The Independent | Firms plan gay audit to avoid discrimination claims By Robert Verkaik, Legal Affairs Correspondent:
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.
Wow. I mean ... wow.
Britain is clearly a very different sort of place.
Frankly, the companies' interpretation of the law makes no sense. If the company doesn't officially know that someone is gay, how can they possibly discriminate on that basis? Surely "ignorance is no defence" doesn't mean "Not knowing that someone is gay is not defense" but instead that not knowing about the harassment is no defense. Logically, if someone is being harassed because the harasser thinks they're gay, whether or not the victim actually IS gay is utterly and absolutely irrelevant.
Let's check out the act itself, shall we? Let's shall.
Statutory Instrument 2003 No. 1661: The Employment Equality (Sexual Orientation) Regulations 2003
The regulations themselves are quite extensive, covering roughly 90 printed pages, depending on your browser, printer, and paper size, of course. Interestingly, Northern Ireland is excluded. The language is about as tortured as only politicians can make it -- although, that said, in most sections the act is relatively clear in its intent. RELATIVELY.
The definition of "sexual orientation" itself is about as comprehensive as it's possible to get.
Interpretation
2. - (1) In these Regulations, "sexual orientation" means a sexual orientation towards -
(a) persons of the same sex;
(b) persons of the opposite sex; or
(c) persons of the same sex and of the opposite sex.
The act covers discrimination by straights against gays, gays against straights, and anybody against bisexuals. (Transsexuals are not specifically covered within the act because that isn't a sexual orientation per se; they're covered under the Sex Discrimination (Gender Reassignment) Regulations 1999.) A vast portion of the rest of the body of the act is dedicated to explaining exactly to whom it applies based on occupational area, detailing specific occupational areas and how they are covered; it seems fairly excessive, but that may have to do with requirements of British law.
Exemptions to the requirements of the act exist for organized religion and where "being of a particular sexual orientation is a genuine and determining occupational requirement" -- for the most part, it looks like these would be opportunities where British companies place personnel into other countries where gay sex is illegal, such as British Petroleum sending someone over to Saudi Arabia, for example -- or, until this past June, Kansas or Utah or places like that. Curiously, in some cases, organized religion is not exempt from the requirements of the act, but it's completely unclear what those circumstances would be.
Regarding liability, the act is actually relatively clear, again:
Liability of employers and principals
22. - (1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of these Regulations as done by that other person as well as by him.
(3) In proceedings brought under these Regulations against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.
In other words, ignorance of the particular acts of harassment is no excuse. Whether they were committed by or against a gay person is utterly irrelevant under the terms of the act, especially since the act was specifically drawn to cover straights, gays and bisexuals. The companies might as well take a census of only all their straight employees; as far as the act goes, it would be just as effective.
Interestingly the Advisory, Conciliation and Arbitration Service (ACAS) Draft Guidance Document being cited as a reason to perform such an audit does not actually quite say that employers should do any such thing. What it does say is this:
4. Know Your Staff
There is no legal requirement to keep information on how staff groups are made up (gender, ethnic groups, those with disabilities) but it is considered good practice. Such information helps organisations to make sure their equality policy is working to the benefit of all concerned and to test whether recruitment policies are reaching a wide audience reflecting the local community.
Organisations may consider whether to ask a question about sexual orientation on their equal opportunities questionnaire. It is perhaps unlikely that this will give an accurate picture as many people will see the question as an invasion of privacy and staff are under no obligation to give such information. However, some people do see the inclusion of such a question as an indication of the organisation's positive attitude to ward equal opportunities [...] If organisations decide to include sexual orientation in their equal opportunities monitoring processes, staff should be told how it is intended that such information be used. Staff should be assured of confidentiality and informed that they are under no obligation to give such information.
Of course, "organisations" being what they are, if the question exists, there will be heavy pressure for people to answer it. Organisations will feel like they need to collect the information borh for self-protection -- which is clearly inaccurate -- and because at some point the government is likely to ask for that sort of information -- which, frankly, is fairly likely, governments being information addicts. People being what they are, anyone who declines to give the information will be assumed to be gay.
Interestingly, even asking this question may contravene Article Eight of the European Convention on Human Rights. So at the moment, with peculiarly unclear and apparently inaccurate guidance, British companies are confronted with the apparent conundrum of not asking the question -- in which case they feel they may be opened to lawsuits for discrimination -- or asking the question -- in which case they're opened to lawsuits for invasion of privacy.
Posted by iain at August 19, 2003 01:36 PMComments
