When is sexual orientation discrimination lawful?
In certain circumstances, treating someone more or less favourably because of their sexual orientation may be lawful, but these are rare exceptions.
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Genuine occupational circumstances
In limited situations, it may be lawful for an employer to discriminate if there is a genuine occupational requirement for the jobholder to be of a particular sexual orientation.
Example
A charity delivering domestic violence services to lesbians, bisexual women, gay men and transgender people advertises for a gay caseworker to deliver services to its gay clients. The post is restricted to gay applicants because the charity believes that a particular sexual orientation is a genuine occupational requirement for the post. The charity considers that heterosexual men would not have an in-depth understanding of the cultural and domestic violence experiences of gay men. The charity restricts other caseworker posts to lesbian and bisexual women and transgender people for the same reasons. Other posts that do not require this kind of in-depth understanding, such as administrative posts, are open to people of all genders and sexual orientations. This type of discrimination could be lawful.
Example
A Church of England bishop blocked the appointment of a woman to a youth worker job funded by the church because she was a lesbian. The job involved working with teenage girls. The bishop felt that it was not appropriate to have a lesbian working with teenage girls. The recruitment panel had already decided that the woman was the most suitable candidate for the post, which was restricted to women. Her references were also excellent. The post was restricted to women as a genuine occupational requirement. The decision not to offer the post to a lesbian is direct discrimination on grounds of sexual orientation.
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Commercial goods and services
It is unlawful to turn away customers because of their sexual orientation. It is also unlawful to advertise in a way that implies that customers of a particular sexual orientation are unwelcome.
However, it is not unlawful to provide commercial goods and services that are likely to be of more interest to people of a particular sexual orientation than to others of a different sexual orientation.
Example
A travel company that organises holidays can target its services at lesbians, gay men and bisexual people. This is lawful discrimination.
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Organised religion
Some bodies or groups have a religious or belief-related purpose. Such bodies may have a legitimate need to limit membership or access to their activities to people who wholly or partly share their religion or belief.
The law recognises the need to avoid unnecessary and unjustifiable restrictions on people’s right to exercise their religious belief. For this reason, an exemption may be justifiable to cover the activities of religious organisations.
For example, a religious group may be able to justify restricting their membership to heterosexual people to comply with the doctrine of the organisation, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.
The religion or belief provisions of Part 2 of the Equality Act 2006 contain exceptions to make this possible.
Example
Religious adoption agencies are exempted until Christmas 2008 from the requirement not to discriminate against lesbian and gay couples who wish to adopt children. After that date it will be unlawful for them to discriminate against lesbian or gay couples who approach them for adoption services.
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Charities
It is generally unlawful for charities to discriminate on grounds of sexual orientation. However, if a charity has been established to provide benefits to people of a particular sexual orientation, and its rules (called a ‘charitable instrument’) make this clear, they can legally restrict their services in this way.
Example
A charity is established to promote equal rights for lesbian, gay men and bisexual people. It is lawful to restrict the activities of the charity in this way.
Example
A charity is established to support lesbians, gay men and bisexual people who experience hate crime. It is lawful to restrict the activities of the charity in this way.
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