Sexual Orientation Discrimination at Work

Peninsula Team

June 25 2018

The Employment Equality Acts 1998-2015 (the Act) protects employees against unequal treatment and discrimination in the workplace. Under the Act, employers may be held vicariously liable for the discriminatory behaviour of their employees. It is vital therefore that employers are familiar with the nine discriminatory grounds as set out in the Act. The nine grounds The Act defines discrimination as one person being treated less favourably than another based on any of the nine grounds as set out below: -

  • gender: means man, woman or transsexual
  • civil status: meaning single, married, separated, divorced, widowed people, civil partners, and former civil partners
  • family status: meaning the parent of a person under 18 years or the primary carer or parent of a person with a disability
  • sexual orientation: includes gay, lesbian, bisexual and heterosexual
  • religion: means religious belief, background, outlook or none
  • age: so long as you are over the legal school-leaving age (16 years of age)
  • disability: includes people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions
  • race: includes race, skin colour, nationality or ethnic origin
  • membership of the Traveller community.

If an employee can establish that they have been treated less favourably in the workplace based on one of the nine grounds, the employer will be held vicariously liable for the discriminatory behaviour of the offending employee. A successful claim for discrimination by an employee under the Act can result in serious financial and reputational damage to the employer’s business. The sexual orientation ground There are significant risks and costs to employers that fail to ensure that their workplace is inclusive and respectful of LGBTQ employees. Some examples of unfair treatment suffered by LGBTQ employees include: -

  • derogatory remarks relating to sexual orientation and or gender
  • bullying and abuse relating to sexual orientation and or gender
  • being “outed” in the workplace without consent.

Forms of discrimination Employers also need to be aware that discrimination can manifest itself in 6 different ways: -

  • direct
  • indirect
  • victimisation
  • harassment
  • by association
  • imputation

Employers need to take all six forms into consideration when assessing the behaviour of their employees and determining if discrimination has, or is, occurring in their workplace. All six forms of discrimination carry equal weight for the purposes of a claim for discrimination by an employee. Discrimination by association In the case of Marron –v- Board of Management St Paul’s National School (DEC-E2015-121) a primary school was ordered to compensate a teacher who had been discriminated against on the grounds of her association to her gay son. The school principal commented that the complainant’s son “had spent an afternoon shopping for clothes and that a normal boy would not do this”. The Equality Tribunal ruled that this amounted to discrimination by association on the grounds of sexual orientation and that the employee had been treated less favourably than another employee would have been in a comparable situation. To find out how to safeguard your business against discrimination claims call our 24-hour advice line on 0818 923 923.

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