What is sexual orientation discrimination? This is when you're 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 which we explain at the end of this post
What the Equality Act says about sexual orientation discrimination
The Equality Act 2010 says you must not be discriminated against because you are heterosexual, gay, lesbian or bisexual or because someone thinks you have a particular sexual orientation (this is known as discrimination by perception) or because 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.
Different types of sexual orientation discrimination There are four main types of sexual orientation discrimination:
1. 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 or a hotel owner refuses to provide a double bedroom to two men
2. 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
3. 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 of the workplace, if you are harassed or receive offensive treatment because of your sexual orientation, this may be direct discrimination.
4. 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 Equality 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 or that an organisation is taking positive action to encourage or develop gay, lesbian or bisexual people to participate in a role or activity.