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Discrimination Against Gays

Discrimination against gays is a societal problem. In the UK it is now illegal to discriminate against a person because of their sexuality - this has been illegal in the workplace for most of the past decade and is now illegal in wider society.

Discrimination in the workplace can take two forms: direct and indirect.

What is Direct Discrimination?

Direct discrimination on the grounds of sexuality occurs when a person is treated in a different manner to another person based solely on their sexuality. For example an employer places and advert for a job and interviews two candidates, one of whom is gay and one of whom is straight.

The gay man is more qualified than the straight man but it is the straight man that is offered the position. This would constitute direct discrimination if it could be proven that the reason the gay man was not offered the job was because of his sexuality, an assertion that would be simple to make and difficult to refute as the onus would be on the employer to show that there was another reason that the less qualified applicant was offered the position.

What is Indirect discrimination?

Indirect discrimination is a more opaque concept. It is not possible to indirectly discriminate against a specific person per se, as to indirectly discriminate an employer must have attached a condition to the job that disproportionately affects a protected group, and the employer cannot justify the provision as a real requirement for the job.

However when deciding if indirect discrimination has occurred, an employment tribunal will examine whether the candidate alleging discrimination has less chance of being offered the job than another group because of the condition imposed. If they have been disadvantaged, the condition cannot be justified and the individual is part of a protected group, indirect discrimination will have occurred.

For example, a job is advertised with the condition that applicants must sit a test that is in a particular language (English, for the sake of argument). If the employer cannot show that the ability to speak English is a necessary attribute for performing that job it could constitute indirect discrimination on the grounds of race, as there are many ethnic groups that may not be able to speak English well enough to sit such a test.

While it is certainly difficult to think of a situation in which gay people as a group would be indirectly discriminated against (purely because they are only a group due to their sexual preference; there are no pervasive cultural or social conditions), that is not to say that it is impossible. The only situation that springs to mind is transsexuals applying for a job for which some gender qualification has been attached, although the Gender Recognition Act 2004 would probably mean that there would be no issue there either.

In Summary

Sadly, discrimination against gays is still prevalent in society at large. In March 2010 a couple were prevented from staying in a B&B in Cambridgeshire because of their sexuality. The Equality Act 2004 made this behaviour illegal, but the couple still had to find another place to stay that night. That the police are investigating is welcome but the challenge in effecting change on a societal level is in changing attitudes, of which legal sanction can be only a small part.

It is the sad truth that discrimination will always exist against any group which can be classed as 'different'.

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