Sexual orientation and
gender reassignment
discrimination
Sexual orientation is one of the (nine) protected characteristics
set out in the Equality Act 2010 (EqA) which protects a wide
range of individuals (not just employees) from discrimination,
harassment and victimisation on the grounds of sexual
orientation.
Gender reassignment is also a protected
characteristic meaning transsexuals, and
those who are considering transitioning,
are also protected from discrimination.
Although intersex individuals (who have
the biological characteristics of both
sexes so may be neither clearly male nor
female) are not specifically protected,
the EqA does have the potential to
assist those who are being subjected to
detrimental treatment as a result of their
gender which could include those who
are intersex.
Direct discrimination occurs where,
because of sexual orientation or gender
reassignment (or any other protected
characteristic for that matter), a person is
treated less favourably than others. It
is important to remember that the less
favourable treatment can be ‘because of’
sexual orientation regardless as to the
actual sexual orientation of the victim.
Take for example the case of a worker
who is not invited to drinks after work
because she is perceived to be gay
because she doesn’t have a husband
or boyfriend. The employee’s actual
sexual orientation is irrelevant as she has
been treated less favourable because
of a perception that relates to sexual
orientation.
Consider also the job applicant who isn’t
offered the role because he happens to
mention at interviews having recently
attended a friend’s civil partnership
ceremony. He has been discriminated
because of the sexual orientation of
those he associates with which would
also amount to direct sexual orientation
discrimination.
Thankfully direct discrimination seems
to be less common nowadays but it
would be naive to assume that it never
occurs so organisations should ensure
they take proactive steps to ensure their
workforce know that (so called) banter is
unacceptable even when said in jest and
it should go without saying that a zero
tolerance approach should be taken to
any employee (or client/customer) who
engages in such conduct.
Organisations also have an obligation to
avoid discrimination in the application
of their polies and procedures
which includes taking steps to avoid
making discriminatory assumptions
around sexual orientation and gender
reassignment.
In 2006 a Tribunal determining the case
of Martin v Parkam Foods Ltd criticised
the employer’s level of investigation
and made several comments about its
manner of dealing with homophobia in
the workplace. The Tribunal commented:
“The respondent did not deal with the
claimant’s grievances as forcefully as it
might have done had they related not
to homophobia but to other issues……
because of the respondent’s in-built
prejudice, even though they may
not recognise it themselves. It is not
uncommon to find such a prejudice
in a person who grew up when
homosexuality was regarded as socially
unacceptable if not a crime and it is
a prejudice which is difficult for some
people to overcome. We conclude that
such in-built prejudice prevented the
respondent from being as objective and
fair as it might otherwise have been if the
issue to be resolved was a different type
of discrimination.”
Indirect discrimination occurs when
an employer has criteria, policies,
employment rules or any other practices
that are ostensibly neutral but that have
the effect of disadvantaging those of a
particular sexual orientation (or those
undergoing or who have undergone
gender reassignment) although indirect
discrimination can, in some cases, be
objectively justified.
By way of an example, if an employer
has a policy entitling staff that are absent
from work while recovering from surgery
to full pay but exempts those who have
had elective cosmetic surgery from
that entitlement, that employer may be
indirectly discriminating against those
who undergo gender reassignment
should that be classed surgery be
classified by the employer as elective.
Incidentally this policy would most
likely be indirectly discriminatory on
the grounds of sex having regard to the
higher numbers of women that undergo
cosmetic surgery than men.
Gender reassignment or sexual
orientation harassment is unwanted
conduct related to gender reassignment
or sexual orientation where that conduct
has the purpose or effect of violating
dignity or creating an intimidating,
hostile, degrading, humiliating or
offensive environment.
A single incident can be enough to
constitute harassment and the fact that
an employee has put up with conduct for
years does not mean that it cannot be
unwanted.
A worker who is subjected to
homophobic derogatory comments
would also be entitled to bring a claim of
direct sexual orientation discrimination
and harassment whether he is gay or not
and he could do so even if those taunting
him try to excuse their behaviour by
claiming that they knew he wasn’t gay.
Similarly if a heterosexual employee
is offended by jokes made at the
expense of all or some of the LGBT
community, that employee may bring a
claim of sexual orientation harassment
notwithstanding they are not LGBT
themselves.
Discrimination should not be tolerated
in the workplace and failing to act
appropriately when allegations of
discrimination are raised can prove costly
for both the individual in question and the
organisation who are usually vicariously
liable for the acts of their employees.
If you would like advice on any of the
matters raised in this article please
contact Samantha Dickinson or Martin
Williams on (net number).
By Sam Dickinson
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