Don’t Discriminate Me! – Your Perception is to Blame

Don’t Discriminate Me! – Your Perception is to Blame

Sexual Orientation Discrimination - Association, Perception and “Related to”

By the time someone who identifies as a member of the LGBT+ community enters the workforce, discrimination based on their sexual orientation will, unfortunately, be tediously familiar. The usual playground insults are too often accepted as ‘banter’. Hopefully, those people will be well aware of their protections under the Equality Act 2010.

However, and perhaps somewhat strangely, it is not always people who identify as lesbian, gay or bisexual who are the victims of discrimination based on sexual orientation. It is not uncommon for a person to be victimised because of who their friends are, or how they carry themselves, or what they wear, or their hairstyle. These preconceptions of identity can be irrespective of a person’s actual sexual orientation. Being discriminated against because of the “perception” of your sexuality is contrary to the Equality Act 2010.

Perception

You would be forgiven for thinking that, since it is not their actual sexual orientation that is the cause of the discriminatory conduct, there is no legal recourse available to them. However, that would be a mistake: section 13 of the Equality Act 2010 allows for less favorable treatment to be because of sexual orientation, regardless of whether it is the victim’s sexual orientation that is the reason for the treatment. ACAS gives the following example:

“Lucy, a heterosexual, has started working at a nursery and is in a probationary period. The line manager who recruited her is very pleased with her performance and feels she has the skills and qualifications to be an asset to the business. However, the owner, Karen, has taken a dislike to Lucy who always wears trousers and has short hair. Also, Karen has been told that Lucy is a big football fan. Karen’s personal prejudices mean she only wants heterosexual women working at the nursery and mistakenly believes Lucy is a lesbian based on her appearance and interests that are not stereotypically feminine. Karen decides to dismiss Lucy and re-advertise the job.”

In the above example, Karen has treated Lucy less favorably by dismissing her and, arguably, Karen dismissed Lucy because, in Karen’s mind, Lucy is a lesbian. As above, it does not matter whether or not Lucy actually identifies as a lesbian. Lucy, who is actually a straight woman, would therefore be able to bring a discrimination complaint to the employment tribunal.

Association

It is probably less surprising that a person might be discriminated against because, for example, they have gay friends or family. Just like when discrimination is based on perception, somebody who does not identify with the sexual orientation which is the basis of the discrimination, can still find protection in the Equality Act. This time, ACAS gives the following as an example:

“Rhodri applies for a job and as part of the interview is asked what the proudest moment in his life has been. He says it was walking his daughter down the aisle at her civil partnership ceremony last spring. After saying this, he feels the tone of the interview changes markedly. He is told later that day that he has been unsuccessful. This makes Rhodri feel he has been discriminated against because the prospective employer does not like the fact that his daughter is a lesbian.”

In this example, Rhodri has been discriminated against because of his association with his daughter, who is a lesbian. But it does not matter that Rhodri’s sexual orientation was not the cause of the discrimination, and he too can bring a discrimination complaint to the tribunal.

"Related To"

Associative discrimination and discrimination based on perception both require the victim of the less favorable treatment to either have the protected characteristic in the eyes of the perpetrator or to have a close connection to someone who does.

However, what if you consider yourself an ally of the LGBT+ community and you find yourself in a working environment which is permeated by the playground insults and “banter” mentioned above? Is there any legal protection for somebody who is simply offended by, for example, homophobic language?

Section 26 of the Equality Act covers harassment, which needs to be “related to”, for the purposes of this article, sexual orientation. That kind of conduct covers association and perception, as above, but it also covers conduct which, regardless of the motivation for it, is related to sexual orientation because of the form that it takes. This would include, for example, telling jokes about gay people which colleagues (regardless of their sexual orientation) find offensive.

Where Lawson-West comes in

At Lawson-West, we understand that suffering discrimination of any kind in the workplace can be incredibly tough. We therefore take our own core values of openness and being caring, helpful and supportive incredibly seriously, and we are proud of our own diverse and inclusive workforce. With those values in mind, we hope that all our clients will find that their legal issues are handled and resolved with sensitivity and empathy.

If you have found yourself in any of the situations discussed above, Lawson-West has offices in Leicester, Wigston and Market Harborough and we would welcome you to an initial consultation, free of charge, where we can discuss your circumstances and any potential claim.

Additionally, please do keep in mind that there are strict time limits in employment claims, including discrimination, and legal advice should be sought as soon as possible.

What should you do next?

If you would like to speak to someone about your experiences of discrimination in your workplace, please contact me, Joseph Weston jweston@lawson-west.co.uk for an initial free no obligation conversation. We have helped hundreds of people facing similar problems and can provide useful information in a helpful and supportive way.

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