What is harassment?
Under the Equality Act 2010 harassment refers to "unwanted conduct which violates someone’s dignity or creates an intimidating, degrading, humiliating or offensive environment."
An example: jokes and banter
Joan works in a restaurant and jokes are often made about her being trans and about LGBT people. These are made in Joan's presence and often in front of the company manager, who fails to challenge it. The general view among staff is that Joan shouldn't take these seriously as the jokes are meant in jest and are all part of the work culture where everyone is teased about something.
Some people may say this is just 'banter’ and not meant to upset anyone, but if an employee feels they are being targeted because of sexual orientation, gender identity or their perceived sexual orientation or gender identity and this makes them feel intimidated, degraded, humiliated or offended, then this behaviour can be defined as harassment and would be unlawful under the Equality Act 2010.
Harassment can include:
- Jokes or banter
- Insults or threats
- Unnecessary and degrading references to someone’s sexual orientation, gender identity or their perceived sexual orientation or gender identity
- Excluding someone from activities or social events
- Spreading rumours or gossip including speculating about someone’s sexual orientation or gender identity, or outing them
- Asking intrusive questions
- The Equality Act states that an employer is responsible for the behaviour of its employees. This means they need to take reasonable steps to challenge and prevent homophobic harassment.
An example: taking action when you're not 'out' at work
Anna is bisexual but not out at work. A colleague recently saw her leaving a gay bar in town and since then she has found biphobic graffiti written about her on the walls of a toilet. She has also overheard snide comments being made about bisexual people, but she feels she can’t challenge this directly without coming out.
The rules made under the Equality Act 2010 protect employees from discrimination and harassment on the basis of sexual orientation or gender identity even if that person’s sexual orientation or gender identity is not known or if that person is wrongly perceived to be lesbian, gay, bi or trans. The key element to look at is the behaviour itself, and the motivation for that behaviour. Here the employer should have in place a confidential mechanism by which she can challenge this kind of behaviour with management without having to come out.
Third party harassment (harassment from customers or service users) is no longer included in protections for LGBT people by the Equality Act. However, an employee may have a claim for direct discrimination if an employer fails to address homophobic, biphobic or transphobic comments while taking other issues, such as racial or sexist comments, seriously.