UK Report: Sexual Orientation Discrimination at Work

Contributed by Rebecca Chong, Rooks Rider Solicitors. Erin Abrams contributed some information to this article.

“Heterosexuality isn’t normal, just common,” British artist and gay activist Derek Jarman once quipped. Although the general population has become increasingly aware of sexual diversity in the workplace, particularly since the Gay Pride movement took on a more moderate face in the 1980s. It helped to raise the positive profile of gay men and lesbians when respected celebrities came out of the closet. For example, Rosie O’Donnell and Ellen DeGeneris, high-profile lesbians, are popular talk show hosts who have been involved in a variety of advertising campaigns.

However, even though people in the LGBT (Lesbian, Gay, Bisexual and Transgender) community are increasingly accepted as such at work, there is still a disturbing trend of defining individuals by their sexual identity. Unfortunately, the stereotypes based on a person’s sexual orientation that have emerged, and that are perpetuated by the entertainment industry, sometimes permeate the workplace and affect employer’s perceptions about who is well-suited for a job and what kind of employee that person might be.

In defiance of Jarman’s wise words, a significant proportion of the public still clearly regards the ‘common’ as being synonymous with the ‘normal,’ and discriminates against those who do not fit their profile. In a recent Stonewall-commissioned YouGov report surveying the treatment of gay and lesbian people in the workplace, 13% witnessed verbal bullying and 4% even witnessed physical bullying. These figures translate to 4 million people nationwide observing homophobic abuse.

Fortunately, the British legislature has taken steps to address this problem. On December 1, 2003, the Employment Equality (Sexual Orientation) Regulations (the EER) came into force in the UK and made it unlawful to discriminate against a person based on sexual orientation, or harass or victimize them because of their actual or perceived sexual orientation.

In 2005, a major cases decided by the EER set a high standard, prohibiting the use of homophobic language in the workplace, and awarding a gay employee who had been discriminated against nearly £10,000 in compensation.

Still, with the media continuing to perpetuate stereotypes of gay men and lesbians, it is not surprising that some still make assumptions about people based on their sexual orientation. Characters like Jack on “Will & Grace,” and the Fab Five from “Queer Eye for the Straight Guy” are celebrated for introducing the concept of sexual diversity into popular culture, but some say that they play into negative stereotypes that encourage people to define others by their sexual orientation.

The same is not necessarily true of lesbians, however, who are less often portrayed on television as stereotypical characters. For example, Rosie O’Donnell and Ellen DeGeneris are not actors, but portray themselves, and rarely focus on their sexuality. Another popular show, “The L Word,” tracks the lives and loves of four lesbians, who all have careers and relationships. The show, enjoyed by lesbians and straight women alike, reminds people of “Sex and the City.” There are always exceptions, however. The reality show “A Shot at Love with Tila Tequila,” in addition to being an all time cultural low point for America, included many stereotypical and negative portrayals of lesbians and bisexual women.

Despite these stereotypes in the media and in popular culture, the EER views each person as equal, and does not discriminate in offering protection by law. Its broad wording was brought into play early January 2008 in the well-publicized case of Sharon Legg, a straight female bouncer of a gay night club, who brought a successful claim against her employer under the EER for repeatedly calling her derogatory names such as a “breeder.” Although she was found not to have been dismissed because she was heterosexual, she was awarded significant compensation for being harassed because of her sexual orientation.

This is not the first time such a case has come to light. In 2005, Ms. Hegarty, a heterosexual employee of a gay bar in Soho, was found to have been unfairly dismissed when it was discovered that the closing down of the bar was a “sham” in order to re-launch the bar with an all gay male staff. The Tribunal was satisfied that this was unfair dismissal and direct discrimination on grounds of sex and also sexual orientation, and awarded her £3110.95.

Caroline Doran, employment and discrimination expert at Rooks Rider Solicitors says:

“The sexual orientation legislation was implemented to stop employers from making decisions about a person because of their sexuality. The UK law protects workers if they are fired or demoted because they are or are thought to be gay, lesbian, straight or bisexual.

Employers need to realize that discrimination legislation is not just the sword of the minorities. We are seeing large numbers of white male senior executives who are protected under the age discrimination legislation. This case is a welcome reminder that heterosexual staff cannot be discriminated against by a company or their staff.”

Lesbians are also treated differently in the workplace, though not always in a discriminatory manner. Although negative attitudes towards lesbians may affect their career progression, statistics by the Centre for Economic Performance reveal that lesbian women in couples are actually paid about 11% more than heterosexual equivalents and are 12% more likely to be employed. This divergence has been attributed to the idea that lesbians are less likely to have children than straight women, and so have fewer child care committments and work/life balance issues that might reduce their ability to work and advance at the office. Indeed, at some law firms and financial institutions, its a well-known secret that lesbians are more “valued” than young straight women, and targeted for promotion because they are viewed as less likely to get married, have children and leave the work-force in a few years.

Discrimination based on sexual orientation in the workplace does not always favor one category more than another. For an individual, it may prove to be a positive force in one situation, and rear an ugly head in another. The sooner that we discard the fickle “us vs.them” mentality, and start taking sexual orientation out of the equation in defining a person’s ability to do their job, the faster we will progress towards achieving a genuine equality that is beneficial to us in both our working and social spheres.

Please contact Caroline Doran (cdoran@rooksrider.co.uk) on 0044(0)207 689 7000 for further information.