Sexual Orientation discrimination

The Equality Act 2010 says you must not be discriminated against because

  • You are heterosexual, gay, lesbian or bisexual.
  • Someone thinks you have a particular sexual orientation.This is known as discrimination by perception.
  • You are connected to someone who has a particular sexual orientation. This is known as discrimination by association.

In the Equality Act sexual orientation includes how you choose to express your sexual orientation, such as through your appearance or the places you visit.

What is sexual orientation discrimination?

This is when you are treated differently because of your sexual orientation in one of the situations that are covered by the Equality Act. The treatment could be a one-off action or as a result of a rule or policy based on sexual orientation. It doesn’t have to be intentional to be unlawful.

There are some circumstances when being treated differently due to sexual orientation is lawful, explained below.

Different types of sexual orientation discrimination

There are four main types of sexual orientation discrimination.

Direct discrimination

This happens when someone treats you worse than another person in a similar situation because of your sexual orientation.

  • For example, at a job interview, a woman makes a reference to her girlfriend. The employer decides not to offer her the job, even though she is the best candidate they have interviewed.
  • For example, a hotel owner refuses to provide a double bedroom to two men.

Indirect discrimination

Indirect discrimination happens when an organisation has a particular policy or way of working that applies to everyone but which puts people of your sexual orientation at a disadvantage.

Indirect discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the policy. This is known as objective justification.

Harassment

Harassment in the workplace occurs when someone makes you feel humiliated, offended or degraded.

  • For example colleagues keep greeting a male worker by the feminine version of his name although he has asked them to use his proper name. The colleagues say this is just banter but the worker is upset and offended by it.

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.

Outside the workplace, if you are harassed or receive offensive treatment because of your sexual orientation, this may be direct discrimination.

Victimisation

This is when you are treated badly because you have made a complaint of sexual orientation related discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of sexual orientation related discrimination under the Act.

  • For example a gay worker complains that he has been 'outed' by his manager against his wishes and his employer sacks him.

Circumstances when being treated differently due to sexual orientation is lawful

A difference in treatment may be lawful if:

  • Belonging to a particular sexual orientation is essential for a job. This is called an occupational requirement. For example, an employer wants to recruit an advice worker who has experience of coming out for a young person's LGBT helpline.The employer can specify that applicants must be lesbian or gay.
  • An organisation is taking positive action to encourage or develop gay, lesbian or bisexual people to participate in a role or activity.
  • The treatment by an employer or organisation falls within one of the exceptions that permits people to be treated differently based on their sexual orientation. For example, a charity can provide a benefit only to lesbians and gay men in certain circumstances.
  • A religious or belief organisation is excluding persons of a particular sexual orientation from its membership or participation in its activities, or its provision of goods, facilities and services. This only applies to organisations whose purpose is to practice, promote or teach a religion or belief, whose sole or main purpose is not commercial. The restrictions they impose must be necessary either to comply with the doctrine of the organisation, or to avoid conflict with the ‘strongly held religious convictions’ of the religion’s followers.

Further information

If you think you might have been treated unfairly and want further advice you can contact the Equality Advisory Support Service

Freephone 0808 800 0082

Textphone 0808 800 0084

Or write to them at

Freepost Equality Advisory Support Service FPN4431

The Equality and Human Rights Commission has also produced a range of legal guidance on the Equality Act which you can find here.

Last Updated: 17 Feb 2016