The right to work freely, without fear of discrimination or harassment is a basic human right, but one that is denied to many lesbians and gay men. This is not about special treatment for lesbians and gay men; it is simply about the right of all men and women to be judged according to their merits, and how well they can do the job, not their sexual orientation.
In 1993 Stonewall published a report, Less Equal than Others, based
on a survey of 2,000 lesbians, gay men and bisexuals and their experience
of discrimination at work. This report provided compelling evidence that
discrimination harassment and the closet are a problem for most lesbians
and gay men at work:
Discrimination: 16% of respondents had faced discrimination at work because of their sexuality, and another 21% suspected they had been discriminated against because of their sexuality. Harassment: 48% of respondents had been harassed at work. Experiences included ostracism, being "outed", false accusations of child abuse, blackmail, malicious jokes, threats and physical violence. The closet: 49% of respondents concealed their sexuality from some of the people they worked with. 19% concealed their sexuality from everyone at work.
More evidence: the SCPR survey
An independent report by Social and Community Planning Research (SCPR) confirms these findings. Their study, Discrimination against Gay Men and Lesbians (1995), is based on the first ever survey of a representative sample of lesbians, gay men and bisexuals. They found that:
4% had lost their job because of their sexuality.
8% had been refused promotion because of their sexuality.
21% had been harassed at work.
64% concealed their sexuality from some or all of the people they worked with.
The law
Under British law it would seem that lesbians and gay men have no protection from discrimination in law:
Discrimination is not illegal: Employers are perfectly entitled under British law to reject a job applicant simply because they are lesbian or gay. By contrast employers are not allowed to refuse to employ someone simply because of their sex, race, disability or (in Northern Ireland) their religion.
Unfair dismissal is not illegal: A lesbian or a gay man who is dismissed because of their sexuality has no redress unless they have been with that employer for two years. Only then can they claim for unfair dismissal. Even then they have no guarantee of succeeding, because the Employment Appeal Tribunal has held that employers may dismiss gay people on the grounds of potential client prejudice even if that prejudice has no basis in reality (the Saunders case).
Unequal pay is not illegal: Employers are under no obligation to give lesbians and gay men the same pay and conditions as other employees. Many lesbians or gay men lose out on fringe benefits because their employer will not recognise their partner, for example in health insurance, the pension scheme, or cheap or free use of the employer's services. Stonewall is backing a test case against South West Trains for refusing to grant free travel to an employee's partner because she is a lesbian.
Employers do not have to stop harassment.: Employers can be held vicariously liable for sex discrimination if they do not take steps to deal with sexual harassment. The same applies to racial harassment. If the employer is held to be liable the victim can recover substantial compensation from the employer; this gives employers a strong incentive to make sure it doesn't happen. But because sexuality discrimination is not illegal, employers cannot be held liable for harassment on these grounds either.
Even a policy of discrimination is not illegal.: The ban on lesbians, gay men and bisexuals serving in the armed forces has been upheld by the courts.
The position outlined above may seem bleak, but recent decisions by the European Court of Justice suggest that sexuality discrimination is already unlawful under European law.
Protection from discrimination
There is no law against discrimination on the grounds of sexuality in employment, or in the provision of services (e.g. discrimination by hotels or restaurants). Employers can lawfully refuse to hire a lesbian or a gay man because of their sexuality, or refuse to promote them, or even dismiss them simply because of their sexuality. A claim for unfair dismissal can only be taken by an employee who has been with their employer for at least two years, and even then a claim for unfair dismissal on the ground of sexuality will not necessarily succeed.
Employers are under no obligation to give lesbians and gay men the same pay and conditions as other employees. Many lesbians and gay men lose out on fringe benefits because their employer will not recognise their partner, for example in health insurance, pension schemes, or cheap or free use of the employer's services.
