Discrimination and Sexual Orientation

Are you an employer facing a sexual orientation discrimination claim? Do you need advice as to how to avoid potential claims?

The law protects individuals from discrimination on the grounds of sexual orientation. This is set out in the Employment Equality (Sexual Orientation) Regulations 2003.

An employer may be liable for the discriminatory act of an employee, carried out in the course of the employment, whether or not those actions were done with the employer's knowledge or approval.

For example, if one employee is being treated less favourably by another because of her sexual orientation then the offender's employer may well be liable for failing to ensure that the treatment did not take place in the workplace.

The Regulations

The Regulations protect job applicants, employees and potentially ex-employees. There is no qualifying period of employment.

The Regulations apply to all employees whatever the size of the employer and whether in the public or private sector.

Types of sexual orientation discrimination

The Regulations make unlawful certain types of discriminatory treatment: -

1. Direct discrimination

Direct discrimination involves conduct which consists of less favourable treatment than that which would be afforded to other persons of a different sexual orientation.

2. Indirect discrimination

Indirect discrimination may occur where a condition is applied which would put a person of the same sexual orientation as the complainant at a particular disadvantage when compared with other persons or which puts that individual at a disadvantage. An employer may argue in certain circumstances that indirect discrimination can be justified provided it is a proportionate means of achieving a legitimate aim.

3. Victimisation

Victimisation may take place under the Regulations where an individual is treated less favourably because of action they have taken under or in connection with the Regulations.

4. Harassment

Under the Regulations, harassment is unwanted conduct on the grounds of sexual orientation that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

5. Perception

Less favourable treatment and harassment under the Regulations can include discrimination based on a perception of another's belief whether that is right or wrong and will also cover discrimination against an individual by reason of their association with persons of a particular sexual orientation.

The definition of sexual orientation

Regulation 2(1) defines sexual orientation as meaning a sexual orientation towards persons of the same sex, and/or persons of the opposite sex. The Regulations therefore cover gay men, lesbians, bisexuals and heterosexuals.

An Employer's liability for discrimination

An employer may be liable for the discriminatory act of an employee, carried out in the course of the employment, whether or not those actions were done with the employer's knowledge or approval.

For example, if one employee is being treated less favourably by another because of her sexual orientation then the offender's employer may well be liable for failing to ensure that the treatment did not take place in the workplace.

Discrimination in practice

There are a number of contexts in which the forms of discrimination discussed above can affect employees in the workplace: -

· Recruitment
· Advertisements
· Arrangements for offering employment
· Terms on which employment is offered
· Bullying and harassment
· Promotion, transfer and training
· Dismissal
· "Any other detriment"
· Post employment discrimination

Complaints to an Employment Tribunal

If an employee feels they are being discriminated against on grounds of their sexual orientation by their employer then that employee can make a claim to an Employment Tribunal.

If a Tribunal finds discrimination has taken place then an award of damages may be made. This may include an award for loss of earnings and/or injury to feelings.

In addition a Tribunal can make a declaration regarding the rights of the complainant and that the discrimination should cease.

 

If you have suffered from discrimination in the workplace click here or if you are an employer facing legal action or needing advice click here

Types of Discrimination

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