Is all sexual orientation discrimination the same?
No. There are different types of sexual orientation discrimination, and it doesn’t have to be intentional to be unlawful.
The main forms are:
Direct discrimination is where you are treated worse than others in the same or similar circumstances because of your sexual orientation. For example: The best candidate at interview is not offered a job because the employer suspects he is gay whilst a less able candidate, whom the employer believes to be straight, is offered the post.
Indirect discrimination is where an organisation unjustifiably operates a rule or policy that looks the same for everyone but has the effect of disadvantaging people on grounds of their sexual orientation. For example: A female applicant who is a lesbian applies for a high-profile job. She is well qualified and experienced for the post. Part of the recruitment exercise includes an interview with her partner, as partners are considered to play an important social role at work related events. The applicant refuses to disclose details about her partner on the grounds that the information is private. Shortly afterwards she is advised that her application is unsuccessful. If the employer fails to appoint her because she refuses to disclose details about her partner, she may be able to argue that she has been indirectly discriminated against, on the basis that LGB people are less willing to provide information about their partners.
Harassment is where a person behaves in a way, on grounds of sexual orientation, which violates your dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. For example: Workers continually subject a gay colleague to offensive comments about his private life, and he is often ridiculed in front of management and criticised about his work. Despite complaints, management takes little action to prevent the harassment continuing.
Victimisation is where you have made a complaint of sexual orientation discrimination or helped someone else with a complaint under the sexual orientation law and suffered as a result. for example: A female employee is dismissed because she made an allegation of sexual orientation discrimination to their employer. Provided the complaint is made in good faith and not false, she has been victimised contrary to the legislation.
How common is this?
Over the past three years we have helped over 220 people who have experienced some form of sexual orientation discrimination.
We have helped individuals with such issues as:
- Terms and conditions of employment
- Failure to appoint to a post
We recognise there is an under reporting of sexual orientation discrimination and have developed a dedicated presence on social media to raise awareness of rights and how to take action:
How am I protected against sexual orientation discrimination?
You are protected against sexual orientation discrimination in employment including:
Applying for a job
Terms and conditions of employment
Opportunities for training / promotion
Disciplinary / grievance procedures
The working environment
Dismissal / redundancy
Attendance at institutions of further and higher education
However, there are very limited circumstances where sexual orientation discrimination is allowed. This is called genuine occupational requirement (GOR) i.e. possessing a particular sexual orientation is needed for the job.
Employers must show that being of a particular sexual orientation is a genuine and determining occupational requirement and it is ‘proportionate’ to apply that requirement in the circumstances in question. It must be necessary, as opposed to merely preferable, for the duties of the post to be performed by someone of a particular sexual orientation.
What are my options?
1. Contact our Discrimination Advice Officers who will provide you with free and confidential information and guidance to help you resolve your issue.
2. Raise your complaint directly with your employer and seek a resolution.
3. If a resolution is not reached and you wish to take your case further you must notify the Labour Relations Agency. You will be offered early conciliation which can help you and your employer resolve the issue before you need to make a claim.
4. If your complaint is still not resolved you can lodge a claim with the tribunals. We may be able to provide you with legal representation. It is your responsibility to lodge your complaint of discrimination with the tribunal.
Only a tribunal decides whether the treatment you have complained of is unlawful discrimination. It is separate to, and independent from, the Equality Commission.
If you require assistance or would like to make a discrimination complaint, complete our online form or telephone 028 90 500 600 (10am-4pm, Mon-Fri).
Publications (in pdf format)
relevant to sexual orientation:
Organisations relevant to sexual orientation:
Time limits apply
Remember there are strict time limits for taking a case of sexual orientation discrimination. Complaints on employment issues must be made to the tribunals within three months less one day
from the date of the discriminatory act. Even if you are attempting to resolve problems internally, the statutory time limits still apply.
Early conciliation measures have now come into effect. As a result anyone who wishes to lodge a claim with the tribunals must first notify the Labour Relations Agency
and discuss the option of early conciliation. Potential claimants will not be able to proceed to tribunal without at least considering this option. Your time limit is likely to be affected by this.
If your time limit has expired the tribunal has discretion to extend the time for you to lodge your claim. This is used sparingly and it is unwise to assume that an extension will be granted. You still need to contact the Labour Relations Agency before you lodge a claim out of time.
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