Sexual Orientation Discrimination at Work

by Nóra Cashe, Litigation Manager at Peninsula Ireland

Despite recent advancements in rights for the LGBTQIA+ community in Ireland, sexual orientation discrimination at work remains a rife issue.

Indeed, recent statistics show that over half of the workers in Ireland who identify as LGBTQIA+ have experienced discrimination in the workplace.

So, what does Irish law say about workplace discrimination based on sexual orientation?

Which Act protects against sexual orientation discrimination?

The Employment Equality Acts 1998-2015 protects employees against unequal treatment and discrimination in the workplace.

This Act affects the employer, too. Indeed, under the Act, employers may be held vicariously liable for the discriminatory behaviour of their employees.

So, it’s vital for employers to familiarise themselves with the Act, as well as what behaviour it aims to address.

What are the 9 grounds in the Act?

The Act defines discrimination as one person being treated less favourably than another based on any of the nine grounds below:

• Gender: meaning man, woman or transgender
• Civil status: meaning single, married, separated, divorced, widowed people, civil partners, and former civil partners
• Family status: meaning the parent of a person under 18 years or the primary carer or parent of a person with a disability
• Sexual orientation: including gay, lesbian, bisexual and heterosexual
• Religion: meaning religious belief, background, outlook or none
• Age: so long as it’s over the legal school-leaving age (16 years of age)
• Disability: including people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions
• Race: including race, skin colour, nationality or ethnic origin
• Membership of the Traveller community.

What happens if an employee feels that they’re a victim of discrimination?

First, an employee must establish they’ve been treated less favourably in the workplace based on one of the nine grounds set out in the Act.

If established, the employer may be held vicariously liable for the discriminatory behaviour of the offending employee.

A successful claim for discrimination by an employee under the Act can result in serious financial and reputational damage to the business.

What could be classed as sexual orientation discrimination?

There are significant costs and risks for employers that fail to ensure that their workplace is inclusive and respectful of LGBTQIA+ employees.

It’s also important for employers to be aware of ways this discrimination could present itself.

For example, most workers surveyed recently mentioned “microaggressions” as examples of sexual orientation discrimination. These could be subtle, sometimes unintentional, remarks or actions.

So, what could be examples of unfair treatment of LGBTQIA+ employees? They can include:

• Derogatory remarks relating to sexual orientation
• Bullying and abuse relating to sexual orientation
• Being “outed” in the workplace without consent.

In the case of Marron –v- Board of Management St Paul’s National School (DEC-E2015-121) a primary school was ordered to compensate a teacher who had been discriminated against on the grounds of her association to her son being gay.

The school principal commented that the complainant’s son “had spent an afternoon shopping for clothes and that a ‘normal boy’ would not do this”.

The Equality Tribunal ruled that this amounted to discrimination by association on the grounds of sexual orientation and that the employee had been treated less favourably than other employees would have been in a comparable situation.

Have more questions about sexual discrimination at work?

Discrimination can be a complicated issue for employers to handle.

For example, did you know that there are various types of discrimination, including direct, indirect, victimisation, harassment, citation, and by association?

This – and more – must be considered when assessing employee behaviour and when facing a claim.

About the author

Nóra Cashe qualified as a Barrister in 2008 practising in the area of Criminal law for some years, before joining the Peninsula team in 2014. During her time at the Bar, Nóra also volunteered with the Free Legal Aid Centres and was a member of the Irish Criminal Bar Association.

Nóra is the Litigation and Compliance Manager at Peninsula, leading a team of experienced Litigation Consultants in both ROI and NI. Nóra also represents Peninsula clients at Adjudication hearings, Conciliation and Mediation meetings before both the Workplace Relations Commission and the Labour Court.

Nóra has extensive experience in the area of Employment Law and HR Policies and procedures, authoring many articles for Peninsula and providing training to other departments within the Group.

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