What is harassment?
Harassment refers to unwanted conduct which violates someone’s dignity or creates an intimidating, degrading, humiliating or offensive environment.
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 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
Some examples of harassment:
Case example 1 - Homophobic and biphobic jokes and banter
Tony works in a restaurant and jokes are often made about him being gay or about gay people. These are made in Tony’s presence and often in front of the company manager who fails to challenge it. The general view amongst staff is that the jokes are banter and part of the work culture where everyone is teased about something.
Some people may say this is “just banter” and that the comments are not meant to upset anyone. However, if Tony feels he is being targeted because of his sexual orientation or his perceived sexual orientation, and this makes him feel intimidated, degraded, humiliated or offended, this behaviour can be defined as harassment and would be unlawful under the Equality Act 2010.
Case example 2 - Taking action when you're not 'out' at work
Jason is bisexual but not out at work. A colleague recently saw him leaving a gay bar in town and since then he has found homophobic graffiti written about him on the walls of a toilet. He has also overheard snide comments being made about gay people but he feels he can’t challenge this directly without coming out.
The rules made under the Equality Act 2010 protect people from discrimination and harassment on the basis of sexual orientation even if that person’s sexual orientation is not known or if that person is wrongly perceived to be gay. The key elements to look at are the behaviour and the motivation for that behaviour. His employer should have in place a confidential mechanism by which he can challenge this kind of behaviour with his management without having to come out.
Case example 3 - gender identity
Jenny is a flight attendant. She feels very uncomfortable wearing skirts and dresses, and therefore agreed with her employer that she would be able to wear trousers as part of her uniform - which is normally only the male flight attendants wear. She recently went on holiday, and when she came back discovered that there were rumours and gossip being spread that she had taken time off to go for "a sex-change", and she finds the colleagues are whispering and sniggering behind her back.
Although Jenny does not identify as trans, she is protected under the Equality Act 2010 on the basis of "perceived gender reassignment". The key elements to look at are the behaviour and the motivation for that behaviour. If Jenny feels she is being targeted because of perceived gender reassignment, and this makes her feel intimidated, degraded, humiliated or offended, this behaviour can be defined as harassment and would be unlawful.