes contradictory, expectations and regulations tend to ignore the need to respect FoRB and SOGI as they are not coherently present in national legislation. As shown in the following section summarizing the interview results, businesses use three different strategies, i.e., neutrality, ignoring, and active engagement and each strategy results at the corporate and community levels of providing respect for SOGI and FoRB.

Interview Results

Strategies Businesses use to Respect Freedom of Religion and Non-discrimination Based on Gender Identity and Sexual Orientation at the Corporate Level

The interview results outline strategies businesses use at the corporate level in providing respect to FoRB and SOGI and the implications each strategy may have for the community level. The corporate level means human rights regulations within the business workspace. The community level covers business relationships with other actors such as investors, contractors, business partners, civil actors and society in general.

At the corporate level, the interviews revealed three strategies businesses use to respect SOGI and FoRB in business activities: neutrality which tends to privatize both FoRB and SOGI as private life components; ignoring FoRB and SOGI in corporate policy commitments because businesses’ employees do not request respect; and finally an active engagement strategy, relying on international soft law to ‘identify, prevent, mitigate and account for how they address their impacts’ related to SOGI and FoRB (UNHRC 2011). The results show that national businesses mostly use neutrality and ignoring strategies in resolving SOGI and FoRB clashes within business activities. In contrast, international businesses, which take into account international human rights law, tend to use the active engagement strategy.

Using the neutrality strategy, some national businesses restrict their employees’ FoRB and ban so-called ‘religious propaganda’ in the workplace (Horbachevska 2024). The first reason business participants provided for using a neutrality strategy was that they aimed to not infringe on the rights of others to enjoy freedom from religion. In addition, one national business officer stated that by prohibiting religious expression, businesses preserve the neutral image of the company as a neutral and universal service provider:

this is possible as a result of the context, which is Ukraine … about the Moscow and Kyiv Patriarchates and this is a very painful dispute, in which we as an employer have no right to integrate into this dispute… Therefore, there is a desire, in fact, for employees to refrain…from radical manifestations of religion at work. — Interview, Director of Sustainable Development, June 2023.

When responding to the question of why it is important for the company to adopt a specific rule to ban religious propaganda, the compliance officer of another business said:

For us, it is not acceptable for someone to bring some postcards calling for political parties or some religious communities… because we expect that our workplace workers will be engaged in work, and other issues they need to deal with not within working hours. — Interview, Compliance officer, June 2023.

Interestingly, the same business compliance officer stressed that it would be inappropriate for the business actor’s office managers to work in hijab because this would infringe on the corporate image and would put at risk the same treatment for all employees, as no one can have special rights in comparison to others. Additionally, the motive for such policy is to ensure customers’ trust in employees. The business compliance officer stated that

It is unlikely that even from an ethical point of view it would be acceptable if a person is served in Hijab. Imagine: you go, contact our company, and you are served by a person in Hijab, that is, it will create a certain situation, perhaps some tension for you… we want our customers to pass by, to understand who they are talking to, who it is. So that … creates a certain atmosphere of trust to the company, trust to its employees — Interview, Compliance officer, June 2023.

The human resource manager of another business stressed that it is an enormous challenge for her to imagine that even though Ukrainian legislation allows wearing religious clothing, there is no prohibition for doing so at work. As the topic of hijab is not the main narrative in Ukrainian anti-discrimination discourse, not all businesses, specifically those businesses that only consult national legislation, know that religious clothing is a part of personal identity and is an internationally protected characteristic of religious identity. Therefore, forcing people to hide their personal identity at the workplace directly infringes on their rights to FoRB (Alidadi 2017; Grim, Johnson 2021, 234).

Furthermore, the business neutrality strategy excludes FoRB and SOGI expressions from public life. The neutrality strategy leads to excluding employees’ personal identities from public life and making FoRB and SOGI expressions private life components (Petersen 2020). For example, an interviewee who works as a compliance manager stated:

We did not emphasize sexual orientation. Why? Because it seems to me that at work a person does not spread his private life, including sexual life. — Interview, Compliance manager, June 2023.

Privatization of FoRB and SOGI also occurs because of the corporate policy commitments, which assume that there is no need to specifically address SOGI and FoRB in the workplace due to the absence of requests. Therefore, such commitments ignore clashes that can arise between SOGI and FoRB within business activities.

When adopting the ignoring strategy, businesses argue that there is no need to address and resolve issues related to SOGI and FoRB because society in general, business partners, and employees do not actually request it:

…just neither board nor people feel as important… it is not vital to people, they do not see in that some criticality, a prize as in career growth to reveal that ‘I was discriminated’. — Interview, Director of Social Policy, July 2023.

Other businesses made similar statements. For instance, one advertisement business inclusivity officer stated that there is no need for their team to introduce some specific regulation for FoRB:

We know for sure that we have these categories of diverse staff both by faith, by nationality, and by sexual orientation. They are, but there is no clear manifestation in the workplace… there is no request from these people to say that they have problems. Perhaps the culture does not allow them to appeal to company management. — Interview, Inclusivity officer, June 2023.

Such opinions reflect the general cultural context in Ukraine where people avoid expressing their identities out of fear of being excluded from public space. For example, the following comments were made during the interviews:

When you come to the company management to defend LGBT+, you say that among our people there are those who, because of the unwillingness of this society, because of the non-friendly workplace cannot be visible to show their personality, their experience of people they love. — Interview, Director of Sustainable Development, June 2023.

The management apparatus has representatives of LGBT+. Of course, none of them ever talked openly about it… it is not customary to talk about it, to voice, and that is why there is no problem because no one says anything about it, and there is no indicator… look at the local context, we take a small settlement … people do not have a choice, are afraid of losing their work. Because they know what perception is in society (of LGBT+), how will he or she be able to say it? — Interview, Director of Social Policy, July 2023.

These statements highlight the ineffectiveness of the ignoring strategy, which leaves no space for employees to raise a problem of discrimination based on SOGI and FoRB. Therefore, businesses using the ignoring strategy avoid problems instead of resolving them.

With an active engagement strategy, a few national and mostly international businesses take their human rights policy commitments more seriously. Three business participants explained that their policies and practices are inclusive for both SOGI and FoRB. For example, a corporate social responsibility manager stressed that the company pays no attention to personal appearance, whether it concerns an LGBT + or religious symbol; rather, this business’s policy and practice allow everyone to express religious, gender, or sexual identities. Another business’s human resource manager said that the company sees a significant difference in behavior and openness towards LGBT + and religious people in Latin America where the business actor has offices (proactive expression of SOGI or religious identity) in comparison to Ukraine (culture of hiding personal identities). Despite these differences, the business promotes the same principles of inclusion in both countries and encourages individuals with religious and SOGI identities to work with this business. This same business human resource manager stated that it is how a truly inclusive business should look – the business should accept people from all protected groups.

Furthermore, representatives of businesses that actively engage in providing respect for FoRB and SOGI stressed how important it is to use international guidance such as the UNGPs that provide tools to identify, prevent, mitigate and account for possible infringements of freedom from discrimination based on SOGI and FoRB. Two examples of how to effectively respect FoRB and SOGI were provided during interviews. In the first case, the business hosted an exhibition of contemporary Ukrainian artists in its offices. The exhibition, devoted to freedom, included one work about women revolutionaries in Muslim countries. However, several Muslim male workers complained about the work, claiming that it was not acceptable to show such work as it went against their religious beliefs. Muslim male workers requested to exclude the artwork from the exhibition. The business actor’s managers undertook an assessment of the problem and asked the opinion of the female workers on the potential harm feminist exhibitions can cause to Islamic believers. Muslim women working for the business did not agree that the artwork about women revolutionaries in Muslim countries was humiliating to the Muslim faith. The assessment conducted within the business concluded that the art work about women revolutionaries in Muslim countries did not infringe on the FoRB of the male Muslim employees, and as a result, the company ultimately did not exclude the work from the art exhibition.

In the second example, after successfully recruiting a new employee, a human resource manager who was Muslim realized that the person he had hired was transgender. The human resource manager argued before the company board: ‘religion allows me to hang such people on trees’. He wanted to fire the transgender individual. After several similar situations, the human resources manager was dismissed due to different values between him and the business. The company and its management experienced constant opposition of this manager to SOGI expressions in the workplace using his religious freedom to legitimize such restrictions. In contrast, the business management wanted to uphold inclusive values and respect for all possible personal expressions of employees.

These examples of active business engagement in resolving conflicts between FoRB and SOGI prove that businesses that are sensitive and attentive to identities employees express, can provide better respect for internationally recognised human rights. One of the human resource officers of a company that grew from a Ukrainian project to a larger international business explained that it is crucial to conduct a benchmark analysis in the company to discover ‘what is in the world, in this region and accordingly, on the level of personal insights’. — Interview, Human Resource Officer, June 2023. The corporate social responsibility officer of Ukrainian IT-business operating abroad highlighted that, despite some regional and local religious or cultural specifications, such as a considerable number of employees belonging to the Catholic confession in Lviv (the city of the West of Ukraine), whose needs the company should take into account, the universal values of human rights respect should exist in the corporate policy commitments.

It is the way to create a corporate human rights policy commitment in a specific country, which simultaneously corresponds to the UNGPs. A risk of income and investments decrease without appropriate corporate due diligence regulations was also mentioned as a reason for active engagement in providing respect for FoRB and SOGI. A compliance officer of one interviewed business stressed that as Ukrainian businesses go to international markets, especially to Europe and America, the quality of their human rights corporate policy commitments will directly affect the income of these businesses. For example, she said:

In many European and American companies, which have quite a high level of diversity, they have a requirement to cooperate in tenders where vendors should also be diverse and tolerant to win the tender. — Interview, Compliance officer, June 2023.

Each of the analysed strategies impacts not merely the corporate level of providing respect for FoRB and SOGI but positively or negatively contributes to the community level by resolving clashes between FoRB and freedom from discrimination based on SOGI. The next sub-section explores what effects businesses may have at the community level when these businesses actively engage in providing respect to SOGI and FoRB.

Implications for the Community Level

Some companies in Ukraine make public statements or actions, such as painting the corporate emblem in rainbow colors, in support of LGBT + community rights (Bereziuk 2023). Such a way of expressing respect for LGBT + community rights has two effects. First, at the corporate level, corporate policy commitments in support of SOGI challenge religious freedom-related justifications of discrimination based on SOGI. Second, at the community level, such policy commitment expresses the business actor’s active social position in public debates that arise among religious actors, state actors, and civil society.

The active social positioning of businesses can affect community- level discussions within conflicting social expectations regarding FoRB and SOGI protection. Several businesses representatives during the interviews claimed that it is important for the company to work on debunking stigma and stereotypes. The same interviewees claimed that it is also important to create a corporate culture of inclusion at the top-managers’ level and shared specific examples of successfully resolving issues in providing respect to FoRB and SOGI at the corporate level. With regard to the businesses’ actions to enhance respect for SOGI and FoRB, one interviewed business representative referred to changing worldviews of both company management and employees. The human resource officer of one of the largest state-owned companies in Ukraine also referred to the company influence on the community level:

In our management opinion, big companies are not only about profit, not only about the economy, but they are also about social responsibility because their voice has an impact, it matters, that is, if they support some things, they will be able to influence general public opinion… if its clients are an enormous number of people, then it is has a social responsibility for its actions. If people start changing their minds, it should not be, you know, just regulation. That is, if we even write 100 policies, it will have no effect. — Interview, Human Resource Officer, June 2023.

A chief operating officer of another business shared the company’s vision of changing its logo to the LGBT + rainbow colours:

is not just to change the logo, it is to state your position… about a bunch of narratives in general, which Ukrainian society now has, but these are specific things where people are discriminated. — Interview, Chief Operating Officer, June 2023.

Another business’s compliance manager highlighted that one of their company board members is

Greek-Catholic, a very religious person, who has publicly said that when we take gender stereotypes, we are taking stories that we have received from scripture and who publicly told one of the clergy that the wedding ceremony should be rewritten, because she is not sensitive to women, and this is the same person who supported LGBT + community. — Interview, Compliance Manager, June 2023.

The interviews further revealed how businesses’ firm positions on conflicting social expectations regarding FoRB and SOGI affected the mind-set of the business owner who was also religious. This religious owner stated when responding to the interview questions that his personal religious views on LGBT + community rights and SOGI had transformed significantly throughout the last ten years under the influence of his management. For example, he stated that when he wrote a post on social media about not being willing to see LGBT + parades in Kyiv, he received intense remarks from the business actor’s management that those remarks were not in line with corporate views towards SOGI protection. He continued that

It was very revolutionary that, for example, I had more stiff views on LGBT+…I was attempting to bring them to the true path… but then, after a certain evolution of reflections, LGBT + friends appeared to me, then people who openly declared their orientation appeared… business’s management recommendation that I should not express opinions against LGBT + protection as it is not appropriate for the company’s values… I lost the desire to convert them, I realized that it was their business, and it is not my business to convince them. — Interview, Business owner, June 2023.

In this way, a business owner’s perception changed over time under company pressure, namely after people on the business board expressed their resistance to religious claims in restricting SOGI. Therefore, the business board changed this business owner’s attitude to religion as the obstacle for accepting the freedom from discrimination based on SOGI.

Discussion

The core idea of corporate responsibility to respect human rights – the idea of social expectations – may be in conflict with other expectations in society. A passive reflection of such conflicting social expectations by businesses in their corporate policy commitments can lead to a negative impact on human rights. Ideological, religious, and legal inconsistencies of SOGI and FoRB protection in Ukraine are examples of such conflicting social expectations placing businesses in ‘a legitimacy dilemma from contradictory expectations and pressures’ (Gaur, Settles, Väätänen 2023, 1395) between human rights and national or social perspectives on FoRB and SOGI protection. The introduction of SOGI protection in Ukrainian legislation is followed by strong opposition from religious and traditionalist actors. This affects relationships at the corporate level when some business representatives believe that their religious freedom allows them to discriminate against colleagues, customers, or contractors. On the other side, internationally- oriented businesses can express their support for SOGI rights. As a result of such conflicting social expectations, businesses need to manoeuvre in this ‘legitimacy gap’ in an attempt to balance social pressures and requirements from both international and national conflicting expectations (Li et al. 2020; Diez, Schiller, Zvirgzde 2016). The absence of such a strict separation between state and church results in the use of other strategies along with neutrality. The active engagement was identified as the most efficient corporate policy commitment strategy in resolving issues arising when providing respect to FoRB and freedom from discrimination based on SOGI in Ukraine as this strategy reflects the demands set out for substantive respect for human rights in the core business and human rights instruments.

It should be briefly noted that the interview results revealed that along with the important role business plays in society, a purely business interest in obtaining more international funding and investments may be another explanation for active business engagement with respect to human rights (Gaur, Settles, Väätänen 2023, 1399). The interpretation that better compliance with business and human rights standards can increase profits provides an interesting angle to the question of how frameworks such as the UNGPs can shift the meaning of profit maximization within business activities. In this way, the more international investors pay attention to human rights compliance when deciding on funding, the better respect to human rights businesses will provide.

Furthermore, when giving preferences to one of the strategies, businesses’ responses in favour of a neutrality strategy or a strategy of ignoring these issues vary from fear of potential conflict to perceived lack of demand on behalf of employees or ‘unwillingness of this society’ due to the general cultural context in Ukraine. More specifically, people avoid expressing their identities because of personal fear of being excluded from the public space, or because of business’s fear of not complying with cultural or religious specifications of a certain community. Correspondingly, selecting an active engagement strategy can be situational, resulting from real-life conflicts that need to be resolved or normative, arising from the company’s corporate policies to provide substantial respect for human rights, or from the will to enter the international business market, specifically the European Union. Different motivations of companies to uphold the respect for SOGI and FoRB in Ukraine lie in a broader world trend of businesses to implement inclusivity policies in order to ‘stay competitive and relevant as a brand’ in societies which orient more and more on inclusion and human rights (McClure 2012, 184).

The business and human rights framework indicates the social expectations for businesses to respect human rights, but, at the same time, it connects the very respect for human rights with minimum internationally recognized standards of human rights protection. This gives reason to see the corporate responsibility to respect human rights as having a transformative effect on social expectations themselves, especially in cases where there is a conflicting understanding of human rights in society itself. Businesses focused on the need to ensure internationally recognized standards can potentially have this transformative impact on resolving social conflicts around FoRB and SOGI rights that may exist at the level of a particular society.

In regard to the transformative effect of conflicting social expectations on FoRB and SOGI, Lucy Vickers argues that realizing non-absoluteness of religious freedom and equality on religious grounds gives space for compromising FoRB with other rights (Vickers 2007, 40). Such compromise can bring the understanding of FoRB and freedom from discrimination based on SOGI as non-clashing and complementary rights in anti-discrimination discourse. Additionally, an active engagement strategy can lead to a change of mind-set of the religious workers, religious customers or contractors, or other affected communities in addressing their personal religious, gender, and sexual identities, and more generally – it can change legal, ideological, and religious discourses and lead to a reduction of SOGI marginalization at the community level.

Conclusion

This article started with the question of whether businesses should be neutral or actively involved in providing respect for SOGI and FoRB at the corporate and community levels. In answering this question, we argued that public expectations cannot be considered in isolation from the crucial aspect of the corporate responsibility to respect human rights, which is that such respect must ensure internationally recognized human rights principles. Through the idea of business actors’ indispensable responsibility to respect human rights, it was important to discover which strategy of providing respect to FoRB and SOGI is the most effective.

Our empirical research on corporate policy commitments to respect human rights by businesses operating in Ukraine illustrated a difference in how international and national companies frame their human rights commitments to respect FoRB and SOGI. Businesses operating in Ukraine apply three strategies to address conflicting social expectations to protect FoRB and SOGI – neutrality, ignoring, and active engagement. National companies tend to use the neutrality or ignoring strategy when providing respect for FoRB and SOGI, which cannot resolve or contribute to resolving conflicts that exist at the community level regarding FoRB and SOGI. In contrast, international companies or national companies with international branches are more oriented towards the active engagement strategy, as they are less affected by conflicting public expectations. The active engagement strategy in the business and human rights sphere can contribute to the creation of a more consistent policy of de-marginalization and recognition of freedom from discrimination based on SOGI, where FoRB is a non-clashing right but not a ground for discrimination based on SOGI.