Sexual orientation discrimination claims

Sexual Orientation discrimination under the Equality Act

Direct  discrimination: is where:

1. 'A' treats a gay man, lesbian, bisexual or heterosexual person (B) less favourably;
2. The treatment is on grounds of sexual orientation; and  someone of a     different sexual orientation was or would be treated more favourably and 
3. The treatment has led to a disadvantage, e.g. being dismissed or not appointed to a post or being denied a benefit.

Note

• The treatment may be based on a perception that B is gay; this would still be discrimination - B does not have to disclose whether he or she is in fact gay.
• The treatment must be because of sexual orientation.  It is not enough that a person is gay and is treated less favourably; there must be a direct causal link between the sexual orientation and the treatment;
• Sexual orientation includes orientation to someone of the same sex, or a different sex or both;
• The less favourable treatment involves comparing B's situation with how a person of a different sexual orientation has been or would be treated;
• The treatment does not have to be because of B's sexual orientation; it may be the sexual orientation of another person with whom B is associated, e.g. her son, or because B refuses to discriminate on grounds of sexual orientation, against another worker;
• Direct discrimination cannot be justified and will be unlawful unless an employer can rely on one of the very limited defences set out in the Act.   

Examples

• Stereotyping,  i.e. making assumptions about how gay men behave, for example not employing a gay man at a child care centre because of an assumption that the safety of children will be compromised;
• Appointing or promoting a person because of their sexual orientation  whether it be because of a conscious or unconscious preference or prejudice.

The question to ask is 'how would I have been treated if I was not gay.  Would I have been appointed, promoted, received a higher bonus? Was the reason for the treatment sexual orientation?

Indirect sex discrimination: This occurs where B is disadvantaged because of a provision, criteria or practice which particularly disadvantages people of B's sexual orientation compared to others of a different sexual orientation. It will not be unlawful if the employer can show that the provision, criteria or practice  is a proportionate means of achieving a legitimate aim.

For example:

•    Preferring job applicants with children if it can be shown that gay people are less likely to have children.

Victimisation: It is unlawful to treat a worker unfavourably because s/he has complained of sexual orientation discrimination, brought a claim or been a witness for a complainant.

Harassment: It is unlawful to subject a worker to unwanted conduct related to sexual orientation which (when viewed reasonably) causes  that worker offence.  See Harassment.

The LD Employment and Discrimination team  has acted for a gay man who was not selected for promotion and was then to be made redundant. With assistance from the team, he negotiated an alternative position.