Sexual orientation and gender reassignment discrimination | Mayo Wynne Baxter
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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 0800 84 94 101.

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