As an employer, your workforce will include employees of all sexualities. You must never treat your staff differently due to their sexual orientation.
Failure to stop this form of discrimination, as well as all other forms can lead to claims being made against you to the Workplace Relations Commission.
In this guide, we'll discuss what sexual orientation discrimination is, its different forms and how to manage it in your workplace.
What is sexual orientation discrimination?
Sexual orientation discrimination is when someone suffers less favourable treatment because of their different sexual orientation. This includes the same sex, opposite sex, or both (bisexual people).
Unfortunately, some people hold the belief that one sexual orientation or sexual behaviour is superior to others.
What is workplace sexual orientation discrimination?
Sexual orientation discrimination in work is when an employee is treated unfairly due to their sexual preference. This treatment should be avoided at all times.
Treating an employee unfairly due to a certain sexual orientation may lead to claims being raised against you. It's important you understand how the law protects against this behaviour.
How does the law protect against sexual orientation discrimination?
There is a law in place to protect employees from being treated differently unlawfully. Under the Employment Equality Acts 1998-2015, employers must prohibit discrimination across nine specific grounds. These are:
- Civil status.
- Family status.
- Gender or gender identity.
- Membership of the Traveller Community.
- Sexual orientation (this includes heterosexual, gay, lesbian, bisexual or if someone thinks an employee is a particular sexual orientation).
You must never discriminate, or allow someone to be discriminated against due to their sexual preference.
Are all employees protected by law against discrimination?
Employees are protected against unfair treatment due to sexual orientations. For them to be protected legally, the following criteria must be met:
- Be a full-time, part-time or temporary employee.
- Be a public or private sector employee.
- Be a self-employed contractor or partner in a partnership.
- Be an office-holder in state or local authorities.
- Be seeking work through employment agencies.
- Be a trainee doing vocational training.
- Be a member of a trade organisation, union or professional body.
- Be doing paid work experience.
It's important to remember that volunteers aren't protected. However, agency workers are.
What situations does the law on discrimination cover?
The Employment Equality Acts cover many areas of employment to help protect employees from sexual or homosexual discrimination. And as an employer, it's vital you understand where your employees are protected:
- Job advertisement and overall access to employment, for example interviews.
- Terms and conditions of employment, such as equal pay.
- Promotion and dismissal.
- Pensions and retirement.
- Collective agreements.
Different types of sexual orientation discrimination
To fully prevent sexual orientation discrimination from happening in your workplace, it's important you understand the different types. Doing so can help you avoid an employee being put at a particular disadvantage.
Let's discuss them in more detail:
Direct discrimination is when someone of a particular sexual orientation is treated unfairly and differently from other employees.
The main purpose of this form of discrimination is to make the employee feel intentionally upset and victimised. This form is the most obvious and should be avoided at all costs.
Allowing this behaviour in your company may lead to claims being raised to the Workplace Relations Commission.
Indirect discrimination is when workplace policies, practices or rules may indirectly put people of a certain orientation at a disadvantage. It's important to remember that discrimination doesn't need to be intentional to be unlawful.
Even if it is accidental, indirectly discriminating against an employee will still have negative effects on the persons involved. To avoid this, make sure you communicate with all your employees when creating new policies.
Discrimination by association
Discrimination by association is when someone is treated differently because of their association with someone who is a certain sexuality.
For example, not selecting an employee for development opportunities because one of their family members is gay, lesbian or bisexual.
Discrimination by perception
Discrimination by perception is when someone is treated unfairly because of someone's preconceived thoughts. For example, it's illegal to look past someone for a promotion because you think they may be of homosexual orientation.
You must act legally and lawfully during the hiring process. Discrimination against people due to a perceived sexual orientation is against employment law.
Harassment or sexual harassment is any form of unwanted verbal or physical conduct. This can be of a sexual nature.
Allowing harassment to take place in your business can create both a humiliating and offensive environment for your employees. You should never harass an employee because of their sexuality.
You could also be found vicariously liable for harassment carried out by one of your staff members. To defend harassment claims, you must be able to show that you have taken all reasonable steps to prevent harassment occurring in your workplace.
Victimisation is when someone is treated differently after lodging a complaint of discrimination. This behaviour can lead an employee to suffer mental, emotional or physical harm. It can also take place against someone who has supported an employee who made the complaint.
You should never treat someone unfairly for exercising their employment rights.
Examples of workplace sexual orientation discrimination
As an employer, you have a legal responsibility to prevent all forms of discrimination from happening in your company. So, you must understand common examples that may be happening that you weren't previously aware of.
Let's discuss some of them in more detail:
An example of direct sexual orientation discrimination are:
- When an employer refuses to hire someone solely based on their sexual orientation.
This behaviour is unlawful and can take place throughout a company. From the hiring process to when employees decide to find a new job.
Two examples of indirect sexual orientation discrimination are:
- Your company is arranging a conference in a country where homosexuality is illegal.
- A policy for maternity or paternity leave that doesn't include same-sex couples. You may not mean to discriminate when creating policies, but be careful with how they may make some of your employees feel.
Two examples of harassment due to someone's sexual orientation are:
- A gay man being sworn at or called names purely due to the fact he is gay.
- A lesbian is given an unwanted nickname because of their sexuality.
Both harassment and bullying must be avoided in your organisation at all times. Under no circumstances should you allow it to take place. It's your responsibility to foster a workplace culture where this never happens.
Two examples of victimisation due to someone's sexual orientation are:
- The employer threatening to take further action or even terminate an employee's contract unless they withdraw their complaint.
- The employer threatening to take further action or even terminate an employee's contract because they're supporting someone's claim they were discriminated against.
You must take all complaints of discrimination seriously and give them the respect it deserves. It's against the law to treat an employee differently for exercising their employment rights.
Discrimination by association
An example of sexual orientation discrimination by association is:
- Refusing to offer an employee a promotion due to the fact one of their family members is a particular sexual orientation.
How to prevent sexual orientation discrimination in the workplace
As an employer, it's vital that you do everything you can to avoid workplace discrimination relating to sexual orientation or gender identity. Doing this will increase your employee's confidence in you, and create a more positive culture within your company.
There are many steps you can take to help protect your employees, let's discuss them in more detail:
You should do everything you can to promote equality, diversity and inclusivity throughout your company. This includes educating your employees on how discrimination and other forms of unwanted behaviour can make people feel.
There are other smaller ways that you can promote inclusivity, like ensuring all your staff get invited to social events. No one should ever be excluded due to their sexual orientation.
Another way you can prevent sexual orientation discrimination is to provide training to all your staff on the issue. This can include behaviours and actions to look out for, so everyone is aware.
For example, you should provide refresher training each year to make sure everyone is up to date with any legislation changes.
Create clear disciplinary policies
It's the employers responsibility to make sure all incidents of discrimination in their originisation are dealt with accordingly. This can be done by creating disciplinary procedures.
The policy should include how you'll punish any staff carrying out this behaviour, for example:
- Verbal warning.
- Written warning.
- Final warning.
This policy should be included within your employment contract and employee handbooks. Make sure all new staff sign them before starting their employment with you.
Create anti-discrimination policies
You should also create an anti-discrimination policy. This will show all your staff that you're committed to reducing and stamping out this behaviour.
Include the following in your policy:
- Who to report instances of discrimination to.
- How to report discrimination.
- Steps you'll take to investigate discrimination.
Can you ask an employee about their own sexual orientation?
Yes, you can ask your employees what their sexuality is. However, they have no legal obligation to disclose it.
You may ask your employees for monitoring purposes or as part of an equal opportunities questionnaire. If they refuse to answer the questions, you cannot force them. Don't react in an unprofessional manner.
Is discrimination ever lawful under some circumstances?
Yes, there are certain circumstances when discrimination based on the nine grounds may be allowed. However for this to be possible, you need to be able to demonstrate that:
- The job requirements constitutes a determining occupational requirement, for example the need for a bus driver to hold an appropriate driver's licence.
- The objective is legitimate.
- The requirement is proportionate.
There are also certain jobs where discrimination may be lawful. For example employment in someone's home for personal services, or teachers requiring a certain language.
However, you must be able to show that you need to be of a particular orientation to do a certain job - this is known as an occupational requirement.
For example, the employers of a religious Minister may choose not to employ a transgender person or a gay man to avoid offending the religion's followers.
Can you be taken to the Workplace Relations Commission over sexual orientation discrimination?
Yes if you treat an employee with a protected characteristic differently, then claims can be raised against you to the Workplace Relations Commission. If an employee feels their position is untenable and the only option is to resign, you may also face claims of constructive dismissal against you.
If this is the case, you must be able to show you took practicable steps to prevent discrimination from taking place.
Get expert advice on sexual orientation discrimination from Peninsula
As an employer, your company will employ staff of all sexualities. And, you have a legal responsibility to treat everyone equally.
It's illegal to treat someone unfairly because of their sexuality. Failure to stop this behaviour in your company may lead to claims being raised against you.
Peninsula offers 24/7 HR advice which is available 365 days a year. Want to find out more? Contact us on 0818 923923 and book a free consultation with one of our HR consultants.