KEY POINTS:
The UK Court of Appeal has decided a person does not need to be gay to be protected against homophobic abuse in the workplace. Thus, they are protected by the law even where they are teased for being something they clearly are not.
There is no case law on this issue in New Zealand and, although the statutory wording is different, this point could well be decided in the same way here.
In the UK, as in New Zealand, discrimination (including harassment) on the ground of sexual orientation is unlawful. So, to discriminate against or harass a gay or lesbian person because they are gay or lesbian breaks the law. So far, so good.
But what if the victim is not gay, but the perpetrator mistakenly thinks they are? Some would argue the victim should only be covered if they really are gay. In the UK, the law provides that discriminating against someone believed to be gay is unlawful, even if, contrary to the harasser's belief, the person is not gay.
This case takes it one step further - even where everybody in the workplace knows the victim is not gay, it is now unlawful (in the UK) to harass them as if they were gay. Why would anyone do such a thing, I hear you ask?
In this case, the employee, Stephen English, was a married man with three teenage children. His tormentors knew he was not gay and he accepted that they knew this and that nobody actually believed him to be gay. When his workmates found out that he had gone to boarding school and now lived in Brighton (home of a sizeable gay community), English was subjected to abuse about homosexuality. He was called a 'faggot' and was twice the subject of lurid comments in the in-house magazine.
He left his job and later brought a case for harassment against the company. Eventually it came before the Court of Appeal, which ruled in his favour.
The Court said his actual sexuality did not matter - "the calculated insult to his dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient" to bring his case within the law. "The incessant mockery ('banter' trivialises it) created a degrading and hostile working environment, and it did so on grounds of sexual orientation." The Court argued that the whole thing was about sexual orientation, regardless of whether he actually was gay.
Interestingly, the Court was divided - two out of three judges were in favour of English, and so he won, but the third judge disagreed. He said that the reason for the harassment was nothing to do with sexual orientation. The harassment "happened to take the form of 'homophobic banter' so called, which was thus the vehicle for teasing or tormenting [English]. In those circumstances sexual orientation was not the grounds of the conduct complained of."
All this shows that there are some quite complex arguments around whether people in this situation should be protected. I suspect, however, that the majority decision in English's favour is the more sensible. It becomes simply too difficult to apply the law consistently and fairly when you try to make distinctions between situations where someone is openly gay, is gay but has not declared their sexuality, is assumed to be gay but is not, and is known not to be gay (but is still harassed as if they were).
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
