Sexual Orientation Discrimination
This week is Northern Ireland Anti-Homophobia Week and runs from 1st to 7th November. It is a good opportunity to remind you about the law in relation discrimination in employment on the grounds of sexual orientation.
The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 came into force in Northern Ireland in December 2003 and made it unlawful for an employer to discriminate on grounds of sexual orientation in employment. It is unlawful to discriminate against people because they are homosexual, bisexual or heterosexual. This means that people are protected whatever their sexual orientation.
The legislation prohibits four main types of discrimination. Direct discrimination is where someone is treated or would be treated less favourably than others in the same or similar circumstances and the reason for that treatment is sexual orientation. Direct discrimination on the grounds of sexual orientation also includes discrimination based on the employer's perception of the worker's sexual orientation, whether the employer's perception is right or wrong. This means that a person can bring a claim of discrimination on the grounds of sexual orientation even if it was based on incorrect assumptions by their employer about their sexual orientation. Direct discrimination on the grounds of sexual orientation also covers discrimination against a person by reason of the sexual orientation of someone else with whom that person is associated.
Indirect discrimination exists where a provision, criterion or practice is applied which puts people of a particular sexual orientation at a disadvantage and which cannot be shown to be justified, ie, a proportionate means of achieving a legitimate aim. Indirect discrimination is often missed because it is difficult to detect. For example, a brewery seeks a couple to run a pub and expresses a preference that they be married. The preference for a married couple would be a provision, criterion or practice which, although not explicitly discriminatory, would put gay couples at a disadvantage as they cannot marry. The brewery would have to show that the requirement pursued a legitimate aim and that it was proportionate to apply it in this instance.
Harassment is unwanted conduct which has the purpose or effect of violating an individual´s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Harassment includes a wide range of offensive behaviour. It may be intentional bullying, which is obvious or violent, but it can also be unintentional, subtle and insidious. It may involve nicknames, teasing, name-calling, mimicking or other behaviour which is not with malicious intent but which causes offence. For example, a male worker who has a same-sex partner is continually referred to by female nicknames which he finds humiliating and distressing.
Victimisation means treating someone less favourably than others because they have complained of discrimination on the grounds of sexual orientation or assisted someone else to do so.
It may be that the worker is being discriminated against by colleagues, rather than the employer. However, the employer is legally responsible for any discriminatory act carried out by one employee against another where this is done in the course of employment. The employer may be able to defend a case if they can show that they took all reasonably practicable steps to prevent the discriminatory act from happening.
Further information on anti-discrimination laws is available from your local CAB or from the Equality Commission on 028 90 890 890 or from their website at www.equalityni.org. The Rainbow Project is organising a number of events as part of NI Anti-Homophobic Week and runs a support and advocacy service for those experiencing problems at work because of their sexual orientation. The Rainbow Project can be contacted on 028 9031 9030 or visit their website at www.rainbow-project.org.
Siobhan Harding is an Information and Policy Officer with Citizens Advice