Sexual Orientation Discrimination

The law clearly states that no individual should be discriminated against because of their sexual orientation or their ‘perceived’ sexual orientation.

What exactly is sexual orientation? The Equality Act defines it as being sexually attracted to:

  • Individuals of the same sex as you – you are lesbian or gay
  • Individuals of the opposite sex – you are heterosexual
  • Individuals of both sexes – you are bisexual

Perceived sexual orientation is when it is believed you are of a particular sexual orientation, even when you are not.

These two examples demonstrate sexual orientation discrimination in different circumstances:

You are refused entry into a lesbian bar because you are heterosexual. This is counted as sexual orientation discrimination and is considered illegal.

A bus driver asks you to get off the bus because you are holding hands with your gay partner. However, other heterosexual couples who are also holding hands in the bus are allowed to stay on. This is unlawful discrimination because of your sexual orientation.

Sexual Orientation Discrimination In The Workplace

Under the Equality Law 2010, it’s against the law to be discriminated against by an employer whether directly or indirectly due to your sexual orientation or perceived sexual orientation.
You are also protected against discrimination by association. This is when you are treated differently because of the sexual orientation of a person you happen to know or are associated with, such as any friends or family and not because of your own sexual orientation.

Victimisation, harassment and bullying at work are also against the law.

The sexual orientation discrimination law at work covers all aspects of employment from recruitment to dismissal. This includes training opportunities, terms and conditions, recruitment, pay and benefits, transfer or promotion opportunities, redundancy ad dismissal.

At no time during your employment or hiring process is it mandatory to disclose your sexual orientation to your employer or prospective employer. Some employers may include this query in the questionnaire or they may ask you details for monitoring purposes or for as part of an equal opportunities survey. You are within your legal rights not to answer the question. You should any answer if it works to your advantage to do so.

Understanding When It Is Sexual Orientation Discrimination And When It Isn’t

Direct discrimination –

If your employer treats you unfavourably because of your sexual orientation, perceived sexual orientation or sexual orientation by association, it is considered direct discrimination.

For example if an employer grants a male employee annual leave to accompany his pregnant wife to antenatal classes but refuses to grant the same privilege to another female employee whose same-sex partner is pregnant, that is likely to be direct discrimination by reason of sexual orientation.

An example of discrimination by association would be refusing to employ you in a school because it is well known that your brother is gay.

An example of perceived discrimination would be holding back your promotion because your employer is suspects that you are a lesbian.

Indirect discrimination –

If there is a policy, practice or rule in the workplace that you are not likely to be able to meet or which puts you at a disadvantage because of your sexual orientation, it is classed as indirect discrimination. This is unlawful whether it is done intentionally or unintentionally.

For example, it is indirect discrimination if your employer has a policy in place that offers free club memberships to all husbands or wives of their employees but the same perk is not extended to same-sex partners.

Another example could be if your company organises a business conference in a country where homosexuality is considered illegal, it may be counted as indirect discrimination if there is no compelling reason for holding the conference in that particular country. If your employer can justify the choice of country and show that it is crucial for the company’s business, then it may not counted as discrimination.

Harassment and victimisation –

Harassment would include intentional as well as unintentional bullying, teasing or creating an environment that encourages homophobic jokes.

Victimisation involves treating you unfavourably because you complained or helped somebody else file a claim against sexual orientation discrimination, gave evidence as a witness in court or stood up for your rights some other way.

You are protected against harassment and victimisation not just in the workplace but also in any work-related setting such as an office party or a social event away from the workplace.

Genuine occupational requirements –

Sometimes, an employer’s actions may appear to be discriminatory against sexual orientation. However, if the employer has compelling reasons for their actions and can show that it is absolutely necessary for their business, then it is known as ‘genuine occupational requirement’. In this case, the employer is completely within the law.

For example, if the company is involved in promoting and advising on gay or lesbian rights, they are fully justified in wanting to hire a gay or a lesbian chief executive, who would in effect be the face of the company. In this case, the sexual orientation is a genuine occupational requirement. Under such circumstances, if you were denied the job opportunity, you would not be able to file a claim for sexual orientation discrimination.

What To Do If You Are Being Discriminated Against

You think you are being discriminated against because of your sexual orientation. What should you do next?

It is always best to first bring it to the notice of your employer or personnel officer.

If the matter cannot be resolved internally to your satisfaction, you should follow the grievance procedure that would be laid down in your contract of employment. If you have written record that can prove harassment, victimisation or any form of discrimination, keep these to show your employer.

Should this avenue also prove futile, you can file a case with an Industrial Tribunal.