The law makes it abundantly clear that no one should be discriminated against on the basis of their sexual orientation or ‘perceived’ sexual orientation.
What is sexual orientation exactly? According to the Equality Act, it is defined as being sexually attracted to:
Individuals who share your sexual orientation – you are lesbian or gay.
You are heterosexual if you are a person of the opposite sex.
You are bisexual if you are a person of both sexes.
Perceived sexual orientation refers to the belief that you have a particular sexual orientation despite the fact that you do not.
These two examples illustrate discrimination based on sexual orientation in two distinct situations:
You are denied admission to a lesbian bar due to your heterosexuality. This is considered discrimination based on sexual orientation and is illegal.
You are asked to exit the bus by the bus driver because you are holding hands with your gay partner. However, other heterosexual couples on the bus who are also holding hands are permitted to remain. This is illegal discrimination against you on the basis of your sexual orientation.
Discrimination Against Sexual Orientation in the Workplace
Under the 2010 Equality Act, it is illegal for an employer to discriminate against you, directly or indirectly, on the basis of your sexual orientation or perceived sexual orientation.
Additionally, you are protected against associational discrimination. This occurs when you are treated differently on the basis of the sexual orientation of someone you know or are associated with, such as friends or family, rather than your own sexual orientation.
Victimization, harassment, and bullying on the job are also illegal.
The law prohibiting sexual orientation discrimination in the workplace applies to all aspects of employment, from recruitment to termination. This includes training opportunities, terms and conditions of employment, recruitment, compensation and benefits, opportunities for transfer or promotion, and redundancy and dismissal.
It is not required to disclose your sexual orientation to your employer or prospective employer at any point during the employment or hiring process. Certain employers may include this question in the questionnaire or may request additional information from you for monitoring purposes or as part of an equal opportunity survey. You are legally entitled to decline to answer the question. You should provide any response if it is in your best interest.
Recognize When It Is And When It Isn’t Sexual Orientation Discrimination
Direct discrimination occurs when an employer treats you unfavorably based on your sexual orientation, perceived sexual orientation, or sexual orientation by association.
For instance, if an employer allows a male employee to take annual leave to accompany his pregnant wife to antenatal classes but denies the same privilege to another female employee whose same-sex partner is pregnant, this is almost certainly direct discrimination based on sexual orientation.
Employing you in a school would be an example of discrimination by association, as it is well known that your brother is gay.
Perceived discrimination might include withholding your promotion because your employer suspects you are a lesbian.
If there is a policy, practice, or rule in the workplace that you are unlikely to be able to follow or that disadvantages you as a result of your sexual orientation, this is considered indirect discrimination. This is illegal regardless of whether it is done intentionally or accidentally.
For instance, it is indirect discrimination if your employer has a policy that provides free club memberships to all employees’ husbands or wives but not to same-sex partners.
Another example is if your company hosts a business conference in a country where homosexuality is illegal; this may be considered indirect discrimination if there is no compelling reason for the conference to be held in that country. If your employer can justify the country choice and demonstrate that it is critical to the company’s operations, it may not be considered discrimination.
Victimization and harassment
Harassment can take the form of intentional or unintentional bullying, teasing, or creating an environment conducive to homophobic jokes.
Victimization occurs when you are treated unfavorably as a result of making a complaint or assisting another in filing a claim against sexual orientation discrimination, testifying as a witness in court, or advocating for your rights in some other way.
You are protected from harassment and victimization not only at work, but also in any work-related setting, such as an office party or a social event held outside of work.
Genuine job requirements
Occasionally, an employer’s actions may appear to be discriminatory against employees based on their sexual orientation. If, on the other hand, the employer has compelling reasons for their actions and can demonstrate that they are absolutely necessary for their business, this is referred to as a ‘genuine occupational requirement.’ In this instance, the employer is fully compliant with the law.
For instance, if a business is engaged in promoting and advising on gay or lesbian rights, it is entirely justified in seeking to hire a gay or lesbian chief executive, who would serve as the company’s face. Sexual orientation is a genuine occupational requirement in this case. If you are denied employment due to your sexual orientation, you will be unable to file a claim for discrimination.