Work & Sexual Orientation Discrimination
Discrimination on the 'sexual orientation ground' happens where there is less favourable treatment of one person compared to another person because they are of different sexual orientation.
‘Sexual orientation’ is defined as heterosexual, bisexual or homosexual orientation.
Am I protected?
You are protected by law if you are:
- a full-time, part-time and temporary employee;
- a public or private sector employee;
- a self-employed contractor or partner in a partnership;
- an office-holder in state or local authorities
- seeking work through employment agencies;
- a trainee doing vocational training;
- a member of a trade organisation, union or a professional body;
- doing paid work experience.
Note: volunteers are not covered.
The law covers many types of situations, such as:
- job advertising and access to employment (e.g. interviews);
- terms and conditions of employment, such as equal pay;
- promotion, dismissal, classification and re-grading of posts;
- pensions and retirement;
- collective agreements, for example through a union.
Am I entitled to equal pay?
The Employment Equality Acts provide for equal pay for like work.
'Like work' is defined as work that is the same, similar or work of equal value.
It is a term of everyone’s contract of employment that there is an entitlement to equal pay. Equal pay claims can be taken on any of the nine specified grounds (Age, Civil Status, Disability, Family Status, Gender, Membership of the Traveller Community, Race, Religion, Sexual Orientation).
What does equal pay mean?
The EEA refer to ‘remuneration’, which is broader than ‘pay’. It is defined in section 2(1) EEA as including ‘any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment…’.
The definition is wide and includes, for example, allowances, bonuses and eligibility for same, performance payments, and non-cash benefits such as cars and mobile phones.
What is like work?
Under section 7 (1) EEA 'like work' is work that:
- is performed in the same or similar conditions as another employee, or is interchangeable with the work of another employee, or
- is of equal value to the work performed by another employee.
The equal value provision allows dissimilar jobs to be compared and to be considered 'like work'.
What must I establish to take an equal pay case?
The onus of proof is on the person making the complaint to establish the basic facts. The person must identify a comparator with whom they are performing like work. A comparator is another person employed by the same or an associated employer.
They must also establish the discriminatory ground, and the pay differential. If these elements can be established, the employer must then demonstrate that the difference in pay is on grounds other than a discriminatory ground.
Therefore, no time limit for equal pay claims is provided in the EEA and so the six-year limitation period provided under the Statute of Limitations 1957 in respect of breach of contract is the appropriate time limit.
A claim for equal pay must be made within six years of the disparity (or difference) in pay.
What should I look out for in the hiring process?
Employers have to ensure that hiring requirements and interviews do not discriminate against people, even unintentionally.
Example An employer refuses to hire someone on the basis of their sexual orientation.
Legitimate aim
Employers have to show that every condition of employment is justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. However, employers should ensure that any qualities required of an employee are clearly linked to the job in question.
Transparency
Employers should be able to show that there was no discrimination at any point of the hiring process. An employer may be discriminating against you if there is a lack of transparency in the process, such as unclear selection criteria.
Good practices include:
- Interview and selection procedures are clear and transparent, and comply with the organisation's policies;
- Interview notes and minutes are retained;
- Members of the interview panel are independent of the employer, have extensive experience and are trained in the requirements of anti-discrimination law;
- A pre-interview meeting is held at which the panel draws up questions relating to key areas;
- Marks are allocated for critical attributes required for the duties of the position based on objective pre-determined criteria;
- People with disabilities are reasonably accommodated to allow them apply for the job. For example, providing suitable technology for an interview.
What about promotions?
All of the criteria in relation to hiring, selection, interview applies equally to internal promotion.
Discrimination will occur when an employer omits to offer an employee access to promotion opportunities in the same manner as other eligible employees.
What are my rights if I am dismissed?
Employers cannot dismiss you because of your sexual orientation.
Constructive dismissal happens when an employers feels forced to resign after their employer makes their work-life difficult. If you believe this is discrimination connected your sexual orientation you may be able to make a complaint under equality law.
Example A gay or lesbian person feels they have to resign after jokes made at their expense in the workplace.
What's covered?
The Employment Equality Acts 1998–2015:
- promote equality;
- prohibit discrimination (with some exemptions) across nine specified grounds (Age, Civil Status, Disability, Family Status, Gender, Membership of the Traveller Community, Race, Religion, Sexual Orientation);
- prohibit sexual harassment and harassment across nine grounds;
- prohibit victimisation;
- require reasonable accommodation for people with disabilities in relation to access, participation and training in employment;
- allow positive action measures to ensure full equality in practice across all nine specified grounds.
The Employment Equality Acts also implement the following EU Directives – The Framework Directive, the Gender Recast Directive, and the Race Directive.
How do I know if I’m being unfavourably treated?
Different types of discrimination are prohibited under the Employment Equality Acts. These include:
Direct discrimination
This is defined as the treatment of a person in a less favourable way than another person who is in a comparable situation, because they differ on any of the nine grounds described above.
This is a difference which:
- exists;
- existed but no longer exists;
- may exist in the future; or
- is imputed to the person concerned (this occurs where a person is labelled as differing under the specified grounds even though this is not the case).
Discrimination by association
This occurs when a person who associates with another person is treated less favourably because that other person differs under any of the nine grounds.
Indirect discrimination
This happens where an apparently neutral provision, criterion or practice which appears unproblematic at first sight, puts a person differing under any of the nine grounds at a particular disadvantage, compared with another person.
This provision, criterion or practice will not amount to discrimination where the employer can show:
- that the provision, criterion or practice is objectively justified by a legitimate aim; and
- that the means of achieving that aim are appropriate; and
- that the means of achieving that aim are necessary.
Instructing discrimination
This occurs when someone gives an order or instructs another person who is in some way dependent, such as an employee, to discriminate against another person.
What positive actions can my employer take for equality?
Positive action
In addition to prohibiting discrimination, the Employment Equality Acts also aim to ensure full equality in practice through positive actions (i.e. more favourable treatment to persons who have a characteristic protected under any of the grounds).
In practice, this means that employers can adopt and maintain specific policies and practices to prevent or compensate for disadvantages linked to any of the grounds.
This might include, for example, providing flexible working hours, e-working, or offering work internships and/or training programmes, or other work benefits that attach to any of the nine grounds.
Vicarious liability
Employers are liable for any acts of discrimination by an employee, or third parties (such as service users, contractors and other business contacts) in the course of his or her employment.
However, it is a defence if the employer can prove that he or she took reasonably practicable steps to prevent the discrimination.
What can I do if I am being harassed or sexually harassed?
Harassment and sexual harassment
Sexual harassment and harassment of an employee (including agency workers or trainees) is prohibited in the
workplace or in the course of employment by:
- another employee;
- the employer;
- clients, customers or other business contacts of an employer. These include any other person with
whom the employer might reasonably expect the victim to come into contact and the circumstances
of the harassment as such that the employer ought reasonably to have taken steps to control it.
The Employment Equality Acts prohibit the victim from being treated differently by reason of rejecting or accepting the harassment (or where it could reasonably be anticipated that he or she would be so treated).
What is harassment and sexual harassment?
Harassment is any form of unwanted verbal, nonverbal or physical conduct related to any of the nine grounds.
Sexual harassment is any form of unwanted verbal, nonverbal or physical conduct of a sexual nature.
In both cases, it is conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
In both cases, the unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, emails and text messages, pictures or other material.
Sexual harassment or harassment of an employee by another employee, employer, client, customer or other business contact, is discrimination by the employer.
It is a defence for an employer to prove that the employer took reasonably practicable steps to prevent the person harassing or sexually harassing the victim.
What if my employer retaliates against me for complaining?
Victimisation
It is unlawful for an employer to penalise an employee for making a complaint under either the Employment Equality Acts 1998–2015 or the Equal Status Acts 2000–2018.
Victimisation occurs where the dismissal or other adverse treatment of an employee is a reaction by the employer to:
- a complaint of discrimination made by the employee to the employer;
- any proceedings by a complainant;
- an employee having represented or otherwise supported a complainant;
- the work of an employee having been compared with that of another employee, for any of the purposes of these Acts, or any enactment repealed by these Acts;
- an employee having been witness in any proceedings under these Acts or any such repealed enactment;
- an employee having opposed by lawful means an act which is unlawful under these Acts or any such
repealed enactment; or - an employee having given notice or an intention to take any of the actions mentioned in 1 to 6 above.
What's not covered?
The prohibition on discrimination is subject to a number of general and grounds-based exemptions.
These are the most common exemptions and not an exhaustive list of exemptions provided for under the Employment Equality Acts.
Occupational requirement exemption
The Employment Equality Acts allow for difference in treatment which is based on a characteristic related to one of the nine grounds, if the employer can demonstrate that:
- the characteristic constitutes a genuine and determining occupational requirement; and
- the objective is legitimate; and
- the requirement is proportionate.
Exemptions for specific jobs
Employment in another person’s home for the provision of personal services
There is an exemption in relation to access to such employment. However, this exemption does not extend to other areas such as conditions of employment; etc.
Officers or servants of the State
It is not discrimination under the Employment Equality Acts for civil service employers, including An Garda Síochána, the Defence Forces and the civil service more generally to require employees to fulfil any or all of the following requirements – residence, citizenship and proficiency in the Irish language.
Teachers in primary and post primary schools
The application of any provision in relation to proficiency in the Irish language is allowed.
Exemptions in relation to all types of employment
Capacity and competence
An employer is not required to employ someone who will not undertake the duties or is not fully competent or capable of doing the job. However, a person with a disability is fully competent and capable of undertaking any duties, if the person would be so fully competent and capable on reasonable accommodation being provided by the employer.
Educational, technical or professional qualifications
The Employment Equality Acts allow requirements in relation to the holding of specified educational, technical or professional qualifications which are generally accepted qualifications for the post in question.
Benefits in respect of an employee’s family
The Employment Equality Acts allow employers to provide certain benefits in respect of employee’s families and family events and in relation to the provision of childcare or other care provision.
Case Studies
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What's next?
Make a complaint to the Workplace Relations Commission
The Workplace Relations Commission (WRC) is the body that hears discrimination complaints under Ireland’s equality laws. The WRC deals with both employment and service/goods related claims. There is no fee to bring a case to the WRC and complaints can be made online.
Learn more about the WRC process
Contact us
We, the Irish Human Rights and Equality Commission, have a statutory role to fight discrimination and provide information on equality and human rights in Ireland. Please note however that we are not a court and we do not decide on discrimination claims.
Learn more about how to contact us
Contact another organisation
You may find that another organisation could better help you with your issue.
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Employment rights / Equal treatment in services
Workplace Relations Commission
Information and Customer Services (ICS), formerly known as Workplace Relations Customer Services, is responsible for the provision of information relating to employment rights, equality and industrial relations matters by means of a telephone call-in service manned by experienced Information OfficersInformation and Customer Services
Workplace Relations Commission
O’Brien Road
Carlow
R93 E920
Phone: 059 9178990 | Lo-call: 1890 80 80 90 * (09.30 - 17.00, Monday to Friday)
Web: https://www.workplacerelations.ie/en/contact_us/contact-details/
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Employment law clinic
Community Law and Mediation Centre and Arthur Cox
The Community Law and Mediation Centre and Arthur Cox staff an employment law clinic at the Citizens Information Centre on O’Connell Street once a month from 9:30 - 1pm.Citizens Information Centre on O’Connell StreetPhone: 01 847 7804 or 061 536 100
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Transgender persons
Teni Transgender Equality Network Ireland
TENI seeks to improve the situation and advance the rights and equality of Trans people and their families. Its vision is an Ireland where Tran’s people are understood, accepted and respected, and can participate fully in all aspects of Irish society. TENI is dedicated to ending transphobia, including stigma, discrimination and inequality and continues in the struggle for social, political and legal recognition of Trans people in Ireland.Transgender Equality Network Ireland TENI
10 Ellis Quay
Arran Quay
Dublin
Ireland -
LGBTI+ support services
LBGT Ireland
LGBT Ireland is a national organisation underpinned by localised knowledge and responses. For support or information please contact the National LGBT Helpline on 1890 929 539. Available: Monday – Thursday (6.30pm – 10pm), Friday (4pm-10pm), Saturday and Sunday (4pm-6pm).LGBT Ireland
7 Red Cow Lane
Smithfield
Dublin 7
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LGBTI+ support services
NXF
Established In 1979, The NXF Is The Oldest Lesbian, Gay, Bisexual And Transgender (LGBT) NGO In Ireland. The NXF Publishes Gay Community News (GCN) And Campaigns For The Equal Rights Of, And To Combat Discrimination Against, LGBT People In Ireland & Internationally.Phone: +353 1 675 5025
Web: https://www.nxf.ie/
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LGBTI+ support services
BeLonG To Youth Services
BeLonG To Youth Services is the national organisation supporting lesbian, gay, bisexual, transgender, and intersex (LGBTI+) young people in Ireland.Parliament House,
13 Parliament St,
Temple Bar,
Dublin 2, D02 P658 -
Workplace bullying
Health and Safety Authority
The Employment Equality Acts do not extend to generalised bullying or harassment which is not linked to the discriminatory ground. For further information on bullying or harassment not connected to the nine grounds you should contact the Health and Safety Authority (HSA). The HSA provides information and advice on bullying in the workplace. The HSA makes sure that the system of work is not one where bullying is facilitated or tolerated. Where bullying is identified (through a legitimate complaint) employers should have a proper system to deal with bullying complaints, and act reasonably in implementing that system. The HSA can assess this system and make recommendations, and where required, use powers of enforcement to ensure the system is reasonable and the management of bullying does not represent a risk to the employee’s health and/or safety.Workplace Contact Unit
Health and Safety Authority
Metropolitan Building
James Joyce Street, Dublin 1Phone: 1890 289 389
Web: http://www.hsa.ie
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Legal advice
Free Legal Advice Centres
The Free Legal Advice Centre (FLAC) provide confidential, basic legal advice for free and in person across all areas of law. FLAC offers a network of advice clinics around Ireland and you may be able to identify the most suitable one at the following link: Legal Advice Clinic.Free Legal Advice Centres,
13 Lower Dorset Street,
Dublin 1,
Ireland
Phone: Lo-Call: 1890 350 250
Web: https://www.flac.ie/
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Legal aid
The Legal Aid Board
The Legal Aid Board is the statutory, independent body responsible for the provision of civil legal aid and advice to persons of modest means. Legal advice is any oral or written advice given by a solicitor or barrister, including writing letters and negotiations. Legal aid is representation by a solicitor or barrister in court proceedings. The Legal Aid Board has a number of centers across the country, and the best way to find the one most convenient to you is to contact the Legal Aid Board directly. -
Citizen's Information Centres
Citizen's Information
Citizens Information Centres (CICs) provide free, impartial information, advice and advocacy from more than 215 locations around the country.Find a Citizens Information Centre
https://centres.citizensinformation.ie/Phone: 0761 07 4000
Browse the database of organisations working on human rights and equality issues in Ireland.