Sexual Orientation Discrimination

By Amanda Beattie
24 Jan 2022

Although there have been huge strides in equality in the past few years, discrimination in the workplace is far from over.

A study from the CIPD found that more than 40% of LGB+ staff experienced conflict in the workplace, compared to 29% of heterosexual employees. The data from this report shows harassment, abuse, and discrimination towards LGBT+ individuals is still an issue.

What can you do to combat such equality issues in your workplace?

The first step is to fully understand the issue…

What is sexual orientation discrimination?

Context matters when it comes to each individual case of discrimination. However, the basics are the same. Sexual orientation employment discrimination is defined as treating an employee or colleague less favourably because of their sexuality. It is also discrimination to give preferential treatment to people of a certain sexual orientation.

To fully understand this, it’s helpful to define what we mean by ‘sexuality.’ Sexual orientation is who you are sexually attracted to. For example, you could be attracted to:

  • Your own sex
  • The opposite sex
  • The same and the opposite sex

These three definitions are important for legal purposes (more on this later).

However, sometimes sexuality isn’t so clearly defined as the categories above. For example, a pansexual individual may feel attraction towards people regardless of their gender identity. Asexual individuals may have no sexual attraction to others or feel only romantic attraction.

Why is this important? Because victims of sexual orientation discrimination can be of any sexuality. Perpetrators too.

Types of discrimination

Discrimination against sexual orientation can take many forms. These include:

Direct discrimination is the most obvious, but not necessarily the most common. This is an abusive action or comment targeted at someone as a result of their sexuality.

Indirect discrimination occurs when a policy, practice, procedure, or rule applying to all employees’ disadvantages someone of a particular sexual orientation. A common example of this is a policy for maternity or paternity leave that’s not inclusive of same-sex couples.

Harassment is any unwanted conduct that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment for them.

And finally, victimisation.

What this means is a staff member suffers a disadvantage, damage, harm, or loss as they’ve made a complaint about sexual orientation discrimination (or have supported/backed-up a claim).

effect of sexual orientation discrimination

Effects of sexual orientation discrimination

There are many potential issues that can arise If an employee experiences this kind of treatment in the workplace. The main result is that they are more likely to have higher levels of psychological distress and health-related problems. This translates into:

  • Less job satisfaction.
  • Performance issues.
  • Higher rates of absenteeism.
  • Poor turnover rate.

Making a visible effort to tackle bias, inequality, and discrimination has the opposite effect:

  • Boosts work morale substantially.
  • Improves company reputation.
  • Has a positive impact on performance.

Discrimination can also have a devastating effect on your business.

A claim can severely damage your company’s reputation, but it can also cost you if it escalates to tribunal proceedings.

There is no limit on the compensation you have to pay out for a successful discrimination claim. In severe cases, you can be looking at £35,000 and up.

This isn’t including any unpaid wages, unpaid holiday pay, notice pay, redundancy pay, and a basic award for unfair dismissal (if applicable).

So, it’s also in your financial interest to avoid discrimination at all costs.

Sexual orientation discrimination facts

The latest research suggests LGBT+ people still face discrimination at work.

Over 20% of LGBT+ workers experience discrimination during recruitment and promotion. Over a third worry about possible bias.

Around 40% of LGBT+ staff feel their organisation’s policies are inadequate for dealing with gender and sexual orientation discrimination.

A 2018 report of over 100,000 LGBT+ individuals found that 23% had experienced a negative or mixed reaction from others in the workplaces. Over 10% had experienced their sexual or gender identity being disclosed without their permission.

Sexual orientation discrimination laws

In terms of employment law, the main piece of legislation you need to be aware of is the Equality Act 2010. While there are other laws against sexual orientation discrimination, you should always refer back to the Equality Act. This piece of legislation states that, from a legal standpoint, there are only three sexual orientations:

  • Persons of the same sex (lesbian, gay).
  • Persons of the opposite sex (straight).
  • An emotional and / or sexual orientation towards more than one gender (bi).

It also outlines the different forms sexual orientation discrimination in the workplace can take, as highlighted above:

  • Direct
  • Indirect
  • Harassment
  • Victimisation

Finally, the law does state that there are certain instances where discrimination is allowed because of sexual orientation. For example, if the employee needs to be of a particular sexual orientation to perform their role. This is known as an occupational requirement. As a result, it doesn’t technically count as discrimination.

sexual orientation discrimination

Examples of sexual orientation discrimination

As with other forms of discrimination, sexual orientation discrimination in the UK can take many forms. Here’s an example:

You grant an annual leave request to a man who wants to attend ante-natal appointments with his female partner.

You then refuse annual leave to a woman whose female partner is pregnant.

This is an example of direct same sex relationship discrimination.

While the above example is clearly targeted, there can be less obvious cases. In some instances, discrimination is accidental or unintentional. For example:

You want to organise a company conference after a particularly successful financial year. You arrange the event in a foreign country where homosexuality is illegal. A gay employee can’t attend as a result. 

In this case, the discrimination was indirect. This is unlawful and a claim could be raised against you as a result.  

How to stop sexual orientation discrimination

There are a number of steps you can take:

Develop policies clearly outlining a zero-tolerance approach on discrimination, bullying and harassment of LGBT staff.

Don’t just create an equality policy- actively communicate it. Ensure it’s clear and that everyone is aware of it.

Implement diversity and inclusion training with all staff.

Ensure line managers are appropriately trained to deal with sexual orientation discrimination.

Recruit and promote diverse candidates. The way to do this is not to single out a candidate because of their protected characteristic. Instead, include a diverse group of candidates from the outset—this means equal opportunities for all.

Employees experiencing discrimination can find it tough to speak to an employer. It can also have a detrimental effect to their mental health.

That’s why it’s useful to have an Employee Assistance Programme. With an EAP in place, staff can access confidential advice from mental health experts.

Need further guidance?

If you want assistance drafting an equality policy, running a diversity training programme, or just have an HR issue, speak to a Croner expert today on 01455 858 132.

About the Author

Amanda Beattie

Amanda represents corporate clients and large public bodies, including complex discrimination and whistleblowing claims. Amanda also drafts and delivers bespoke training regarding all aspects of employment law, including ‘mock tribunal’ events; in addition she also frequently drafts employment law articles for various publications for Croner and their clients.

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