The EU's Equal Treatment Framework Directive requires organisations to have legislation in place to tackle sexual orientation discrimination by 2 December
The cases recently heard by the House of Lords in relation to claims brought by lesbian and gay workers against their employers captured the attention of the national press.
In Pearce v Governing Body of Mayfield Secondary School, the House of Lords held that the purpose of the Sex Discrimination Act 1975 (SDA) was limited to prohibiting discrimination on the grounds of gender, and did not extend to discrimination on the grounds of sexual orientation. In McDonald v Ministry of Defence, the Lords echoed this interpretation, stating that gender and sexual orientation are distinct personal characteristics, and the SDA therefore could not be used to protect gay rights.
This follows a string of cases by gay staff who have attempted to use the SDA as protection from discrimination in the workplace. The legislatory response over the past 20 years or so has been unsatisfactory, and consequently homosexual employees have had to endure discriminatory practices and attitudes.
This is about to change. The catalyst is the EU Equal Treatment Framework Directive, which requires member states to have legislation in place to tackle discrimination against sexual orientation by 2 December this year.
The UK Government has published draft regulations - the Employment Equality (Sexual Orientation) Regulations 2003 - to meet the Directive's requirements. These regulations are due to come into force on 1 December.
Sexual orientation is defined as a sexual orientation towards a person of the same sex, the opposite sex or both sexes. The regulations' objective is to prevent direct or indirect discrimination based on a person's actual or perceived sexual orientation. Furthermore, the regulations prohibit victimisation where a person is treated less favourably for bringing proceedings under the regulations.
Most importantly, the regulations prohibit harassment, which is defined as unwanted conduct on the grounds of sexual orientation with the purpose or effect of violating the dignity of an individual, or creating an intimidating, hostile or offensive environment. I believe a number of claims will be brought in this area as gay staff try to challenge the homophobic culture which often dominates the workplace.
The draft regulations have