Know your rights: LGBTIQA+ discrimination at work

Most people are aware that it’s illegal for a company to decide not to hire you based on your LGBTIQA+ identity. What some people may not realise though, is that this type of discrimination based on your sexual identity can go beyond the hiring process.

LGBTIQA+ discrimination can happen in both subtle and obvious ways within the workplace. It can be driven by either conscious or subconscious biases held by colleagues and people in management and leadership roles.

No matter what the reason is for it, this type of workplace discrimination is illegal. To make sure you’re being treated fairly and equally, it’s important to understand the different types of LGBTIQA+ discrimination that commonly occur, and what kind of recourse is available if you experience it.

How can I tell if I’m being discriminated against?

Workplace discrimination, especially based on your sexual identity, isn’t always super obvious. For that reason, it can sometimes be difficult to know whether you’re being discriminated against or not.

A great place to start is understanding the common ways in which LGBTIQA+ discrimination usually occurs. As employment lawyers Gillian Service and Dilshen Dahanayake explain, discrimination generally takes one of two forms.

“Discrimination can be direct or indirect. Direct discrimination encompasses the more obvious forms of discrimination – such as a dismissal or being refused a promotion on the basis of your sexual identity,” says Gillian Service, Partner at MinterEllisonRuddWatts

“Direct discrimination can also be microaggressions, like not receiving invitations to work-related social gatherings, or being greeted or spoken to in a different manner to your peers.”

Indirect discrimination is more nuanced.

“It means workplace practices or policies that at first glance don’t seem discriminatory, but have the effect of disadvantaging a certain group of people or preventing those people from participating.”

At the end of the day, if you have a sense that you are being treated differently because of your LGBTIQA+ identity, it’s not something you should ignore.

“It’s so important that people are valued in their workplace and have the ability to excel on equal footing. If you feel you are being treated unfairly or disadvantaged by virtue of your sexual identity, it’s possible you’re being discriminated against,” Service explains.

Why is LGBTIQA+ workplace discrimination illegal?

Creating and protecting a diverse and inclusive workplace is incredibly beneficial. Not only can it promote creativity and innovation, but it can also reduce absenteeism and high turnover rates.

It also ensures that every individual, no matter their sexual identity, is treated equally and respectfully and can enjoy working in a safe environment. The reason there is a law protecting members of the LGBTIQA+ community in the workplace is to ensure they cannot be unfairly treated just for being who they are.

What can I do if I believe I’ve been discriminated against?

There are avenues you can take if you believe you’ve been discriminated against in the workplace because you identify as LGBTIQA+.

As Dilshen Dahanayake, Solicitor at MinterEllisonRuddWatts, explains, the first step is usually to take it up internally with a manager or your workplace’s Human Resources department. However, if this is not successful or if you don’t feel comfortable raising it with management or HR, you can escalate the matter. 

“There are formal institutions set up for dealing with workplace discrimination, including the New Zealand Human Rights Commission and the Employment Relations Authority” he says. 

“If you are wanting to take a claim to that level, you will need to choose between making a complaint with the Commission or pursuing a personal grievance in the Authority. The Employment Relations Act 2000 restricts complainants from bringing the same claim in both forums.”

“If you’re not wanting to make a formal claim, but you just want general advice about whether you’re being discriminated against at work, the Commission will be the best port of call” advises Dahanayake.

Although it can be difficult and potentially even uncomfortable to pursue recourse, it’s important to do so as it can assist you in resolving the issue and may prevent further incidents occurring to yourself or other LGBTIQA+ employees in your organisation.

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