News
"Gay" banter not discriminatory
First published in The Independent, 5 March 2008.
It is often interesting to reflect upon the way in which the law develops in accordance with changing societal norms.
Thirty or forty years ago, for example, it might have been regarded as a "scandal" for a Member of Parliament to be "outed" as a homosexual. The prevailing mores of the time simply regarded it as inconsistent for a homosexual person to be entrusted with a position of public responsibility.
That attitude slowly changed, of course, to the point where homosexuality is recognised as a normal incident of society (although, of course, there may remain those who would not openly embrace it as such).
In reflection of this changing attitude (and perhaps leading it) discrimination laws changed to recognise that harassment of a person on the grounds their sexual orientation is not acceptable.
Perhaps one of the barometers of this social change was the way in which "gay" humour began to enter the media.
Comedians such as Julian Cleary traded upon their stereotypical homosexuality to get a laugh from an audience.
It is possible, of course, to have differing views about the appropriateness of this humour - and, indeed, whether it is funny in the first place. It enshrines stereotypes which may be hurtful to some people. On the other hand, most people are not above having a laugh at themselves.
But what if this type of humour spills into the workplace?
Well, if co-workers were to chastise a homosexual workmate by levelling this sort of stereotypical humour, a harassment complaint could arise.
But what if the employee who was the target of the humour was not gay - and was, in fact, known to be heterosexual by all those concerned? Can a "straight" worker complain about harassment by being subjected to homosexual banter?
This question was recently considered by the English Employment Tribunal in English v Thomas Sanderson Blinds Limited (Unreported, Employment Appeal Tribunal, London, 20 February 2008).
English worked alongside a number of male work colleagues who, for many years, had subjected him to sexual innuendo. The basis of this apparent comedy had its origins in the fact that English had attended a boarding school, and that he had formerly lived in Brighton (which presumably has some association with a homosexual lifestyle). Put simply, English's workmates enjoyed joking that these aspects of his background meant that he was probably gay.
But English wasn't gay. And his workmates knew and acknowledged this. The banter was just that - a "jibe" directed at English, knowing that there could be no truth to underlie the innuendo.
English did not enjoy the humour. At some point, his tolerance was broken, and he made a complaint about his employer, claiming that he had been subjected to harassment contrary to the relevant anti-discrimination law - and that his employer had failed to protect him.
The Appeal Tribunal rejected English's case. It rationalised that the anti-discrimination law existed to protect employees who were actually homosexual from being harassed as such. Accordingly, it was not open to a heterosexual employee to claim harassment for banter suggesting that he might be gay.
So what would happen in New Zealand?
Our human rights legislation provides an almost identical provision: an employee is entitled to work in a workplace free from discrimination on the basis of sexual orientation.
And, on that basis, it is likely that a similar conclusion would be drawn in a case such as this. Put simply, this is not a situation in which an employee has been subjected to harassment on the basis of his sexual orientation. To the contrary, the humour (such that it was) was on the basis of an acknowledgement by all concerned that he was not of the sexual orientation being lambasted.
But that may not be an end to the matter.
While the case might not be one of discrimination under the human rights legislation, any form of cruel banter could conceivably constitute an employment relationship problem so that English might have been able to bring a case against his employer under the Employment Relations legislation.
The outcome might be the same if, for example, the cruel banter had been in the form of unwelcomed practical jokes over a prolonged period.
This case serves to illustrate some of the limitations of the human rights legislation - or, perhaps more accurately, the limitations of the English employment law system for claimants when compared to New Zealand law.
