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Workplace Sexual Orientation

Discrimination on the basis of sexual orientation in employment in illegal. Discrimination is permitted in a few limited circumstances, but these are uncommon.

 

What does the term ‘sexual orientation’ means?

The term’sexual orientation’ as used in the Act refers to individuals who are gay, heterosexual, bisexual, or lesbian.

 

What is discrimination based on sexual orientation?

Discrimination on the basis of sexual orientation occurs when you are treated unequally based on your sexual orientation, your perceived orientation, or the orientation of someone with whom you associate. According to the Act, sexual orientation is a ‘protected characteristic,’ and thus discrimination on this basis is illegal.

Discrimination based on sexual orientation can manifest itself in one of four ways:

  • Discrimination on an explicit basis

  • Discrimination in an indirect manner

  • Harassment

  • Victimisation

Such discrimination may occur during the interview process, in the terms of employment offered (or whether employment is offered at all), in promotion and transfer opportunities, and when an employee is terminated or otherwise harmed. As a result, the law is intended to safeguard employees and workers of all orientations in all facets of employment. Additionally, you are not required to have been employed for a specified period of time in order to file a claim.

 

Who is a party to the Act?

All employees (fixed and indefinite term), job applicants, trainees, contract workers, office holders (including company directors and partners), those on secondment, and the self-employed are covered by the Act. The Act regulates all aspects of employment, including recruitment, selection, and promotion, training, benefit administration, retirement, and occupational pensions.

 

Discrimination on an explicit basis

This is the most prevalent type and refers to the less favorable treatment of others based on their sexual orientation. Direct discrimination also encompasses ‘associative discrimination,’ in which an individual is discriminated against for associating with someone who has a particular sexual orientation, as well as ‘discrimination by perception,’ which is the unfair treatment of someone who is perceived to have a particular sexual orientation.

You’d need to examine how an employer treats employees of a particular orientation in comparison to other employees. Direct discrimination may occur when a lesbian is denied a promotion. Other examples include harassing someone because he has a gay son or refusing to hire a woman based on an incorrect belief that she is bisexual.

The justification defense is not available in cases of direct discrimination.

 

Discrimination in an indirect manner

This is the application of a rule or practice that appears to apply equally to people of different sexual orientations but disadvantages those of a particular sexual orientation.

Indirect discrimination occurs when an individual works as a train driver and the train company provides free or discounted train travel to the employee and spouse, but the policy was written decades ago and only recognizes marriage between men and women. While the policy is blanket in nature and applies to all individuals regardless of sexual orientation, it disadvantages members of the LGBT+ community, and thus if the company fails to extend the policy to them and their spouse or civil partner, a discrimination claim may arise.

Indirect discrimination may be justified objectively; the burden is on the employer to demonstrate that the discrimination is a proportionate means of achieving a legitimate objective.

 

Harassment

Harassment is defined as subjecting someone to unwanted conduct that violates their dignity or contributes to the creation of an intimidating, hostile, degrading, humiliating, or offensive environment. It makes no difference whether the harassment is deliberate or accidental. Conduct shall be deemed to have the effect of violating someone’s dignity or creating an intimidating environment only if it can reasonably be interpreted as having that effect in all of the circumstances, including the victim’s perception.

As a result, the definition of harassment is sufficiently broad to encompass the majority of forms of harassment, including abusive language, excessive monitoring of work, and excessive criticism of another person’s work. However, the concept of the victim’s’reasonability’ may make it more difficult to win such cases in some instances.

Harassment does not have to be directed at a specific individual or group of individuals; it can be directed at the firm’s overall culture. This could include sharing and tolerating homophobic jokes in the office, as well as the use of derogatory homophobic terms.

Additionally, the Equality Act holds employers liable for harassment of their employees by third parties, which includes clients, customers, patients, and suppliers. Thus, if your employer knew or should have known that you had been harassed in the course of your employment on at least two previous occasions by a third party (not necessarily the same third party or same form of harassment on each occasion) and failed to take reasonable steps to prevent it from happening again, he may be liable under the Equality Act.

 

Victimisation

This occurs when you are treated less favorably as a result of filing, attempting to file, assisting another in filing, or being assumed to have filed a complaint or grievance alleging discrimination on the basis of sexual orientation under the Act. There is no longer any reason to compare your treatment to that of an employee who has not committed one of the aforementioned offenses.

 

Who is liable for violations of the Act?

Generally, the employer and/or any other employee found to have discriminated on the basis of sexual orientation bear liability.

Employers will be liable for employees’ discriminatory acts committed while on the job. This concept is referred to as vicarious liability. As mentioned previously, in certain circumstances, the employer may also be held liable for the acts of third parties.

When the alleged acts are committed by another employee, it is usually prudent to file an employment tribunal complaint against both the employee and the employer.

Employers have a defense to discrimination claims based on vicarious liability and third-party harassment if they can demonstrate that they took all reasonably practicable steps to avoid the discrimination. Employers rarely prevail on this defense, but if they do, the claim against the individual employee may continue in the case of vicarious liability.