The American approach

Photo by Claire Anderson on Unsplash

Equal justice under law?

On Monday 15 June, 2020, the US Supreme Court issued a very important ruling (Bostock v Clayton County, Georgia (Case 17-1618)) that there can be no discrimination on the grounds of a person’s sexual orientation or that they have (or are undergoing) gender reassignment. An attempt by an employer to dismiss a gay person or a transgender person will be an example of unlawful discrimination.

Surprise, surprise you might say: what took the Supreme Court so long?

Such discriminatory behaviour, the US Supreme Court has now declared, is a breach of Title VII of the US Civil Rights Act 1964 (which was enacted by Congress as part of President Lyndon B Johnson’s Great Society programme).

And this is where the American approach to the issue of discrimination on the grounds of a person’s sexual orientation differs quite markedly from the UK.

Title VII of the Civil Rights Act 1964 states that it is:

unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.

From a British legal perspective, the word “sex” in Title VII of the American legislation is problematic when applied to discrimination involving a person’s sexual orientation.

Why?

Quite simply, in the UK, we would understand the word “sex” in discrimination law as applying to an individual’s gender whether they are male or female; or identify as being male or female.

A link to the US Supreme Court’s judgement can be found below:

https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

A link to an article on the BBC website about the judgement can be found below:

US Supreme Court backs protection for LGBT workers

Readers of this blog might not regard the US Supreme Court’s decision in Bostock v Clayton County, Georgia as in any way unusual. After all, in the United Kingdom and across the EU 27 member states, laws have been in place for a considerable period prohibiting unlawful discrimination on the grounds of sexual orientation.

Although the UK has now left the EU, the legislation protecting the LGBTI communities remains very much in place – by way of the Equality Act 2010 and other legislative instruments such as Article 19 of the Treaty on the Functioning of the European Union (primary legislation) and numerous Regulations and Directives (secondary legislation). The provisions in the Equality Act are, of course, an example of Westminster legislation and will remain hardwired into our legal system – for the time being at least.

The continuing status of European Treaty Articles, Regulations and Directives (in relation to the laws of the UK) will, of course, be up for debate when the Brexit transition period ends, as expected, on 31 December 20020.

The Equality Act 2010

Section 12 of the Equality Act 2010 addresses the issue of a person’s sexual orientation. This is a protected characteristic under the Act and means a person’s sexual orientation towards:

  • persons of the same sex
  • persons of the opposite sex
  • persons of either sex.

Sexual orientation discrimination: the historical perspective

Before 1 December 2003, in the United Kingdom, it was not unlawful to discriminate against an employee or potential employee by reason of that person’s sexual orientation. The situation changed dramatically with the introduction of the Employment Equality (Sexual Orientation) Regulations 2003. The relevant law now being contained in the Equality Act 2010, which prohibits less favourable treatment on the grounds of a person’s sexual orientation generally and such protection is no longer confined to the field of employment.

It should be noted, of course, that the Employment Equality Regulations were primarily brought into force to introduce protection for gay, lesbian and bi-sexual people. If, on the other hand, you were heterosexual, you were very unlikely to face discrimination in the work place due to your sexual orientation. 

The primer for this change to the law in 2003 was the European Union’s Employment Equality Directive (as a result of the Treaty of Amsterdam 1999) which meant that the UK, as a member state, had to introduce legislation in order to guarantee that people who had suffered less favourable treatment in relation to employment had a form of legal redress. The Employment Equality Regulations 2003 (and now the Equality Act) implemented this duty on the part of the UK.

Employment Equality Directive was limited in its scope because it applied (unlike the more expansive Racial Equality Directive) to just two sectors: employment and vocational training.

Sexual orientation not sex

It is perhaps now instructive to examine the failure of UK laws to provide protection to individuals who suffered sexual orientation discrimination prior to the Employment Equality Regulations coming into force.

In Macdonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School [2003] UKHL 34, the House of Lords held that discrimination on the grounds of a person’s sexual orientation was not covered by existing UK equality laws (specifically the area of sex or gender discrimination then contained in the Sex Discrimination Act 1975).

Macdonald was dismissed from the Royal Air Force because he was homosexual or gay. Pearce, a teacher, had suffered an ongoing campaign of harassment while working at Mayfield School because she was a lesbian. Both Macdonald and Pearce claimed that the treatment that they had suffered was an example of direct sex discrimination. 

Both claims failed because the treatment suffered by both individuals was an example of direct discrimination on the grounds of their sexual orientation – not because of their sex or gender. At the time of this appeal to the House of Lords, discrimination in employment on the grounds of a person’s sexual orientation was not prohibited by UK equality laws.

In its judgement, the House of Lords drew attention to the ironic fact that a new equality law prohibiting sexual orientation discrimination would soon be introduced, but this admittedly would be too late for Macdonald and Pearce! Small comfort indeed!

Had the cases occurred today, the employers would be liable for direct discrimination on grounds of sexual orientation in terms of Section 12 of the Equality Act 2010.

The perspective of the Court of Justice

Before the European Union’s Employment Equality Directive, the Court of Justice had been reluctant to lay the basis for greater legal protection in relation to a person’s sexual orientation.

In Case C-249/96 Grant v South West Trains Limited [1998] ECR I-621, Lisa Grant had argued that the failure by her employer to extend a concessionary ttavel scheme (worth £1,000 per year) to Gillian Percey, her same sex partner, with whom she had been in a stable relationship for more than 2 years, was an example of unlawful, less favourable treatment. The employer permitted heterosexual spouses (including common law spouses of more than 2 years standing) to enjoy the benefit of the travel scheme. Grant’s predecessor in the post had been male and his female partner had benefited from the travel scheme.

Grant chose her male predecessor as her comparator as part of an equal pay claim. It is important to appreciate that Grant was bringing her claim as a sex or gender discrimination legal action. Although Advocate General Elmer was broadly supportive of the couple’s claim that they had suffered discrimination under what is now Article 157 of the Treaty on the Functioning of the European Union and the Equal Treatment Directive, the Court of Justice decided not to follow this Opinion.

The Court stated that two men in a same sex relationship would have been treated in exactly the same way as Grant and Percey by the employer. South West Trains did not wish to extend concessionary travel to same sex partners of employees and, currently, there was nothing unlawful about this policy as neither UK or EU equality laws prevented discrimination by reason of a person’s sexual orientation. At the time that this case was decided, it should be appreciated that same sex relationships in the UK were not legally recognised in terms of civil partnership or marriage – such legal recognition was still some way away.

To come back full circle, the European Union would, of course, later redress the situation with the Employment Equality Directive which led to the introduction of the Employment Equality (Sexual Orientation) Regulations 2003 into UK law. Had these Regulations been in force when Lisa Grant commenced her legal action against South West Trains, these would have given her and Gillian Percey significant legal protection from the discriminatory action of her employer. Admittedly, this was scant consolation for them and thousands of other same sex couples who experienced less favourable treatment in employment.

The European Convention on Human Rights

The provisions of the Convention have been implemented into Scots law via the Human Rights Act 1998 and the Scotland Act 1998 which means that an individual will enjoy substantial legal protection in relation to his or her sexual orientation. Article 8 of the Convention places a duty on a public authority to have respect for a person’s private life. Fuirthermore, Article 14 of the Convention confers a general right on individuals not to be subjected to discrimionation. Employers who are defined as a public authority will have to ensure that they comply with these provisions. Private employers will also have to be aware of these provisions because there is nothing to stop an employee bringing a discrimination claim against the UK Government if some loophole exists which permits the employer to behave less favourably towards them on the grounds of their sexual orientation.

Interestingly, in Macdonald v Advocate General [2003] (discussed above), the employee did attempt to argue that his dismissal by the Royal Air Force, by reason of his sexual orientation, was a breach of the European Convention, but this argument failed because the Convention had not yet been implemented by the Westminster Parliament.

Today, of course, Macdonald would have a very strong claim against his employer for the treatment that he had suffered. Although the war may ultimately have been won, this was a battle that the unfortunate Macdonald would lose.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/05/25/the-love-that-dared-not-speak-its-name/

https://seancrossansscotslaw.com/2020/02/02/the-only-gay-in-the-village/

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 16 June 2020

No vote for you if you’re from the EU!

Photo by Element5 Digital on Unsplash

On 23 June 2016, the British electorate voted to leave the European Union. Almost 3 years later, the UK remains a member state of this organisation – despite the fact that 31 March 2019 was supposed to be “Brexit Day” as laid down in the European Union (Withdrawal) Act 2018.

This date has now been pushed back to 31 October 2019 by agreement with the other 27 member states.

As I have stated in previous blogs, while the UK remains an EU member state it must continue to comply with its membership obligations.

This has meant that the UK had to hold European Parliamentary elections on Thursday 23 May 2019 – something which the British Government had hoped to avoid.

This was not the only controversy which dogged this election: a large number of European citizens reported that they had been denied the right to vote last Thursday. Was this a case of the conspiracy or cock-up theory? Probably the latter, but it has meant that a lot of people who should have been allowed to exercise their democratic right were prevented from doing so last Thursday. A number of reasons for this chaos have been suggested: lack of preparation by electoral officials; incomplete paperwork; and a lack of clarity from the UK Government.

The Maastricht Treaty 1992 (official title: the Treaty on European Union) established the concept of a common European citizenship. Part of this would entail the right of European citizens living in another member state to participate in certain elections.

EU citizens ordinarily resident in the UK, and in Scotland particularly, are entitled to vote in council, Scottish Parliament and European Parliament elections. In 2014, the Scottish Government also permitted EU citizens to participate in the Scottish Independence Referendum.

In order for these rights to be implemented, the Representation of the People Act 1983 had to be amended by the Westminster Parliament in order to comply with our European legal obligations. As a point of interest, all the other member states would have had to amend their domestic legislation governing elections to implement the rights given to European citizens by the Maastricht Treaty.

Extending the right to vote in national, general elections was opposed by many member state governments at the time of the negotiations which led to the Maastricht Treaty. It has always been the case that EU citizens living in the UK have not been allowed to cast a vote in a British General Election. This was taking the concept of shared European citizenship just a little too far – even back in the heady days of the Maastricht Treaty when Brexit seemed unthinkable.

Admittedly, the UK and the Republic of Ireland have, for a very long time, permitted their citizens to vote in each state’s elections. Ironically, this arrangement will continue to function even after Brexit has been achieved.

The failure to ensure that European citizens were able to vote in last Thursday’s elections might also represent a potential breach of Article 18 of the Treaty on the Functioning of the European Union i.e. no discrimination on the grounds of a person’s nationality. If this is the case, expect the European Commission to initiate enforcement proceedings, in terms of Article 267 TFEU, against the UK for failure to uphold the civil and political rights of European citizens living in this country.

A link to a report about EU citizens being denied their right to vote in the European Parliamentary elections can be found below:

EU citizens in UK complain of being denied vote in European elections
http://news.sky.com/story/eu-citizens-in-uk-complain-of-being-denied-vote-in-european-elections-11727020

Copyright Seán J Crossan, 25 May 2019

Inequality in the UK

Photo by Søren Astrup Jørgensen on Unsplash

So much for equality of opportunity in 21st century Britain. It looks as if this country is becoming more unequal, if the latest research is to be believed.

True, we have legislation such as the Human Rights Act 1998; the Equality Act 2010; and EU legal principles such as (Article 157) of the Treaty on the Functioning of the European Union (TFEU) which embed anti-discrimination laws. Parliaments and the EU can pass all manner of laws, but this of itself does not guarantee the conditions of true equality to flourish. Equal pay laws have been in force since 1975 in the UK, but tell that to Glasgow City Council female employees who had to struggle every step of the way to win their battle for pay equality in January 2019.

Since the inception of the Scottish Parliament in 1999, Scottish Governments have introduced various initiatives to tackle the scourge of child poverty. The latest attempt can be found in the Child Poverty (Scotland) Act 2017 which aims to combat some of the causes of this problem by 2030. In a recent blog (Food for thought? published on 16 April 2019) I discussed the suggestion, in a report by the Scottish Human Rights Commission, that the right to food security should be recognised as a fundamental human right. This proposal was made against a background of increased use of food banks in Scotland.

Everywhere you go organisations proclaim their commitment to equality and diversity and, if you take things at face value, you might allow yourself to be fooled into thinking that great progress is being made.

We can have a plethora of events such as Black History Month; Disability Awareness Month; World AIDS Day; International Women’s Day; and Day Against Homophobia, Transphobia and Biphobia, but if they are to be judged in any way successful they must lead to real change.

And yet … something is clearly not working when the UK Government’s own Social Mobility Commission concludes (in its latest Report) that levels of inequality in this country remain stubbornly persistent.

Now, the Institute of Fiscal Studies has weighed in with its own take on the matter. Professor Sir Angus Deaton will chair a Review which will examine the causes of inequality in modern Britain. The Institute of Fiscal Studies, a leading UK Think Tank, has stated that rising levels of inequality and exclusion threaten the very foundations of democracy in this country.

In April 2010, Nick Clegg, then Leader of the Liberal Democrats, trumpeted his Party’s manifesto commitment which would ensure that fairness was ‘hardwired’ into British society. I wonder if, from the comfort of his executive office at Facebook HQ in Silicon Valley, Mr Clegg now sees his time as UK Deputy Prime Minister (2010-15) as a wasted opportunity?

In her column in last Saturday’s edition of The Independent, Janet Street Porter spoke of the lack of diversity at the BBC as a working class person

… who managed (against all the odds) to make a living out of working for the BBC, an organisation where (even in 2019) the over-educated and middle class dominate. We’re proof that in modern Britain, social mobility still moves at a glacial pace. …

… For all the BBC trumpets its ethnic, gay and gender-fluid presenters, one category is conspicuously absent on the radio and television – white working class people.”

This inequality can be traced from “birth to work” according to the Social Mobility Commission’s findings:

“In this our sixth State of the Nation report we lay bare the stark fact that social mobility has stagnated over the last four years at virtually all stages from birth to work. Being born privileged in Britain means that you are likely to remain privileged. Being born disadvantaged, however, means that you will have to overcome a series of barriers to ensure that you and your children are not stuck in the same trap.

At a time when our country needs to be highly productive and nimble we impede our own progress as a nation if we do not maximise the talent of all our citizens – especially those that start the furthest behind. We fail if we do not make it possible for every individual to have choices about where they go and what they do in life.

This report shows that more needs to be done to support the most vulnerable. Our analysis finds that, too often, well intentioned policies fail to reach those who would benefit most, while cuts to other provisions disproportionately impact the most vulnerable.

Clearly a lot still has to be done to make the UK a fairer society.

A link to the Social Mobility Commission’s Report can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/798404/SMC_State_of_the_Nation_Report_2018-19.pdf

A link to the Institute of Fiscal Studies’ website can be found below:

Home

Postscript

Another facet of inequality in the UK was revealed by Sky News on 2 July 2019. A survey revealed that LGBT workers were more likely to be paid less compared to their straight colleagues and were still afraid of revealing their sexual orientation in the work-place:

LGBT+ workers earn less and are still afraid to come out – survey
http://news.sky.com/story/lgbt-workers-earn-less-and-are-still-afraid-to-come-out-survey-11752927

Copyright Seán J Crossan, 13 May & 2 July 2019