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Blog | Thursday April 13, 2023

Why Every Business Needs to Think about Responsible AI

Preview

AI technologies are transforming the way we engage with the world and the way companies conduct business. From generative AI technologies like ChatGPT, to facial recognition, to AI solutions for hiring, distribution, or research and development, evolutions in AI are transforming business operations at a startling pace.

This transformation presents complex, system-wide human rights opportunities and risks.

Tech companies are taking steps to integrate responsible AI practices to address these issues for some time. However, the risks and opportunities associated with AI are related to both the design and development of technologies, as well as how technologies are deployed and used by companies outside of the tech sector.

It’s time for all companies utilizing AI in their products, services, and operations to take a human rights-based approach to the deployment and use of AI.

BSR has worked with member companies to explore the potential human rights impacts of AI in four key industries: retail, extractives, financial services, and healthcare. We focused on identifying the current use cases of AI in these industries, assessing the potential human rights impacts, and recommended initial steps to address adverse impacts.

The findings are summarized in four industry briefs that we hope will serve as a starting place for companies.

The Use of AI in Different Industries

Retail, extractives, healthcare, and financial services companies are deploying and using AI systems in ways that may be connected to significant human rights risks. A few examples of AI use cases include:

• Retail: Personalization of customer experience, improved product search, in-store assistance, demand forecasting, and inventory management in the retail sector.
• Financial Services: Facial and voice recognition for account access, fraud detection, and credit risk assessment in the financial services sector.
• Healthcare: Patient care personalization, care delivery, and research and development in the healthcare sector.
• Extractives: Data collection and analysis, exploration, workplace management, and advanced monitoring in the extractives sector.

The use of AI technologies can alleviate or exacerbate human rights impacts, including but not limited to:

• Violations of the right to privacy through the collection, storage, and use of customer personal data;
• Discrimination by race, gender, age, disability, or other protected categories. This can manifest due to biases present in training data or using AI-generated insights in discriminatory ways.
• A positive impact on labor rights, via improved labor planning and better health and safety measures. However, the use of AI technologies may also result in loss of employee autonomy or privacy.

Regulatory Landscape

To date, there’s been limited focus on the responsibility of non-tech companies to address human rights impacts of their AI technologies. However, this is changing, in part due to upcoming regulations such as the EU Artificial Intelligence Act, which sets out a risk-based approach to assessing the potential risks AI solutions may pose to people’s rights, and the Corporate Sustainability Due Diligence Directive, which will require companies to take appropriate measures to identify the actual and potential human rights impacts arising from their operations.

To help companies outside the tech sector respond to upcoming regulations and act in accordance with their responsibilities under the UN Guiding Principles on Business and Human Rights, BSR is working with members across different industries to help them identify their human rights impacts related to AI.

BSR’s Industry Briefs on AI and Human Rights

Over the next few months, we will publish briefs for specific industries setting out potential human rights impacts of AI solutions and recommendations to mitigate them. These briefs are intended to help companies bring a human rights-based approach to the way they design, develop, and deploy AI technologies.  

• AI and Human Rights in Retail
• AI and Human Rights in Extractives
• AI and Human Rights in Financial Services
• AI and Human Rights in Healthcare

For further information, including how BSR can support you with the responsible deployment of AI technologies, please contact the team.

Blog | Wednesday October 18, 2017

Why Business Supported the Clean Power Plan: It Made Economic Sense

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The last few weeks in the United States have seen an unprecedented number of consecutive natural disasters—including both hurricanes and wildfires—exacerbated by our changing climate. In fact, a September poll shows that a majority of Americans assess that it is likely that climate change indeed worsened the impact of these events.

In this context of heightened public awareness and increased devastation due to climate change, EPA Administrator Scott Pruitt signed a rule last week that will begin to roll back the Clean Power Plan (CPP). The Administrator made an economic argument in support of the repeal, claiming that regulations “ought to work with folks all over the country and say, 'how do we achieve better incomes by working with industry, not against industry'.”

However, all evidence points to the fact that climate action is good for the economy. That’s why many companies in the private sector have supported the CPP, arguing that it is good for business.

The state of California, which has the sixth-largest economy in the world, is in many ways a poster child for this argument: In 2015, California simultaneously reduced its greenhouse gas emissions and achieved its strongest economic growth since 2005. The state has some of the most ambitious climate targets in the United States, and in 2016, it created more jobs than any other state for the third year in a row.

California isn’t unique. The renewable energy industry overall is creating jobs at a rate of 12 times the rest of the U.S. economy. One recent study found that putting cities on a climate-friendly growth trajectory could save as much as US$22 billion by 2050 and avoid carbon emissions equal to India’s entire annual footprint.

The private sector sees this. When the CPP was instated in 2015, 365 companies and investors, including General Mills, Mars Inc., Nestle, Staples, Unilever, and VF Corporation, wrote a letter in support of the plan. In it, they stated that their “support [was] firmly grounded in economic reality … Clean energy solutions are cost effective and innovative ways to drive investment and reduce greenhouse gas emissions. Increasingly, businesses rely on renewable energy and energy efficiency solutions to cut costs and improve corporation performance.”

Since then, four of America’s largest companies—Amazon, Apple, Google, and Microsoft—filed amicus briefs in support of the CPP. As large consumers of electricity, these businesses sought to limit their environmental impacts in response to concerns about climate change. While they have developed their own renewable energy facilities to meet their sustainability goals, they argued that the Clean Power Plan would provide them with more and more cost-effective options. 

Even in the traditional energy industry, which arguably is more vested in a coal-friendly future than business writ large, not all companies have the same perspective on the CPP. While Peabody, America’s biggest coal miner (which came back from bankruptcy under the new U.S. presidency), welcomed the repeal, utilities have not been as vocally opposed. In fact, Reuters found that of 32 utilities in the 26 states that filed lawsuits over the CPP, “the bulk of them have no plans to alter their multi-billion dollar, years-long shift away from coal.” 

Business action in favor of climate-compatible solutions gained momentum leading up to the Paris Agreement in 2015, and it has continued since. For example, 619 companies are taking bold climate action through the We Mean Business coalition, which represents a market capitalization of US$15.5 trillion, including 32 companies with individual market capitalizations of more than US$100 billion. These companies emit a total of 2.31 gigatons of in their direct operations and purchased electricity, which is equivalent to the annual emissions of the Russian Federation. Moreover, more than 100 of these influential companies are committed to sourcing 100 percent renewable power globally, working to massively increase demand for—and delivery of—renewable energy.

Not only do the economic claims of the current EPA seem unlikely, but there is increasing evidence that the agency’s policies may harm the economy. Companies recognize this, which is why we’ve seen so much business support for the CPP. It’s also why business will continue to lead on climate action more broadly, even if it must do so without the policy frameworks that support U.S. leadership on this issue. Indeed, other countries around the world, including China, increasingly recognize that climate leadership translates to economic leadership—a perspective that they are likely to be rewarded for in the long run.

Blog | Tuesday March 31, 2020

Meet the Moment. Build the Future.

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As the health and economic impacts of the coronavirus pandemic continue to spread, we at BSR are working hard to continue supporting our member companies around the world, along with our many other partners, as you navigate this extraordinary and unprecedented time and contribute to our collective well-being.

From speaking with many of you, we know how challenging it is to manage effectively during this difficult and uncertain period, which poses significant impacts on your businesses, employees, and supply chains. Many of us are also coping with the stress of health impacts on ourselves, our families, and our communities.

This remarkable moment calls on all of us to bring our very best. We are quite literally writing history through countless acts and decisions we make every day.

Our approach at BSR can be summed up in six words: Meet the Moment. Build the Future.

Here’s what we mean by this.

Meet the Moment

It is essential for all of us to adapt sustainability activities to address the profound short-term needs faced by companies, employees, and communities in these challenging times. From speaking with many of you over the past few weeks, we know that you are facing new, unprecedented questions. How do I ensure that we continue with our commitments when our business is in such difficulty, with budgets under intense pressure? What is the right thing to do to support our employees, and those who are employed in our supply chains? How is the economic crisis impacting traditionally marginalized groups, and how can we respond to that? Can we reorient manufacturing to deliver on health care needs? Should we publish our sustainability report at a time when doing so might appear tone deaf?

We have been proud to see so many of you take action to protect employment, help generate badly needed medical equipment, provide capital, and support essential public policy steps to address the health and economic impacts of this pandemic. We are here to help you think through how to respond, to build partnerships, and to amplify your efforts.

Build the Future

As challenging as the day-to-day is right now, this is also a time to think ahead to building a fundamentally different future. For business, this means more emphasis on resilient business strategies, something which we have been discussing with many of you, and is now much more than an abstract concept. Sustainability questions can and should be a core element of such strategies. We also see the rising importance of ensuring societal resilience. This is why business has a strong interest in remaking the social contract to meet 21st-century needs, ensuring economic vitality, stability, and security. We know also that the next challenge to resilience could come from environmental challenges that risk creating serious social disruption and economic loss. The future may not seem relevant right now, but if this episode teaches us anything, it is that change can come more quickly and powerfully than we might think.

BSR’s Efforts

We are here to help you both meet the moment and begin to think about how to build a different future. We know that the pandemic is having a profound impact on your business. We also know that sustainability can be one of the core elements of navigating this crisis while also bolstering your position once the crisis passes. To help you achieve these goals, we are re-orienting some of our activities to help you meet these extraordinary circumstances, while also staying focused on longer-term objectives that remain extremely important, and indeed, could be seen as even more important.

• Communications: We will be producing a series of blogs and webinars to help you understand and discuss the impacts of the pandemic on sustainable business, both overall, and on specific issues like human rights, women’s empowerment, and the impact on ESG investing. In addition, our industry teams are bringing member companies together to share challenges and best practices within their sectors.
• Collaboration: We have shifted many of our collaborative initiatives to virtual formats, and the initial signs are that these are delivering on group objectives well, in some cases with even more participation as virtual models take hold. We are also speaking with many of you on how we can generate new collaborations that meet the moment, whether staying focused on climate action despite turbulent times or designing more resilient supply chains that will be needed once the crisis subsides, and we welcome your inputs on other matters we can help you navigate with peers. We also remain mobilized to support you one-on-one via advisory work.
• 21st-Century Social Contracts: We are accelerating our work on 21st-century social contracts. We welcome your engagement on this crucial issue, and will have content coming in the next two weeks on how business can not only meet short-term needs, but also contribute to more resilient social contracts that enable economic vitality, as well as economic mobility and security in a fast-changing world.
• Emerging Issues/Scenarios: To help you stay focused on the future, we are launching the first in a series of emerging issues briefs in June. This will be delivered by our Sustainable Futures Lab and will be based in part on a virtual salon in late April.

This crisis will pass. Our world, our businesses, and our economies will not look the same in the post-pandemic environment. But our values and objectives will not only endure, they will provide the very basis for seeing us through the crisis. They will also serve as the foundation for structural changes that produce more resilience, more economic fairness, and an ongoing commitment to preserve natural resources.

And these values will guide us as we meet this moment and build the future—together.

Blog | Tuesday April 11, 2023

Call to Action for Businesses on the Medication Abortion Rulings

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Full access to Mifepristone (part of the two-drug regimen for medication abortion in America) remains legal after the US Supreme Court blocked new restrictions from taking effect. The Supreme Court’s order on Friday, April 21 was a decision about whether the lower court’s stay could remain in place—litigation on the merits of the case will continue in the Fifth Circuit Court of Appeals with oral arguments on May 17.

For background, on Friday, April 7, two federal judges issued opposing rulings in litigation regarding access to Mifepristone (Mife), a safe, effective prescription drug utilized in medication abortion and miscarriage care. Mife has been FDA approved for 23 years and is how more than half of patients in the US access abortion care. A federal judge in Texas ruled that the FDA's initial authorization of Mife was improper and sought to suspend the pill’s FDA approval. Less than an hour later, another federal judge in the state of Washington issued a ruling that directly conflicted with the Texas ruling, ordering the FDA to make no changes to the availability of mifepristone in the 18 states that filed that lawsuit. These two rulings set up a legal standoff that will need to be resolved by higher courts. The Fifth US Circuit Court of Appeals granted the Biden administration's request to put on hold part of the Texas judge's order blocking the FDA's approval of the pill.

The rulings have created confusion about whether the drug is still legal and accessible despite having been safely and effectively used by millions of people since it was approved in 2000. This has been a rapidly evolving situation over the last several weeks, but we now know that patients will continue to be able to access Mifepristone pending any further court rulings this summer.

Access to medication abortion is even more important since the Supreme Court overturned Roe v. Wade last summer. According to new research on Talent and Social Policies conducted by Morning Consult, on behalf of BSR: 

• By a 2:1 margin, workers want to live in a state where abortion is legal and accessible. 
• Nearly half of workers are concerned for themselves or their partner being criminally charged or going to prison for having an abortion in a state where it is illegal. 
• More than a third of workers are concerned about having enough money for themselves or their partner to travel out of state for an abortion. 

Restricting access to comprehensive reproductive care, including abortion, is a business and economic issue that employers are already navigating. A ban or further restrictions on medication abortion will result in workers needing to take more time off to find and access healthcare, increase travel and logistical burdens, raise healthcare costs and potentially additional medical follow-up, and increase trauma for employees seeking time-sensitive services and facing unexpected hurdles. In the number of states where abortion is legal, reproductive healthcare systems could potentially be overwhelmed by people traveling to them for care. 

These restrictions harm women ages 18 to 45 and have disproportionate impacts on lower-income people, people who live in rural counties, those with disabilities, and families navigating fertility treatments as well as higher-risk pregnancies. Companies need to support efforts to ensure that workers have access to essential healthcare. This is a matter of safety, privacy, and workforce well-being.   

Understand the Impact of This Case   

BSR is a signer of Don’t Ban Equality which provides the following background and recommendations. 

• This case will impact employers of all sizes, in every state, and its potential outcomes represent uncharted territory.  
• In addition to safe, effective, and widely used medication abortion care, the case would impact the safest, most effective form of early miscarriage care, and potentially fertility care. 
• Employers should evaluate and commit resources (time, travel, and expenses) to support their workforce and dependents to get care, which may increase as employees need to travel further for abortion and miscarriage care. 
• Employers should be aware that a nationwide ban on mifepristone would compound gender, economic, and racial inequities, and that providers are already stretched thin. 10 US States Would Be Hit Especially Hard by a Nationwide Ban on Medication Abortion | Guttmacher Institute and Where Restrictions on Abortion Pills Could Matter Most in the U.S. - The New York Times (nytimes.com) 

Recommendations for Business Action  

1. Be vocal now. Speak up about how this ruling could impact the workforce and the benefits you provide to your workers and their families. Eliminating access for this abortion and miscarriage management translates into more logistical burdens, more time away from work, and an additional threat to employee safety and well-being. Speak to the business press, including on background, so they can understand and amplify business concerns, what steps businesses are taking to protect workers/employees, and what challenges employers are facing. Businesses should communicate actions they are taking with their workforce—as employees will ask about how their employers’ existing commitments, programs and policies are affected.
2. Stand up in business associations. Business associations that your company belongs to can also stand up—they can sign amicus briefs, engage privately with officeholders, and provide safety in numbers. Hundreds of pharmaceutical and biotech companies as well as individual executives signed an open letter opposing the Texas judge’s ruling. The BIO industry association alongside companies and other executives in industry ultimately filed an amicus brief at the Fifth Circuit and the Supreme Court citing threats to pharmaceutical innovation and industry standards. The Pharmaceutical Research and Manufacturers of America (PhRMA) filed an amicus brief with the Supreme Court citing concerns about widespread industry disruption if a ban on Mifepristone went into effect.
3. Communicate with lawmakers. Talk with office holders that represent your operational locations about the need to codify access to reproductive care into law, including the federal Women's Health Protection Act, and any efforts for codification in supportive state environments. Reach out privately to lawmakers in states where new restrictions are advancing right now to oppose them, including North Carolina and Florida (also see the State policy bill tracker and What US Abortion Legislation Looks Like in 2023).
4. Understand business impacts on customers and affected stakeholders. Identify how your business’ actions, products, and services might impact those seeking reproductive healthcare, including data tracking and surveillance, financial services for health care providers, pharmaceutical sales policies and practices, etc. Shareholders are already demanding more from companies post-Roe.
5. Align corporate political giving heading into the 2024 election cycle. Employers that support diversity, equity, and inclusion need to consider the bottom-line and personal consequences of providing uncritical support to lawmakers that are advancing dangerous policies that are opposed by a majority of workers in the US. Companies can do self-assessments and use tools like the Erb Principles for Corporate Political Responsibility to help companies respond to new questions and pressures related to their political influences – from employees, investors, customers, and the public.

BSR’s Center for Business and Social Justice is tracking the developments of this case and continuing to help companies navigate this chaotic environment. Reach out to BSR’s Center for Business and Social Justice to learn more about resources, practices and ways companies can get involved.  

Originally appeared on LinkedIn. 

Blog | Thursday June 15, 2023

The US Supreme Court Ruling on Affirmative Action: A Business Response

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It is expected that the US Supreme Court may issue a landmark decision that ends the practice of affirmative action this month. The ruling would effectively ban US colleges and universities from considering race as a factor in admissions decisions which, as illustrated by existing state-level bans of the practice, can reshape the demographics and diversity of campuses for generations.

More broadly, as research has shown, the consequences of a national ban on affirmative action are likely to ripple throughout the US economy as decades of efforts to increase social and economic participation by historically excluded populations are upended and schools, businesses, communities, and governments become more racially, and even ideologically, homogeneous.

For business leaders that care about hiring and retaining diverse and exceptional talent, developing and delivering innovative products and services, and attracting a diversified consumer base, the end of affirmative action should be seen as more than another philosophical or policy debate in the so-called “culture wars.” Indeed, business leaders should understand and respond to the end of affirmative action for what it is: a significant and material risk to long-term corporate economic success.

As such, bold and committed action is needed in the months and years ahead to ensure that progress toward a more diverse, equitable, and inclusive economy is not lost, nor business value diminished. Even as we wait to see the final ruling, there are seven key actions businesses can take:

Underscore Your Company’s Long-Term Commitment to Diversity
 

• Reiterate your company’s commitment to building and maintaining a diverse workforce and organization. According to recent public opinion polling, 69 percent of adults agree that a company should respond to issues surrounding race, including supporting schools and communities teaching about the impacts of slavery and racism. Raise awareness of your company’s commitment to operationalizing DEI initiatives, developing products and service offerings that meet the needs of diverse communities, and supporting broader racial equity and social justice efforts.
• Commit to corporate accountability initiatives that focus on racial equity and DEI in the workplace. Business leaders need to be regularly exposed to and equipped with educational resources and practical tools and can seek out opportunities to participate in current and emerging civil society and philanthropically supported efforts. Among others, these might include:
   
  • Pilot new corporate standards tackling inequality from the Corporate Racial Equity Alliance, a partnership between PolicyLink, FSG, and JUST Capital. The standards will provide business leaders with clear goals to strive for, milestones along the path, and metrics to track in order to communicate progress in this work and earn greater trust. Piloting companies will receive individualized support from the Alliance and provide essential input to help shape the standards for the field.
  • Join the Expanding Equity network supported by the W.K. Kellogg Foundation, which offers resources, as well as learning and networking opportunities, for business leaders focused on advancing racial equity, diversity, and inclusion (REDI) strategies in their organizations. Several resources are available now, and a robust learning platform with courses on REDI strategy development and related topics will roll out later this year. 
• Assess your company’s hiring data to identify barriers to diverse talent acquisition and surface factors that may support the long-term hiring of diverse workers. This may include collaboration between human resources, communications, and legal teams to review job listings and ensure barriers and biases are eliminated. Companies may also evaluate their onboarding, performance review, and employee benefits policies and practices to understand where there may be opportunities to increase the retention of diverse workers.
   

Demystify Affirmative Action Impacts among Company Stakeholders and Bolster Good-Faith, Fact-Based Public, Policy, and Legal Discourse
 

• Support campaigns by industry groups and peers that inform how colleges and universities utilize affirmative action to enroll a diverse student body and highlight the direct and indirect impacts of the practice on your business. In the coming months, the broader narrative in the public around affirmative action is likely to be fueled by polarizing inaccuracies, misperceptions, and hyperbole. Business leaders should look to leverage their communications, policy, and other media infrastructure to elevate the discussion of affirmative action so that it is based on facts and the real, tangible ways in which the court’s ruling impacts your company and the broader economy. 
• Establish guidelines for your state- and federal-based political giving that minimizes donating to candidates who spread misinformation about affirmative action practices and impacts. As we head into what is likely to be a divisive and controversial election cycle, corporations can play a direct role in minimizing the extent to which bad-faith actors negatively influence public and policy discourse around affirmative action practice and impacts and the long-term benefits of a diverse, inclusive, and equitable economy, more broadly. Whether individually or in alignment with industry peers and other valued stakeholders, business leaders should consider how their political giving can be tailored toward political candidates and leadership that champion good-faith ideas based on fact and the economy’s long-term interest in mind.  
• Leverage philanthropic, community engagement, and corporate responsibility resources to foster the development of student admission approaches and strategies that support and safeguard diverse enrollment in higher education and at trade schools. Here, companies can collaborate with school leadership and educational associations to conduct regular engagement sessions or support research that informs admission officials’ understanding of potential admissions approaches and practices that can further support diverse talent development pipelines.
• Prepare for ongoing state- and federal-level engagement. Companies can ensure that their teams are equipped to monitor and support with amicus briefs to safeguard human resources initiatives, DEI programs, and other corporate diversity efforts at lower-level federal and state courts before they bubble up to the higher courts. Furthermore, given state-level policy already targeting DEI programs with an intent to send a chilling message, companies should expect copycat efforts in future legislative sessions.  

As we saw with the fall of Roe v. Wade last year, the end of affirmative action is likely to encourage partisans and extremists to seek out a myriad of legal, policy, and media levers to create unrest across jurisdictions. The business community cannot afford to watch from the sidelines or be caught off-guard because of a lack of action or infrastructure to reinforce and protect long-term business strategy.

BSR’s Center for Business and Social Justice works with a network of civil society partners and experts in reproductive health to provide tangible guidance to business. All BSR members can contact the Center for specific inquiries.

Blog | Thursday January 16, 2025

Six Actions for Business in 2025 Post-Roe America

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Since the fall of Roe v. Wade in June 2022, businesses ranging from publicly traded to owner-led are trying to bridge the gap in abortion access as part of workplace health, safety, and readiness in the years that followed. Simply stated, abortion access is part of gender equality, implicating over half of the workforce at various points in their career trajectories, as well as the economy on a macro level.

Furthermore, efforts to criminalize and ban abortion access harm more than just workers’ access to healthcare. Heading into 2025, threats to data privacy, commerce, travel, and regulatory structures add cost, chaos, and uncertainty across business operations.

Throughout 2024, the public’s support for abortion access increased across party lines, and demonstrable advances were made in the states. Voters in seven states expanded and protected abortion access for millions of people.

The stakes for business continue to grow as they wrestle with the workforce impact as tragic stories break through—from mothers, daughters, sisters, and wives—who have faced needless barriers to accessing care resulting in fatal or severe consequences from delays or ‘turnaways’ from emergency rooms. These women are executives, board members, frontline workers, and community leaders. 

While the new U.S. president said he plans to “leave the issue to the states,” it is more likely that the administration will spur an onslaught of additional barriers to accessing abortion, along with other forms of reproductive healthcare, ranging from contraception and miscarriage management to IVF.

Notably, there may be an effort to seek enforcement of the Comstock Act, which could be weaponized and interpreted in a way to serve as a legal basis for a nationwide ban on medication abortion. Additionally, threats to employee benefits and how they are administered may be on the horizon. Another concerning prospect is that federal contracting could be weaponized to disincentivize companies from protecting their workforce. 

At the state level, attorneys general and legislators will continue to have an important role in determining how abortion laws are protected or enforced. Access to abortion, fertility care, and maternal health care increased in 25 states and the District of Columbia. Simultaneously, there were continued attacks on reproductive health care, with a focus on creating barriers to fertility care, maternal health care, and abortion access, perhaps muted somewhat because these measures are not popular to amplify in an election year.

As state policies diverge, businesses will continue to play an increasingly important role as a firewall for their workforce. Restrictive policies continue to sow confusion and fear as healthcare providers navigate opaque laws creating avoidable medical emergencies and compounding existing issues from financial to travel burdens as distances to access care increase.

Physicians, threatened with criminal and financial penalties, continue to leave states or residency where abortion is banned, exacerbating healthcare deserts.

In an increasingly fraught landscape with new and quickly changing restrictions on a state-by-state basis, companies can expect to see increased litigation and costs. Companies should be prepared for the following actions from both state and federal actors, and their stakeholders: 

• Increased scrutiny and enforcement from attorneys general. In 2023, Republican state attorneys general threatened a civil suit against pharmacies dispensing mifepristone (one of two drugs commonly used in medication abortion). Recently, Texas sued a New York doctor for prescribing to a patient near Dallas, launching one of the first challenges in the U.S. to shield laws. Expect more actions from Republican attorneys general moving forward, with a sustained emphasis on medication abortion and the Comstock Act.
• State laws imposing financial penalties. Expect state legislators in abortion-restrictive states to continue to introduce bills seeking to penalize companies for policies that arguably conflict with state law. As an example, during the last legislative session, lawmakers in Texas introduced bills that would remove tax incentives for companies that provided abortion-related funding or would prevent local governments from doing business with such companies (even if the benefits were provided only outside the State of Texas). 
• Pressure from a company’s stakeholders, such as shareholder proposals regarding abortion, and employee demands. Companies should be prepared for increased scrutiny not only from state actors, but also from their stakeholders who will be interested in the company’s response to further legal changes moving forward. 
• U-turns on regulation. While much of health policy will be shaped by executive and legislative action under the incoming administration, a variety of pending lawsuits also may be affected. The outcome of pending litigation and potential regulatory changes under the new administration will determine whether employers must provide accommodations to employees after an abortion as part of the Pregnant Workers Fairness Act. 

In response, companies can take the following actions to prepare, anticipate, and protect their workforce, as well as communities where they live and work. 

1. Review employee health plans to understand and evaluate how they provide reproductive healthcare; what employees or groups of employees are entitled to this care; and how this care is provided in various states. Audit the availability of care to ensure coverage under all circumstances within networks through medical plans where the company operates, including remote workers. Companies are encouraged to: 

• Establish or expand overarching programs that support employees in emergencies and/or with travel costs associated with seeking healthcare in addition to paid sick days. 
• Close the gap on abortion access for workers that may not be eligible for regular benefits, such as hourly workers and contractors. 
• Communicate benefits and existing programs available to workers to help them access time-sensitive and confidential healthcare rather than making it hard to locate. 
• Take the Reproductive and Maternal Health (RMH) Compass benchmark, a new comprehensive performance standard for employers to measure their reproductive and maternal health benefit offerings.
• Have policies that support workers in the face of emergencies, such as a pregnant employee facing a healthcare crisis while traveling for work in a banned state. 

2. Make reproductive health access part of event and office site selection: Reproductive health influences people's choices about where they want to live and work. In the past two years, reproductive healthcare was included as a factor in determining CNBC’s Top States for Business. The National Bureau of Economic Research recently tracked that since the second quarter of 2023, the 13 states with total abortion bans are collectively losing 36,000 residents per quarter. Additionally, for the third consecutive year, a BSR/Morning Consult poll indicates by a 2 to 1 margin, workers want to be in states where abortion is legal and accessible. 

Companies may not publicize that reproductive health access is a decision-maker in site selection, but it is a new variable. Business leaders can: 

• Understand and manage the growing safety risks related to travel for your workforce. Review existing or consider establishing travel policies that acknowledge the risks of hosting events in places where abortion is illegal or inaccessible.
• Ask questions relevant to event site selection as well as long term footprint. For events, consider using contract language that allows cancellation without penalty if a destination state enacts legislation that would repeal existing legal protections or bans access to healthcare.  
• Consider state restrictions on reproductive health when selecting office locations, data centers or related assets that might give a state jurisdiction over the user data. 

3. Conduct a human rights due diligence assessment to identify risks to reproductive health privacy that may be associated with the development or use of new or existing platforms, devices, products or product features. The collection of user data by companies in all industries, and tracking of user’s online activity, movement and information creates significant risks to seekers and providers of reproductive healthcare services. This leads to operational and reputational risk for employers, brands and companies. (For example, the greater the distance an individual must travel to access abortion, the greater the digital trail created). Within recent years, an increase in litigation shows the direct risks of breached data privacy in relation to those seeking abortion care as cases surrounding geolocation data sharing, social media messaging, and digital information concerns escalate. Companies can: 

• Apply best practices for privacy principles such as data minimization, purpose limitations, purpose-based data retention, and user transparency and control.
• Deploy end-to-end encryption on private messaging services.
• Set default privacy settings to the highest level of privacy protection and ensure privacy protections are based on an opt-out model, not an opt-in model.

Shareholders are calling on companies to safeguard sensitive customer and user data that may be used to prosecute abortion cases, and regulators are requiring global companies operating in the EU to assess, address, and report on the negative human rights impacts connected with activities. 

4. Implement abortion-specific subpoena-response plans that are compliant with federal and state data privacy laws but scrutinize what is requested as well as informing consumers or clients of requests. As part of these plans, companies should ensure that their internal legal teams are involved and directly engaged in compliance efforts. Prosecutors may work in collaboration with law enforcement to gather financial information such as purchasing history or transaction data to prosecute individuals and healthcare providers. While the tech industry is often the most scrutinized, the finance, travel and retail pharmacy industries are also implicated. BSR published a roadmap, Navigating the Rollbacks in Protection of Reproductive and LGBTQI+ Rights in the United States: A Guide for Financial Institutions to equip consumer and institutional client-serving financial firms to assess and address the threats caused by criminalization.

5. Educate officeholders and decision-makers about the cost, chaos and collateral damage of abortion bans on the private sector. Business leaders should share with officeholders and decision-makers how abortion access is a material business concern. The collateral harm of restrictions extends well beyond abortion access – implicating talent pipelines, state reputation/rankings and creates unnecessary burden for business in an already fraught environment. Collective diplomacy by the business community can be a powerful way to educate officeholders on the cost and chaos caused by bans and restrictions. In particular, small businesses are among the most trusted institutions across the political spectrum. Companies can: 

• Prepare executives, including board members, to understand the topic and the vast implications. Executive awareness, understanding and support for wrestling with the complexities within the company is a prerequisite.
• Privately work in coalition through business associations at the local, state and federal level to find ways to raise the issue as a geographic and/or industry concern.
• Join amicus briefs to signal an understanding of the greater stakes. A historic number of companies have signed onto litigation supporting reproductive healthcare since 2022. 
  • In the case of Idaho v. United States where abortion care is considered a stabilizing medical treatment under the federal Emergency Medical Treatment and Labor Act (EMTALA), businesses argued that Idaho’s reproductive health care restrictions were negatively impacting the economy and business. Previously, a business amicus was also submitted in the Zurawski v. Texas case as well as a multi-industry response on the Alliance for Hippocratic Medicine v. FDA case. 
• Get updates from Don’t Ban Equality, a platform that enables companies to work with peers across the private sector on the workforce impact and economic costs of abortion restrictions. Companies can sign onto the platform and/or select to receive updates including monthly newsletters and quarterly calls. 

6. Reconsider political giving from this perspective. In a highly divisive political environment, the unmet need for companies to find ways to better align political influence with operational and workforce policies is harder and more necessary than ever. Abortion access is widely supported and also now legislated in every state. Steps companies can take include:

• Consider how well the company’s political contributions align with stated values, mission and policy priorities. Review and update criteria for making political contributions and test what giving preference to candidates and organizations that support abortion access, IVF, miscarriage care and reproductive health, overall, could look like.
• If reallocation is not possible, commit to educating recipients of political donations on how their positions on social issues harm the workforce, have demonstrable collateral damage and are not conducive to a robust business environment.

BSR’s Center for Business and Social Justice works with experts in reproductive health to provide actionable guidance to business. BSR members can contact the Center with inquiries.

Blog | Friday January 19, 2024

Seven Actions for Business in 2024 Post-Roe America

Preview

Since the fall of Roe v. Wade in June 2022, companies from the Fortune 1000 to small businesses have supported abortion access as part of workplace health, safety, and well-being—and as part of gender equity commitments. At a fundamental level, abortion access matters to business because it affects approximately half of the workforce (some 60 million women of reproductive age) and has significant economic impacts on a micro and macro level.

Currently, 21 states and the District of Columbia have enacted more than 80 new laws protecting abortion access while 14 states have made abortion illegal. However, bellwether ballot initiatives since Roe was overturned in seven states, including Ohio, Kansas, Kentucky, Montana and Michigan, affirm that the overwhelming majority want healthcare decisions to remain between patients and providers.

Restrictive public policies compound healthcare deserts in states that extend beyond reproductive care, create avoidable medical emergencies, and impose financial and travel burdens for those seeking abortion access.

Meanwhile, litigation in many states and courts continues to cause confusion alongside the introduction of policy proposals in the states seeking to restrict employers’ benefits. 

This ongoing public health crisis sets up companies as a firewall when it comes to enabling access to abortion—a form of healthcare that one in four women may need over the course of their careers. Employees are aware of this fact. According to 2023 research on Talent and Social Policies conducted by Morning Consult, on behalf of BSR:

• By a 2:1 margin, workers want to live in a state where abortion is legal and accessible.

• Nearly half of workers are concerned for themselves or their partner being criminally charged or going to prison for having an abortion in a state where it is illegal.

• More than a third of workers are concerned about having enough money for themselves or their partner to travel out of state for an abortion. 

Stories are coming out about the severe impact and consequences since the overturn of Roe and state abortion restrictions on women and their families. Nationally, the number of people who crossed state lines to obtain abortion care more than doubled.

In Texas, Kate Cox, a 31-year-old mother of two had to flee the state to obtain an abortion as a result of unsuccessful litigation to clarify medical exceptions. According to Reed Smith, the law firm that filed an amicus on behalf of businesses that operate in Texas: 

“This is why businesses will continue to struggle to recruit and retain talent [in Texas]. This is why pregnant women from other states are hesitant to travel to Texas for business meetings. This is why conferences are moving their events to other states. This is why doctors are leaving the state." 

What actions can companies take in this environment? 

1. Continue to Mitigate Harm on the Workforce 

Audit the availability of abortion care to ensure coverage under all circumstances within networks through medical plans where the company operates, including remote workers.

• Ensure that employees can go out of network, at no added cost if necessary, and that travel costs are covered in addition to access to paid sick days.

• Revisit practices to support pregnant employees who travel for work to states where abortion is illegal and may need to access emergency care. 

• Close the gap on abortion access for workers who may not be eligible for regular benefits, such as hourly workers, contractors, and populations within the workforce already facing barriers to healthcare and financial security.

• Strengthen reproductive health benefits to go beyond the minimum requirements of the Affordable Care Act when it comes to contraception, health screenings, and other prevention measures. 

• Communicate the benefits and other programs available to help workers access time-sensitive and confidential healthcare inclusive of reproductive healthcare as well as LGBTQ+ care.

The Pro Repro Playbook provides free guidance to companies on developing and implementing benefits to support the reproductive health of their employees.

2. Advocate 

At the national level, support codifying abortion access and let members of Congress know that employers oppose national bans. Employers can make the case to officeholders to support efforts to reduce barriers to reproductive healthcare as a matter of worker wellbeing as well as implications for regulatory authority, interstate travel, and commerce.

• Engage officeholders about the onerous impact on employers and the chilling effect that restrictions have on the state business climate. Case examples include Indiana, South Carolina, Ohio and North Carolina.

• Work in coalition with metro, state, and national business associations to counter the advancement of abortion restrictions by officeholders before proposals are advanced.

• Sign amicus briefs to signal an understanding of the greater stakes. Case in point, the pharmaceutical and biotech industry took a historic stance against a targeted effort to revoke access to an FDA-approved abortion medication given the potential to overturn the regulatory framework industries rely upon. Medication abortion accounts for more than half of all abortion care in the US and is also used to manage miscarriage. Cases are still pending that will determine medication access.

• Join Don’t Ban Equality, a platform that enables companies to work with industry peers across the private sector as well as other influential organizations on the workforce impact and economic costs of abortion restrictions. 

3. Align Political Contributions

Align—once and for all—public positions and political influence with operational and workforce policies. Abortion access is now legislated in every state, and a company’s public and internal commitments to worker health and well-being as well as gender equity may directly contradict political contributions and influence. This contradiction will increasingly become untenable for workers, customers, and other stakeholders. 

• Review and update the criterion for making political contributions and test what giving preference to candidates and organizations that support abortion access could look like. Be prepared to defend your position. 

• Measure internally how well the company’s (and any PAC) political contributions align with stated values and public policy priorities. Publicly report out metrics measuring this alignment, and approaches to reducing misalignment. 

• If reallocation is not possible, commit to educating recipients of political donations on how their positions on social issues harm the workforce and business environments. Appeal to them to reprioritize their agendas. 

4. Audit Corporate Matching and Workplace Giving 

Do not authorize corporate matching or workplace giving for anti-abortion organizations that infringe on reproductive health access. Consider criteria for organizations that receive corporate donations, including passive tools such as matching and payroll deduction.

5. Make Abortion Access Part of Event and Office Site Selection 

Some corporate travel planners and HR leaders are quietly working to address a growing set of risks to employees. Companies are enacting travel policies that restrict or are acknowledging the risks of hosting events in places where abortion is illegal or inaccessible. Increased restrictions are prompting new questions relevant to site selection, including access to care and treatment for workers facing urgent health crises, let alone new threats of invasive law enforcement action.

6. Minimize Data Collection in Products and Services 

The collection of user data by companies and tracking of users’ online activity about reproductive health creates significant risks to seekers and providers of healthcare services and unnecessary reputational risk for employers. Among the key actions companies can take include:

• Undertake human rights due diligence to identify risks to sexual and reproductive health that may be associated with the development or use of new or existing platforms, devices, products / product features. Companies need to consider state restrictions on reproductive health when deciding on the location of offices, data centers, or other assets that might give a state jurisdiction over the user data. 

• Apply best practice privacy principles, such as data minimization, purpose limitations, purpose-based data retention, and user transparency and control. 

• Deploy end-to-end encryption on private messaging services. 

• Set default privacy settings to the highest level of privacy protection. Privacy protections should be based on an opt-out model, not an opt-in model. 

7. Support Civic Engagement through Voting and Elections 

A touchstone of American Democracy is safe and fair elections as well as robust engagement by all communities nationwide.

• Provide paid time off to vote even if it is not required in all states where the company operates. Workers shouldn’t have to choose between earning a paycheck and voting. 

• Recruit and recognize employees serving as poll workers and poll monitors as part of workplace volunteerism. This is fundamental to how democracy functions in America. 

• Engage with officeholders to express support for elections through investment and reform to meet administrative challenges.

The fall of Roe added to an already tumultuous landscape, leaving employers to navigate an increasingly complex patchwork of new and proposed restrictions. The costs of insufficient action become more tangible while the impact of this ongoing public health crisis accelerates.

BSR’s Center for Business and Social Justice works with a network of civil society partners and experts in reproductive health to provide actionable guidance to business. All BSR members can contact the Center for specific inquiries.