Date: Fri, 14 Jul 95 09:05:33 PDT From: anya@stonewall.org.uk Am sending in case you would like to post it up Stonewall's briefing on the SOD Bill which is due to be debated today in the House of Lords. It includes an up to date list (as best we can vouch for) of EC countries which have laws against sexuality discrimination. Best wishes Anya STONEWALL PARLIAMENTARY BRIEFING ARGUMENTS FOR EMPLOYMENT RIGHTS FOR LESBIANS AND GAY MEN (THE SEXUAL ORIENTATION DISCRIMINATION BILL) INTRODUCTION "The worst thing was having to sit and listen to it, wanting to say something but being too worried about money to make myself vulnerable" _ Jason Less Equal Than Others, Stonewall, 1993. The Sexual Orientation Discrimination Bill seeks to protect lesbians and gay men against harassment and discrimination in the workplace. It amends the Sex Discrimination Act to make such discrimination unlawful. In this briefing we produce: * survey evidence that discrimination and harassment are a serious problem * case histories of discrimination and harassment * a summary of the law explaining why it does not address this problem * a review of the government's position * answers to likely objections to the Bill * a list of European Community countries with similar legislation, and * a clause by clause explanation of the Bill. The right to work freely, without fear of discrimination or harassment is a basic human right, but one that is denied to many lesbians and gay men. This is not about special treatment for lesbians and gay men; it is simply about the right of all men and women to be judged according to their merits, and how well they can do the job, not their sexual orientation. DISCRIMINATION THE STONEWALL SURVEY In 1993 Stonewall published a report, Less Equal than Others, based on a survey of 2,000 lesbians, gay men and bisexuals and their experience of discrimination at work. This report provided compelling evidence that discrimination harassment and the closet are a problem for most lesbians and gay men at work: DISCRIMINATION: 16% of respondents had faced discrimination at work because of their sexuality, and another 21% suspected they had been discriminated against because of their sexuality. HARASSMENT: 48% of respondents had been harassed at work. Experiences included ostracism, being "outed", false accusations of child abuse, blackmail, malicious jokes, threats and physical violence. THE CLOSET: 49% of respondents concealed their sexuality from some of the people they worked with. 19% concealed their sexuality from everyone at work. THE SCPR SURVEY An independent report published in May by Social and Community Planning Research (SCPR) confirms these findings. Their study includes the first ever survey of a representative sample of 116 lesbians, gay men and bisexuals: 4% had lost their job because of their sexuality. 8% had been refused promotion because of their sexuality. 21% had been harassed at work. 64% concealed their sexuality from some or all of the people they worked with. The SCPR study found slightly lower levels of discrimination than the Stonewall survey, but half the SCPR sample were bisexual or heterosexuals who had had gay relationships in the past, whereas the Stonewall sample was 95% gay or lesbian and 5% bisexual. Also, the Stonewall sample were more open about their sexuality than the SCPR sample. This is relevant because SCPR found that the more open people were about their sexuality, the more discrimination they suffered. SCPR also surveyed a representative sample of 600 heterosexuals: ONE IN THREE HETEROSEXUALS SAID THEY WOULD BE LESS LIKELY TO HIRE A GAY OR LESBIAN JOB APPLICANT. CASE HISTORIES Discrimination in recruitment: Simon I occupy a relatively senior position in local government ... I have only been out at work for one year, and although during that period I have been promoted within the organisation, I have been openly told that I would not have been appointed to my previous job within the organisation were it known at the time that I was gay. The line which my immediate supervisor takes is that I earned my respect during the time I was closeted but that I would not otherwise have been given the opportunity to earn that respect. Discrimination at promotion stage: John I was interviewed for internal promotion, but was not offered the post. I had more relevant qualifications and experience than the successful candidate, and better performance assessments. At interview I was asked questions like "I see you are not married _ is there any particular reason?" I evaded that one only to be asked "Aren't you interested in women then?" I remember responding that women played a big part in my life both at work and among my friends. I asked the director for the reasons why I was not offered the job. The reasons provided verbally by the director were: a) I was not seen as having a strong enough personality to manage a large number of people (40 staff). (I already managed 27 and had an "A" assessment for staff management for the previous two years.) They said I came across as a weak individual at the interview, yet my superior wrote on my reference that I had a strong personality and a firm management style. b) The job was a high pressure role requiring long hours. As a single man I did not have the domestic support system (i.e. a wife) to be successful in the role. All others at this grade are married. "It would help a lot, you know, John, if you were married. How would you cope at social engagements attended by couples? It's just not done you know." In short, I believe I was discriminated against because I am gay and the rest of senior management at X are not. I do not fit their model of a senior manager. It's all rather odd as my relationship has survived whereas I can think of several colleagues who have been through unpleasant divorces and have remarried. Discrimination in pay and conditions: Mark The bank moved me from London to the Midlands. They refused to treat me as "married" for the purposes of relocation even though my partner and I had been living together for 10 years. I lost several thousand pounds in relocation allowances paid to married couples without children but not to single people or cohabiting couples. My partner's life and employment were severely disrupted by the move. His existence and our relationship were denied or largely ignored by the bank. I was offered temporary accommodation in a hotel. They refused to pay for him. The bank refused to allow us a joint staff mortgage (at reduced interest rates). It had to be in my name only and my partner was classed as an occupier on the mortgage agreement with no legal rights. My partner is excluded from the staff benefits package. Married couples are automatically covered. This means he is not insured by the bank to drive my company car, he is excluded from the bank's private health insurance, he is not entitled to a partner's pension in the event of my death, and he is excluded from all other staff benefits such as free financial advice, cheap share dealing, preferential insurance terms, lower fees and charges for bank services. Fear of coming out: Caroline I lead a bizarre and stupid double life - out to family, friends and neighbours and firmly in the closet at work. I am a gynaecologist and have only loved one woman, with whom I am in a long term relationship (7 years). I know there is no contradiction between being a lesbian and being a gynaecologist - in fact my personal traumas have enriched my practice as a doctor. I spent several years of agony believing that maybe I shouldn't do both if society disapproved. I denied my sexuality. Then, I gave up obstetrics and gynaecology which I adore. Eventually I decided I could do both, but as I achieve more professionally my fear of ending up on the front page of the SUN increases. I've recognised that I can't live in fear and so I'll brave it out if it ever happens. I'm happy to be discreet - after all private lives are supposed to be private - only the necessary deception depresses me. I have to shroud my social life in mystery, avoid awkward questions and often tell lies. I am not paranoid; I'm quite sure that a majority of my colleagues (90% male and largely with sexist views of women) would strongly disapprove and a small minority would be extremely hostile. I have enough trouble being "a sassy woman", let alone "a dyke". Harassment: Lawrence In the shop where I used to work, the boss harassed me continually in many ways. He would tell everyone - including customers: "This is our Lawrence; queer" (this obviously embarrassed the customers.) He would usually say "poof" or "queer" instead of my name, both in talking directly to me or asking other staff members to pass on a message. He also called me "dear" or "darling", and again in front of customers. Also, he would make grabbing movements towards my genitals (although he never came into contact) and often when passing by he would make out I had touched him. I have no reason to think he was anything other than 100% straight. It was only this one person who was troublesome, I had no problems at all from any other members of staff. Harassment: Sue I was working in a factory in a small Hampshire town and nobody knew I was a lesbian. Things were going fine until one evening I was spotted by a colleague going into the only gay pub in the area. From then on, at work, I was avoided, "sent to Coventry", and derogatory comments about queers were made whenever I was present. I ended up having to leave as the stressful situation was too much. Harassment and violence: Kevin I was working as a fork lift truck operator between March and December 1990. The warehouse supervisor, who was also the union shop steward, was a somewhat aggressive character and made no bones about his dislike of gay men. Prior to the assault on myself, he had also attacked another member of staff, plus he'd on different occasions used derogatory remarks against homosexuals. On 13 December 1990 he attacked me and hit me in the head. The outcome of the assault is that I have not been able to work since the assault and I have now developed osteoarthritis of the cervical spine. I have to take strong pain killers twice a day and I am registered as a disabled person. I suffer regular migraines and have to go to bed to sleep them off when they occur. (All cases taken from Less Equal Than Others: A survey of lesbians and gay men at work, Stonewall, 1993, except the three cases above which are taken from a Stonewall survey on homophobic violence and harassment, not yet publihsed.) THE LAW Discrimination is not illegal Employers are perfectly entitled under the law as it stands to reject a job applicant simply because they are gay, or even to have a policy of not employing lesbians and gay men (as the armed forces do). A lesbian or gay man who is refused a job on this basis has no redress. By contrast employers are not allowed to refuse to employ someone simply because of their race, or their sex, or (in N.Ireland) their religion. Unfair treatment is not illegal Once employed, lesbians and gay men have no right to equal treatment with other workers. So if they reveal, or someone else reveals, that they are lesbian or gay, their employer can treat them unfairly for example by refusing to promote them, and again they have no redress. Unfair dismissal is not illegal It is not even illegal to dismiss people because of their sexual orientation. Lesbians and gay men who are dismissed on these grounds have no redress unless they have been with that employer for at least two years. Only then can they claim for unfair dismissal. Even then they have no guarantee of succeeding because it has been held at Employment Appeal Tribunal that employers may dismiss gay people on the grounds of potential client prejudice even where that prejudice has no basis in reality. Unequal pay is not illegal Employers are under no obligation to give lesbians and gay men the same pay and conditions as other employees. Even where lesbians or gay men suffer no other ill treatment as a result of their sexuality, in most cases they receive no ancillary benefits in relation to their partner, for example health insurance or a pension for their partner if they die before their partner. So they do not receive equal pay. Harassment is not illegal Employers can be held vicariously liable for sex discrimination if they do not take steps to deal with sexual harassment. The same applies to racial harassment. But they are not required to deal with harassment of lesbians and gay men. The Criminal Justice and Public Order Act 1994 made intentional harassment a criminal offence. However it is not yet clear how serious the harassment would have to be to constitute an offence, and the new offence places no duty on employers to take steps to prevent harassment. Besides, to pursue a complaint under the new offence would involve coming out, and lesbians and gay men with no employment rights may be reluctant to do that. More harassment could follow or they could even lose their job. THE GOVERNMENT'S POSITION The government cannot claim that the reason they have done nothing to tackle anti-gay discrimination is that they did not know the problem exists. In 1993, following the publication of Less Equal Than Others, Stonewall wrote to Ann Widdecombe, then junior Minister at the Department of Employment, to draw her attention to the problem of widespread discrimination revealed by our survey. She replied saying that the government did not condone discrimination but they had no plans to do anything about it! "The government condemns all forms of discrimination" This has become the stock answer to all letters to government ministers raising the problem of discrimination: "The government condemns all forms of harassment and discrimination whether in society or in the workplace and believes that there is no place in modern democratic society for behaviour of that sort."* Yet the government itself has done nothing to combat anti-gay discrimination, and it discriminates itself by refusing to allow lesbians and gay men to serve in the armed forces. "There is no need to legislate" The government claims that there is no need to legislate further because "The Employment Protection (Consolidation) Act 1978 offers a comprehensive set of individual employment rights including the right not to be unfairly dismissed".* However as they well know this only covers those who have two years' continuous service before they are dismissed. Sex and race discrimination legislation gives truly comprehensive protection against discrimination starting with discrimination at recruitment stage. It also establishes the principle that sexism and racism are completely unacceptable. In cases taken under the EPCA it has been held at Employment Appeal Tribunal that employers may dismiss gay people on the grounds of potential client prejudice even where that prejudice has no basis in reality. "Persuasion is better than legislation" "A kinder, more thoughtful and more accepting attitude towards homosexual people is just as likely to be achieved by raising awareness... than by passing more laws banning such discrimination".* This would be more convincing if Ann Widdecombe had ever done anything to raise awareness of this problem. Of course persuasion is important. We would very much like to see the government take action to persuade employers not to discriminate. But persuasion alone is not enough, and in the case of disability discrimination the government has finally recognised this and introduced legislation. * (Letter from Ann Widdecombe to Stephen Dorrell, 5 April 1995). LIKELY OBJECTIONS "Only people with a grudge reply to surveys" Our evidence of discrimination is not just based on two surveys of lesbians and gay men, the Stonewall survey and the SCPR survey, it is also based on what heterosexuals themselves have said. One third of heterosexuals told SCPR that they themselves would be less likely to hire a gay or lesbian job applicant. "The numbers are too small to make it worthwhile" It has been suggested that legislation is not necessary or worthwhile because lesbians and gay men make up such a small minority, perhaps as little as 1%. Other surveys suggest lesbians gay men and bisexuals make up at least 5% of the population _ roughly the same proportion as ethnic minorities. But the right to equal treatment does not depend on making up a particular percentage. Jewish people are only 1% of the British population _ of course that doesn't mean they don't deserve equal rights. "The costs would be too great" Dealing with discrimination against lesbians and gay men would cost practically nothing. Dealing with sex discrimination involves far higher costs (maternity leave, childcare costs, equal pay) as does dealing with disability discrimination, but society has decided, rightly, that these costs are justified. Lesbians and gay men are taxpayers too, and it is insulting to suggest that they should help pay for everyone else to be equal whilst themselves being treated as second class citizens. "We don't need any more quangos set up to protect minorities" The SOD Bill would not create any new commission. Implementation would become the responsibility of the EOC. The Bill would not give special rights to any group. It would give everyone, including heterosexuals, the right to equal treatment regardless of their sexual orientation. "The public isn't ready for it" Opinion polls have repeatedly shown that the measures proposed are supported by a majority of the public. In a 1992 poll by Harris of 1,000 voters, 71% agreed that "lesbians and gay men should have the same rights under the law as everyone else." In the SCPR survey, 67% of 600 heterosexuals agreed that "there should be laws to protect gays and lesbians from discrimination." Many heterosexuals are amazed to be told it is not illegal to discriminate against lesbians and gay men. "Homosexuals should not be allowed to work with children" The abuse of children is a serious problem, but it is not a gay problem. Statistically most abuse is carried out by heterosexual men, yet no one suggests treating all heterosexual men with suspicion as a result. A parallel can be drawn with what we believe should happen in the armed forces. Everyone should be subject to the same code of conduct, but no one should make a priori assumptions about any individual based on their membership of a particular group or class. Far from protecting children, making spurious assumptions that homosexuals are more likely to abuse (and by implication that heterosexuals are less likely to abuse) is likely to relax vigilance and put children at risk. "Sexual orientation could include paedophilia" The term "sexual orientation" is now widely used by employers in their equal opportunities policies to refer to a person's sexual preference for people of the same sex, the opposite sex or either sex. It is also used in this sense in the Trade Union Reform and Employment Rights Act 1993. The fact that the term is not defined in TURER suggests that the government's own parliamentary draftsmen did not consider the term ambiguous. "My religion requires me to discriminate" Cardinal Hume this year published a note on the position of the Catholic Church on homosexuality. He drew an important distinction between religious approval of homosexuality and respect for the individual rights and experiences of lesbians and gay men. He made it clear that the Catholic Church has "a duty to oppose discrimination in all circumstances where a person's sexual orientation or activity cannot reasonably be regarded as relevant." The same distinction is made by other religious leaders. Moreover, any anti-discrimination law, including existing legislation, would be unworkable if wholesale exceptions were allowed on the grounds of religious belief. LAWS PROHIBITING DISCRIMINATION AGAINST LESBIANS AND GAY MEN IN EC MEMBER STATES Denmark In 1987 a law was passed which protects lesbians and gay men from discrimination in the provision of public services and access to public facilities. In 1989 the Minister of Justice confirmed that this also applies to discrimination in employment. Finland A new law which comes into effect on 1 September 1995, will make it a criminal offence to discriminate on various grounds including sexual orientation. France It is a criminal offence to discriminate on the grounds of "sex", "family situation" or "moeurs" (morals, which includes sexual orientation) in employment or in access to goods and services. The maximum penalty is one year imprisonment and a fine of 20,000 francs. Discrimination in the terms and conditions of employment, including financial benefits for employees and their partners, is also forbidden. Ireland The Unfair Dismissals Act was amended in 1993 to make it illegal to dismiss someone on the grounds of their sexual orientation. The Employment Equality Act is currently being amended by the government to make it illegal for employers to discriminate in any other way on the grounds of sexual orientation. The Equal Status Bill, also in progress, will make it illegal to discriminate on the grounds of sex, race, marital status, parental status, or sexual orientation, in the provision of goods and services. The Netherlands There is a general prohibition against discrimination in Article 1 of the Dutch constitution, which provides that: "All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any grounds whatsoever shall not be permitted." The words "or on any grounds whatsoever" have been accepted by Parliament and the courts as prohibiting discrimination on the basis of sexual orientation. A law passed in 1991 amended anti-discrimination provisions already in the Penal Code to make it a criminal offence "in the performance of a public office, a profession or a business" to discriminate against anyone on the basis of "their heterosexual or homosexual orientation". A comprehensive law was passed in 1994 specifically prohibiting discrimination in employment on the grounds of sexual orientation. Spain The Spanish newspaper El Pais reported in April of this year that proposed amendments to the Spanish Penal Code have been approved which will make it illegal to discriminate on the grounds of sexual orientation. Sweden A 1987 law forbids public officials and private businesses to discriminate on the basis of homosexual orientation. Summary By the end of this year 7 of the 15 European Community member states will have laws prohibiting discrimination against lesbians and gay men. Britain is not only out of step in actively discriminating in its own armed forces, it is increasingly out of step in not having laws prohibiting any employer from discriminating. THE SOD BILL CLAUSE BY CLAUSE Preamble The Bill will make it unlawful to discriminate on the grounds of sexuality within employment and it extends the functions of the Equal Opportunities Commission to include such discrimination. Clause 1(1) This applies the provisions on direct and indirect discrimination in the Sex Discrimination Act (SDA) to include sexual orientation. Examples of direct discrimination would be the refusal to employ a man or a woman on the grounds of their sexual orientation. Indirect discrimination on the grounds of sexual orientation could include discrimination on grounds of HIV status, if it is not justifiable, or refusing to give promotion to a single person. The term "sexual orientation" is not defined because it already appears without definition in the Trade Union Reform and Employment Rights Act 1993. It refers solely to a person's sexual preference for people of the same sex, the opposite sex or either sex. It does not refer to paedophiles, whose sexual preference is determined by age rather than gender. Sexual orientation is widely used by many employers in their equal opportunity policies and has not given rise to any problems of definition. This Bill refers to actual or presumed sexual orientation so that persons presumed to be gay would also be covered. Clause 1(2) This provides that discrimination as defined above will be referred to in the Act as "discrimination on grounds of sexual orientation." Clause 1(3) This incorporates the provision in the SDA which allow a persons who has been victimised for taking action under the Act to bring a claim for discrimination. Clause 2(1) This clause refers to the Schedule, which sets out those sections of the SDA which will include sexual orientation. The Bill extends the employment provisions of the SDA and not those parts of the Act which relate to Education or to Goods, Facilities and Services. The Schedule incorporates the following provisions contained in Parts II, III, IV and V: 2. In Part II (Discrimination in the Employment Field): a) Section 6 (Discrimination against applicants and employees) subject to the omission of subsection (4) so that discrimination with regard to provisions in relation to death or retirement would be covered by the Bill. b) Section 7(2)(e) This would be the only genuine occupational qualification which would include sexual orientation and refers to cases where the holder of the job provides individuals with personal services promoting their welfare or education or similar personal services. (This would apply, for instance, to certain health education outreach posts working with gay men.) c) Section 9 (Discrimination against contract workers) subject to the changes to the genuine occupational provisions set out above. d) Section 10 (Meaning of employment at establishment in Great Britain). e) Section 11 (Discrimination in relation to partnerships). f) Section 12 (Discrimination by trade unions etc.). g) Section 13 (Discrimination by qualifying bodies). h) Section 14 (Discrimination by vocational training bodies). i) Section 15 (Discrimination by employment agencies). j) Section 16 (Discrimination by Manpower Services etc.) k) Section 17 (Discrimination by the police), save for sections 2 and 3 which could only apply to men and women. l) Section 18: Ministers of Religion are exempted from the provisions relating to sexual orientation as they are from the equivalent provisions of the SDA. 3. In Part III (Discrimination in other fields), section 35A (Discrimination by or in relation to barristers). 4. All of Part IV (other unlawful acts) including discriminatory practices, instructions to discriminate, pressure to discriminate, matters relating to the liability of employers and principals, and aiding such unlawful acts, except section 38(3) which refers to the use in advertisements of job titles which may suggest an intention to discriminate (e.g. postman). 5. In Part V (general exceptions from Parts II to IV) the following exceptions would also apply to sexual orientation: a) Section 43 (the provision of benefits under a charitable instrument). Clause by clause b) Section 45 (unequal treatment in relation to an insurance policy where the treatment was effected by reference to actuarial or other data on which it was reasonable to rely). c) Section 47 (allowing training bodies in certain circumstances to encourage lesbians and gay men to take advantage of opportunities for doing that work). d) Section 50 (indirect access to benefits). This section provides that discrimination in the provision of access to benefits, facilities and services is not exempt just because the benefits are provided by a third party. e) Section 52 (acts safeguarding national security). The SDA has now been extended to include the armed forces, and the provisions in this Bill would therefore also apply to the armed forces. However, under this section the government might argue that maintaining the ban was lawful because it was done for the purposes of safeguarding national security. Clause 2(2) This provides that the Secretary of State may by statutory instrument apply or disapply any specified provision of the Sex Discrimination Act. This provision would allow, for instance, those parts of the Act that deal, for instance with goods and services, to be covered by the sexual orientation provisions. Clause 3 This provides that the EOC shall have the same functions and powers in relation to discrimination on grounds of sexual orientation as it does in relation to discrimination between men and women and accordingly Part VI and part VII of the SDA is incorporated in the Schedule to the Bill. Clause 4 This clause provides that the Act shall come into force 6 months after it is passed.