Workplace discrimination against LGBT+ employees
9 June 2020 by Priya Patel
It’s Pride Month. A time to come together to celebrate the LGBT+ community and the significant progress we’ve made on the long road towards equality. There have been major landmark cases which have shaped employment law involving the LGBT+ community.
The ‘+’ within the acronym has continued to evolve; it stands as a denotation of everything on the gender and sexuality spectrum.
To mark Pride Month, we outline here some insights into how to address discrimination in this field;
How to make your workplace more LGBT friendly
To promote an LGBT+ safe and welcoming environment, it is essential that employers establish up-to-date policies within their employee handbooks and/or their contracts such as; equality, diversity inclusion, and anti-discrimination policies. Employers need to take LGBT+ discrimination seriously and to ensure that all employees are able to identify how certain behaviours can be discriminatory, where to go and what to do if discrimination is suffered. Employers should also make clear to all employees what sanctions there might be in cases where discrimination is found to have been suffered.
Employers are encouraged to establish a clear mission statement for supporting LGBT+ in the workplace; by communicating to all employees through education and diversity training, inclusion policies, and strategies for supporting LGBT+ and transgender employees.
Employers should drive initiatives to promote Equality Champions generally. With specific regard to LGBT+ employees, employers should identify any applicable support networks they may turn to. Further, by supporting the local LGBT+ community, employers can be found to be encouraging awareness by providing information to employees about local events and groups i.e. National Coming Out Day and Pride parties.
The same can have a really positive impact on the way that employers are perceived outside the undertaking and benefits can be realised when prospective employees apply for jobs because they know or have heard that an employer has the formula right.
What is the Equality Act 2010 and the Gender Recognition Act 2004 and how do they protect Lesbian, Gay, Bisexual, and Transgender employees?
The Equality Act 2010 (EqA 2010) provides protection from workplace discrimination in respect of certain ‘protected characteristics’:-
- gender reassignment;
- marriage or civil partnership;
- pregnancy and maternity;
- religion or ‘belief’;
- sex; and
- sexual orientation (‘protected characteristics’).
It is unlawful under the EqA 2010 for any employer to discriminate against employees because of one or more of the said ‘protected characteristics’.
One does not actually need to possess a specific characteristic to be discriminated against. A person can be discriminated against by association with another who does possess a protected characteristic.
Discrimination against transgender people in the workplace appears to remain a significant issue. The Gender Recognition Act 2004 (GRA) makes provision for people who have or have had gender dysphoria to have the gender by which they live legally recognised. Gender dysphoria is where a person experiences discomfort or distress because there is a mismatch between their biological sex and gender identity. Since the GRA has come into force, transgender individuals have been able to obtain a gender recognition certificate by applying to the Gender Recognition Panel, which is a tribunal.
The EqA 2010 aims to improve equal job opportunities and fairness for all employees and workers (and those who are prospective). Every organisation should have policies in place to promote fairness across the board and, just as importantly, to prevent discrimination. The EqA 2010 also includes gender reassignment within the range of ‘protected characteristics’ and therefore protection applies to people proposing to undergo, are undergoing, or have undergone a process, or part of a process, to reassign their sex by changing their gender.
What are the types of discrimination?
There are 4 discernible categories for discrimination:
- Direct Discrimination: when an employee is treated unfairly because of a ‘protected characteristic’, such as sex or race. As an example, someone is not offered a promotion because they are a woman and the job is offered to a less qualified man.
- Indirect discrimination: Indirect discrimination is concerned with acts, decisions, or policies (broadly speaking) which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic. Where such a policy disadvantages an individual possessing that characteristic, it will amount to indirect discrimination, unless it can be objectively justified.
- Harassment: this is defined as ‘unwanted conduct’ related to a protected characteristic with the sole purpose of violating an employee’s dignity or creating an intimidating, hostile, and offensive environment for them.
- Victimisation: occurs when a person (A) subjects another person (B) to a detriment because either:
- B has done a protected act.
- A believes that B has done, or may do, a protected act.
A ‘protected act’ could be an employee asserting a right under the EqA 2010 or bringing proceedings under it for redress against their employer or someone employed by their employer.
What should someone do if they’re being harassed or bullied at work because of their sexual orientation or gender identity?
The EqA 2010 protects employees from harassment or victimisation because of their sexuality or perceived sexuality and/or gender identity. Protection is available whether or not the employee is intentionally or unintentionally treated this way, and in circumstances where an employee is surrounded by a general culture of disrespect.
Employers are also responsible for any harassment meted out by an employee’s colleagues, if the discriminatory behaviour happens at:
- at work-related events/business trips;
- or at social events organised by the employer.
We recommend that employees approach their line managers or their Human Resources departments before proceeding with instituting formal procedures in the first instance. Sometimes, discriminatory behaviour can be down to lack of education about its form(s) and an amicable resolution can be found to see the parties move forward amicably, utilising various alternative dispute resolution techniques.
If an employee is invited to an informal meeting, they can ask a work colleague or trade union representative (if applicable) to attend with them.
In the event that no resolution to the problem can be found on the above referred to informal basis, a next step would be for employees to follow their employer’s grievance procedures. These procedures can normally be found in employers’ company handbooks; they can be obtained by contacting human resources; the same may be on a firm’s intranet site, or maybe contained within, or annexed to, a written contract of employment.
Grievance procedures should outline relevant steps to enable a formal written complaint to be made. Once a grievance has been submitted employers are obliged to invite employees to a meeting to go through the facts and to try to resolve the issue(s). In the event that an outcome is still found to be unsatisfactory by an employee the decision made can be appealed.
How can a Solicitor help someone who has been discriminated against because of their gender identity or sexual orientation?
A specialist Employment Law Solicitor will be able to provide employees with proper advice designed to identify and/or endorse that actionable discrimination has happened.
There are some tight time frames within which a claim must be brought and the date on which any discriminatory acts and continuing examples of it will need to be carefully referenced.
Discrimination law is always changing. A solicitor may also consider recent case law; to consider whether seeking redress and challenging the boundaries of the law is viable and will be able to give employees an idea of what might be awardable by way of damages on a winning case. A Solicitor will also explain the key steps to take in order to follow the grievance procedure correctly and may help employees to draft a comprehensive grievance letter and advise in relation to any response(s) received to a submitted grievance.
Why is it important not to make assumptions about others in the workplace, specifically members of the LGBT+ community?
Stereotyping in the workplace involves making assumptions about people based on their physical and perceived characteristics. We all have and have experienced, to varying degrees, unconscious biases, which can also be based on stereotypes and subconscious prejudices. Unconscious bias occurs when people favour others who look like them and/or share their values. Where unconscious bias is against ‘protected characteristics’, it can be found to be discriminatory.
Bias in the workplace can profoundly impact recruitment decisions, employee development, and can prejudice diversity and retention rates.
Employees can strive to eliminate the negative effects of making stereotypes and treat their colleagues with respect by being more aware of others and being educated as to how various forms of discrimination can arise.
Our Family Law team are able to support the LGBTQIA community with Family Law matters – find out more here.