Firms plan gay audit to avoid discrimination claims

[DinoBora]

Some of Britain's biggest employers are to conduct gay and lesbian audits of their staff to try to avoid compensation claims for discrimination brought under laws that come into force this year.

The gay rights group Stonewall and the CBI report a rush of inquiries from companies and public bodies planning to use monitoring to identify how many gays and lesbians they employ. The move has been prompted by guidance from the conciliation service Acas and the Government, warning businesses that ignorance will be no defence to a claim based on the new grounds for sexual orientation discrimination.

The merchant bank JP Morgan is among City employers that intend to ask staff their sexual orientation before the regulations become law. Eversheds, one of Britain's biggest law firms, has set up an independent review committee on the legislation and is considering finding out how many gay and lesbian staff it employs. BT Group says "the jury is still out" on whether it will follow suit. The London Fire Brigade has put the question to its 7,000 staff, who answered anonymously.

Under the legislation, the Employment Equality (Sexual Orientation) Regulations 2003, an employee can claim for unlimited compensation for harassment, victimisation or unfavourable treatment at work.

The law builds on the sex and race relations legislation from the 1970s, which has given rise to record compensation payouts in the City. The Acas guidance, drafted with the Department of Trade and Industry, says: "Organisations may consider asking a question about sexual orientation on their equal opportunities questionnaire ... [and] wish to consider seeking specialist assistance concerning the expert monitoring in this sensitive area." The guidance warns employers that a complainant need not be gay or lesbian. Heterosexual workers made the butt of gay or lesbian jokes can also win compensation.

The moves to monitor staff in an attempt to identify individual gays and lesbians have been criticised by civil liberty groups and lawyers. A spokes-woman for Stonewall said: "A lot of employers have contacted us about monitoring their workers but this can be counter-productive if people do not feel comfortable about outing themselves in the workplace because the climate is not right and they don't think they will get the right response."

Lawyers said it may be a breach of the right to a private life, under Article 8 of the European Convention on Human Rights, to require employees to disclose sexual orientation.

Neil Bennett, head of employee relations at the CBI, said it had lobbied the Government for clear guidelines on what constituted discrimination, harassment or victimisation for sexual orientation. "Employers need to be sensitive about sexual orientation, especially if they decide to ascertain what proportion of their staff are gay or lesbian. But it will be difficult to introduce measures to cope with an issue which is largely hidden. If the guidance is not right, there will be a potential explosion of unnecessary tribunal cases."

Robert Verkaik 19/08/ 2003

[font=century gothic]independent[/font]

ps:/ marasmus that's the only appropriate word I find for this situation

[LenochkaO]

<sigh> Yet again the British government introduces legislation without thinking it through properly. This is likely to be hugely counter-productive - I'd feel very uncomfortable having to disclose my sexual orientation to my employer (and I'm straight), no matter how well-meaning the intention. I foresee cases in which people refuse to disclose their orientation on an official basis and the companies turn around and say "Well, don't come running to us if you suffer discrimination." A system like this is so open to abuse.

Or is it just me?

[Charles]

I'm missing something here. How does knowing how many of any group you have in your company protect you from anything? Statisticly, the office I work for has too many gays, and women, while the boss is male and straight. However, when you consider the field (clinical psychology at a university), the numbers make perfect sense.

If a company treated an employee unfairly when his or her sexual orientation was unknown, isn't it still unfair treatment once it IS known?

If asked this question at work, I wouldn't answer on the grounds that the answer shouldn't make a damn bit of difference.

[LenochkaO]

Originally posted by Charles
I'm missing something here. How does knowing how many of any group you have in your company protect you from anything?

The British government frequently ties itself up in knots with its legislation, concentrating more on the letter of the law than the spirit in which in which it's enforced. What, I think, the government and its anti-discrimination organ are trying to do is prevent companies being able to say "Well, we didn't know they were gay." and using it as a get-out clause if an employee takes them to court over what might be described as "institutional homophobia" within the company, e.g. if someone made a discriminatory/homophobic joke/comment and a gay employee (who might not necessarily be out within the office) took offence and decided to take them to tribunal.

If a company treated an employee unfairly when his or her sexual orientation was unknown, isn't it still unfair treatment once it IS known?

Absolutely. However, any company being sued for unfair dismissal or the like will get hit twice as hard if it is suggested (and the tribunal accepts) that it was based on sexual orientation rather than just bog-standard unreasonable behaviour/irrational dislike/unprofessionalism on the part of the employer.

The thing with discrimination legislation until now is that it's been based on visible differences - you don't need an employee to tell you that she's female or s/he's from an ethnic minority. However, someone's sexual orientation is not generally immediately apparent in the workplace.

There have been lots of cases about unfair dismissal/treatment due to sexism and racism, but I can't think of many based on sexual orientation. The only one that springs to mind was a reasonably high-profile case a few years back (Tony Blair's wife was representing the woman making the complaint) in which a lesbian employee of one of the train companies took her employers to court because they refused to extend the same right of free/discounted travel on their trains to her partner that they did to spouses (and possibly common-law spouses - I think that must have been the case, as that's blatantly discriminatory). I seem to recall that she won (Cherie tends to win most of her cases).

Hopefully the European Convention on Human Rights will nip this one in the bud, given that it's been incorporated into British law. By all means stamp out discrimination, but there must be better ways than this...