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Sexual Orientation and Employment Law
Come out of the closet and get out of the workplace?
The merging of moral and legal issues is something which, almost as a matter of course, tends to generate controversy. With the passage of time, however, legal change often comes to reflect attitude and change in society. Homosexual law reform was a hotly debated issue in the 1980s and 1990s. In the event, change occurred to New Zealand's law in a number of different respects and now, some years on, most of that change is accepted as an ordinary part of our legislative framework.
A recent decision of the English Employment Appeal Tribunal gives us the opportunity to reflect upon legislative change in this country. The claimant in MacDonald v Ministry of Defence [2001] 1 ALL ER 620 was an officer in the Royal Air Force, and had worked as an employee in the English Military for 11 years. He made an application for a transfer (to be closer to a relative who was ill). In the course of that application he made a disclosure that he was homosexual.
By virtue of a Queen's Regulation applying to the Military the employee was compulsorily required to resign from the Air Force. He did so, but brought proceedings under English discrimination legislation, claiming that he had suffered unlawful discrimination and sexual harassment.
The central issue for the English Court was the interpretation of a relevant statutory provision preventing discrimination on the basis of "sex". There was no doubt that the provision was intended to apply to discrimination on the basis of gender: there was, however, argument concerning the application of the provision to discrimination on the grounds of sexual orientation. A subsequent issue arose as to an appropriate "comparator" to use in the event that the legislation did apply - it was argued that even if the legislation did apply the appropriate question for consideration was whether the claimant had been treated differently than a female homosexual would have been in the same situation.
The Tribunal held that the relevant provision did apply to questions of sexual orientation - in other words, it found that the claimant could use the legislation as the basis for a discrimination claim. Further, it held that the appropriate comparator was between the claimant - a male homosexual - and a female heterosexual - meaning that in determining whether the claimant was unfairly discriminated against the Tribunal asked whether a female heterosexual would have been treated in the same way in the same situation. The answer to that question was a resounding "no" - the Queen's Regulation would not have applied to require a female heterosexual to resign from employment.
The relevant New Zealand legislation concerning freedom from discrimination is the Human Rights Act 1993. Section 21 of that Act provides a variety of prohibited grounds of discrimination including sex (which includes pregnancy and child-birth), marital status and sexual orientation (which means a heterosexual, homosexual, lesbian or bi-sexual orientation). Employees in New Zealand have, since the introduction of this law, been able to rely upon the Human Rights legislation to bring claims of discrimination against their employers.
The leading case in this area in New Zealand is L v M Limited [1994] 1 ERNZ 123. That case concerned a claim by an employee that he had been "outed" by his employer through a workplace newsletter. Once identified, the employee had received abusive material and threats from unidentified people thought to be co-workers. The situation culminated in the employee's resignation and departure from New Zealand. He succeeded in bringing a claim against the employer for constructive dismissal and was awarded $32,000 in compensation (including $25,000 for humiliation and distress).
Interestingly, while a claim such as that made by the claimant in L v M Limited could be brought under the Human Rights legislation, it could not be raised by way of a personal grievance under the Employment Contracts Act 1991. That is because, as the Employment Tribunal found in Pooley v New Zealand Society for the Intellectually Handicapped Inc. (Unreported, Employment Tribunal, 4 April 1995, AT 102/95) the employment legislation did not provide a specific ground allowing a discrimination complaint to be made on the basis of sexual orientation. That position has now been remedied by the prohibited grounds of discrimination recorded at section 105 of the Employment Relations Act 2000. Those grounds, which mirror those provided in the Human Rights Act, include discrimination on the basis of sexual orientation.
This recent English decision, involving dismissal on the basis of sexual orientation, may cause New Zealand employers to ask "could it happen here?". The answer to that question is, as will be seen from the above commentary, "no".
