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Take pride in your workplace: 3 common myths about discrimination

June 4, 2024

It is Pride Month and, while I am not a member of the LGBTQ+ community and so do not have any lived experience that I can share, I write this blog with my professional hat on in the hope that I can bring a different perspective.

That is because advising clients, whether employers or employees, on discrimination of all sorts makes up a growing part of my professional practice and when advising in this area I often see many misunderstandings and myths which can lead to problems.

As with so many things, awareness is key and so, as it is Pride, I wanted to share some of those with a focus on sexual orientation to (hopefully) educate employers and employees and help them avoid common pitfalls.

I should also say that the definitions in the Equality Act are such that different protected characteristics could cover different individuals. I have therefore focussed on sexual orientation as the definition covers the broadest range of people but the advice in this blog could equally apply to those covered by the protected characteristic of gender reassignment.

Myth: You need to be gay, lesbian or bisexual to bring a claim for sexual orientation discrimination

In most cases to bring a claim of discrimination (and there are various types) you need to possess a particular protected characteristic. These are 9 categories of individual/group, or ‘protected characteristics’ which are contained within the Equality Act 2010. Sexual orientation is only one protected characteristic.

There are however some types of discrimination claim where the individual does not need to have the protected characteristic. For example, a line manager assumes that an employee is gay because of, say, how they dress or their personal interests and treats the individual less favourably as a result. That could be direct discrimination by perception.

Equally where someone is treated less favourably because they are associated with a particular group that too could be direct discrimination, but by association. For example, an employee posts on social media regularly in support of their lesbian friend and the employer, who does not support the view expressed, disciplines them.

But arguably, the most common case of discrimination without the need to possess a protected characteristic is harassment. For this claim to succeed an individual needs to show that they were subjected to unwanted conduct related to a protected characteristic and that this had the purpose or effect (more on effect below) of violating the individual’s dignity or creating an intimidating, hostile degrading, humiliating or offensive environment for that person.

That unwanted conduct could be anything from name calling, offensive language or inappropriate behaviour provided it relates to sexual orientation. The conduct does not even need to be directed at someone to be unwanted – imagine a discussion amongst colleagues overheard by another colleague, who is not of the sexual orientation being discussed, but they find such talk to be offensive and it creates a humiliating environment for them. All that is required is that the unwanted conduct is related to sexual orientation.

Myth: Banter is acceptable if there is no bad intent or desire to offend

Continuing the theme of harassment, this is a defence I hear a lot – ‘I didn’t mean to offend, it was just a joke’.

Sorry – but that will not absolve you at the employment tribunal. The intent of the person making the inappropriate comment is not relevant. Going back to the definition of harassment, it is unwanted conduct with has the purpose or effect of creating the unacceptable working environment.

You might therefore think that you are being funny and others may laugh but if your conduct has the effect of creating an intimidating or offensive environment for the person who complains (judged objectively) then that is all that matters. Your intent means nothing.

In addition, someone may initially participate in the jokes or the conduct but can still then argue that the conduct was, or became, unwanted and amounted to harassment so saying ‘they initiated the conversation’ or ‘they participated’ is also not a defence.

Remember too that the individual who makes the inappropriate comments could, in addition to the employer, also be named in any subsequent claim.

Myth: conduct must take place inside the workplace for the employer to be liable

Any conduct which takes place in a forum which is an extension of the workplace could be caught by a discrimination claim.

That means: work events, such as conferences or trips away; social events; networking events; group text or message chats; and social media could be deemed as the workplace for the purpose of a claim.

That is why it is really important that employers have sensible and robust policies in place, training is given and refreshed, employees and managers are reminded of their obligations and responsibilities, and complaints are dealt with the swiftly and appropriately.

While there is no justification in law for the individual’s conduct where it amounts to harassment, employers can have a defence to a successful harassment claim if they can show that they have taken all reasonable steps to prevent harassment. Those above are examples of that.

Pride Month is a time to embrace diversity while we support and champion LGBTQ+ people but it is also a good time to remind ourselves to be alert to discrimination and the misconceptions around it. Doing that means that we can all take pride in our workplace.

Looking to connect? Visit my LinkedIn profile here for the latest updates and insights.

If you have any questions on this or on any other area of Employment law, please get in touch with the Blackadders Employment team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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