Out at Work?

This is a re-publication of a pamphlet by Full Spectrum Ltd. which produced it under a grant from the Legal Services Board. Full Spectrum Ltd was a private consultancy and training organisation that provided workplace education for organisations wishing to create inclusive environments for their lesbian, gay and bisexual (lgb) employees in New Zealand and Australia.

While Full Spectrum Ltd. made every effort to ensure that this information is as legally accurate as possible, it is neither exhaustive nor should it be regarded as legal advice. If you are unsure, please contact your lawyer.

INTRODUCTION

A new world of freedom:

The past three decades have seen tremendous changes in the legal and social freedoms that gay, lesbian, and bisexual (lgb) people in New Zealand enjoy. In short, lgb people are increasingly able to be honest about who they really are in many areas of their lives - including the workplace.

Your right to an inclusive workplace — The law:

It is against the law in New Zealand to discriminate against employees on the basis of sexual orientation.
If you do experience discrimination you can take legal action - which includes mediation and low cost options.
The definition of discrimination is wide - it also includes practices that seem neutral but have a discriminatory impact.
In general. employers are legally liable for discriminatory behaviour in the workplace. There are defences - see "Legal requirements & liabilities".

The workplace — The reality:

In spite of the right to be treated equally and the duty of an employer to stop discriminatory behaviour many lgb people, even those who are "out" in the wider community often retreat back into the closet when they enter the workplace. Why?
The fact is that such discrimination can still happen. Where it does it can have major consequences for ones' career advancement, health, self-esteem, opportunities and performance.
Even where it is not overt, many workplaces operate on an assumption that everyone is heterosexual (heterosexism) and it can feel very uncomfortable and unsafe to 'come out' at work.

However the consequences of being `in the closet at work’ can also be devastating in the long run for one’s health, self-esteem, and work performance.

Closing the gap:

In short, there is sometimes a gap between what the law provides (and even between an employer's official policy of non-discrimination, if they have one) and actual practice.

This is designed to help lgb employees close this gap within their own workplace by:

Providing a brief overview of the nature of sexual orientation discrimination and its impact on employer and employee
Explaining the legal responsibilities of employers to provide an inclusive working environment
Describing a model workplace
Outlining the types of legal recourse available to lgb employees who believe they have been discriminated against
Describing how to go about documenting discrim-ination
Suggesting positive ways to encourage your employer to provide a truly inclusive work environment

SEXUAL ORIENTATION DISCRIMINATION:

WHAT IT IS & WHAT IT DOES

Invisibility – the Key:

Unlike visible grounds for discrimination such as gender and race, sexual orientation can be hidden. Most lgb people look, act and speak like their heterosexual counterparts. And unless they feel unafraid of negative reactions to their orientation and identity, they will usually hide them - it is perceived to be safer than risking possible ostracism, career damage, or other forms of discrimination. In short, many lgb employees live in fear of disclosure of their sexual orientation and the negative consequences such disclosure can bring.

So what?

Why would I want my sexual orientation to be "visible" at work?

Because it is fair – heterosexual people routinely "display" their sexual orientation without even noticing: they talk about their boyfriend, husband, girlfriend, wife; they display photos of their partner on their desk; they bring their partner to social/work events; their partner picks them up from work; they take advantage of company benefits for partners, etc. If a person feels the need to hide their sexual orientation, they must hide any evidence of a partner. Our sexuality is much more than "what we do in bed" – it encompasses the most important people and events of our lives.
Because hiding it is difficult and stressful, and can cause problems for you and your employer – Hiding the truth saps energy and creates anxiety. Many lgb people who worry about disclosure, perform their jobs at a lower level of productivity than lgb people who don’t have to worry about disclosure.⁽¹⁾ It sometimes means that in avoiding social interaction that might "spill the beans," the lgb person is perceived to be aloof, uninvolved, uncommunicative and evasive, which can result in career damage. It also means that the employer is not privy to important information, such as the need to consider a partner in any holiday scheduling or geographical transfers, or the need to provide leave for the lgb employee to take care of a sick partner.
Because research indicates that those who successfully come out at work report an increase in both their professional and personal happiness. ⁽²⁾ Coming out can also give an employee the power to make a positive impact on the organisation.

Why do many lgb employees fear disclosure?

Because it may result in workplace discrimination and/or harassment. This can take the form of verbal or written abuse, sabotaged work, forced outing, physical assault, social ostracism, company benefits denied to a same-sex partner, being denied the freedom to display a partner’s picture or bring him/her to a social function, and promotions and transfers denied. A recent study in Australia found that over 50% of respondents experienced workplace discrimination or harassment because of their sexual orientation.⁽³⁾

What if I don’t want to disclose, but I’m being pressured to do so at work?

No one but you has the right to disclose your sexual orientation to others – whether they know you are lgb or whether they are speculating. If someone at work is pressuring you to come out ("Come on Linda, why don’t you just come out of the closet and admit you’re a lesbian?") or if they are "outing" you to others when your sexual orientation is obviously a secret, they are breaking the law (Privacy Act).

WHAT DOES THE LAW SAY?

The Human Rights Act:

It is unlawful for an employer, manager or superior to:
- advertise in a discriminatory way;
- ask discriminatory questions at a job interview;
- refuse or omit to employ a person;
- give less favourable terms and conditions of employment;
- dismiss or terminate employment;
- subject a person to any other detriment;
….because that person is heterosexual, homosexual, lesbian or bisexual.
Where co-workers or colleagues harass a person because of their orientation, an employer has an obligation to take reasonably practicable steps to prevent such behaviour occurring (as that is subjecting them to detriment).
Some harassment of lgb employees can also be sexual harassment (if it is offensive and unwelcome and of a sexual nature and poisons the work environment for the person).
It is unlawful for anyone to sexually harass another at work. This also means that an employee cannot harass a manager or employer, and a client cannot harass you. Again, an employer has an obligation to take such steps as are reasonably practicable to prevent sexual harassment from occurring in the workplace.
It is also unlawful to discriminate against someone who is assumed to have a particular sexual orientation (Sec 21[2]), whether they do or not.
It is unlawful to discriminate against a relative or associate of a lgb person.
It is unlawful to indirectly discriminate – When a rule or practice exists which, on the face of it, appears neutral, but in fact has a detrimental effect on people of a particular sexual orientation. For example, if your employer provides company benefits for "spouses" of employees, then discrimination is occurring on the basis of both marital status and sexual orientation.

The Bill of Rights:

Everyone shall be free from discrimination on any of the grounds of prohibited discrimination under the Human Rights Act 1993.

The Privacy Act:

The Privacy Act includes many principles that govern the collection, use, retention and availability of personal information, such as your sexual orientation. ⁽⁴⁾

Personal information must come directly from you. However, an employer should not collect such information unless that information is necessary to fulfil a legitimate purpose.

If the employer collects personal information, he/she must take steps to ensure that you are aware it is being collected, why, and who shall receive and collect it.

Information shall not be collected by unfair or unlawful means.

Your employer shall ensure reasonable safeguards against loss or unauthorised access to the information.

You are entitled to have access to the information.

You are entitled to request correction of personal information and to request the correction be attached to the information.

Collected information must be accurate and up to date.

Your employer cannot keep personal information longer than is necessary.

Information held for one purpose shall not be used for another purpose.

The Employment Contracts Act:

Though sexual orientation is not specifically mentioned in the ECA, a person can take a personal grievance against their employer if they suffer disadvantage or sexual harassment in their employment.

A MODEL workplace – WHAT WOULD IT LOOK LIKE?

An inclusive working environment would:

Be free of homophobic and heterosexist assumptions, language, policies and practices
Provide benefits for the partners and dependent children of lgb employees on the same basis as those for heterosexual employees
Proactively welcome the partners and families of lgb employees to take part in any and all events and projects in which partners and families of employees are normally welcomed
Not make assumptions about the sexual orientation of any employees
Have a "zero tolerance" policy toward acts of discrimination or harassment against lgb employees
Provide education for employees on issues related to sexual orientation discrimination
Ensure those with managerial responsibilities and/or EEO enforcement have a thorough understanding of the issues related to lgb employees.
Make it clear to any prospective employees that lgb people are welcome and can expect a workplace free from discrimination
Have a non-discrimination policy that includes sexual orientation, which is widely distributed and understood to be taken seriously by management.

STEPS TO TAKE WHEN YOU BELIEVE DISCRIMINATION HAS OCCURRED

In-house steps: You are not required by law to first make a complaint directly within your workplace (unless you are filing a personal grievance with the Employment Tribunal). However, it can be more productive to initially attempt to deal with it in-house. If you choose to, your options are:

To go directly to the person who you believe is practising discrimination against you, and see if you can work it out with them personally;
To go to your direct supervisor or employer (assuming he/she is not the alleged offender) to report on the alleged discrimination;
In a large workplace, to go to your Human Resources department and follow company guidelines for filing a personal grievance.
To go to lgb-friendly managers, including union representatives, to discuss solutions.

Important! Keep in mind that depending on your employer’s policy regarding confidentiality, an in-house complaint may result in the complainant’s sexual orientation (or alleged sexual orientation) becoming known to others in the organisation.

Outside agencies: If you choose to take your complaint outside your organisation, your options are:

To file a personal grievance with the Employment Tribunal. In this case, you must first raise the matter with your employer. You may receive assistance for this from your union lawyer or advocate.
To file a complaint with the Human Rights Commission. This does not cost you money.
To obtain private legal advice/representation for advice on all of your options. (Seek out a glb-friendly lawyer)
To make a complaint to the Privacy Commissioner.
To go to the Police in the case of criminal acts such as assault, threats, blackmail, etc.

Gathering Evidence of Discrimination:

If you believe that you have experienced discrimination, it is important that evidence is provided to support your claim – whether you are attempting to address the issue in-house or through outside agencies.

Here are some guidelines and suggestions when gathering and compiling evidence.

Collect any ‘hard’ evidence such as memos and postings on bulletin boards, which are abusive, threatening or attempt to "out" you, etc. Take photos of graffiti. Save emails and phone messages. Copy your evidence and keep it secure. Be sure to note date, time and any other pertinent details.
In the case of verbal or physical behaviour record the incident in writing as soon as possible afterwards. Note identity of perpetrator, date, time, location, witnesses and description of incident. Also, if any witnesses are willing to do the same, this will add weight to your claim. (Abusive language can include offensive ‘gay jokes,’ whether or not they are directed at a particular person in the organisation, and derogatory comments about lgb people in particular or in general.)
Begin gathering evidence at the first instance of discrimination – don’t wait until multiple instances have occurred.
If appropriate, use the Privacy Act to obtain personal information about you that your employer may hold.

POSITIVE WAYS TO ENCOURAGE YOUR EMPLOYER TO PROVIDE AN INCLUSIVE ENVIRONMENT

LGB employees can make a real difference within their workplace, by encouraging their employers from the inside, to create an inclusive environment.⁽⁵⁾ How?

You might begin by choosing someone in a position of influence with whom you have a good working or personal relationship, and whom you believe will be sympathetic. Discuss the issue with that person(s) in confidence, and ask for their thoughts on the best way to go about raising the issue with management. Allies in high places can make a big difference to the success of your efforts.
If you know other lgb people in the organisation, discuss the issue with them and determine if they are willing to offer their support – either openly or behind the scenes.
Encourage your employer to provide education on sexual orientation discrimination as part of its staff training program.
Remember that most heterosexual managers have never been exposed to the issues related to lgb people in the workplace – it is probably a mystery to them. Having a good working knowledge of why it is important for the employer to provide an inclusive environment for lgb people is essential. You can approach this from several angles:
1. Productivity – evidence indicates that an inclusive environment increases lgb productivity by removing or reducing the fear of disclosure.
2. Fairness & equity – so that all employees have the same freedom to be themselves and so that the partners of all employees receive the same benefits and inclusion.
3. Legal requirements and liabilities – in order to protect the organisation from expensive and time-consuming litigation and complaints to agencies such as the Human Rights Commission. Remember - employers are legally liable for discriminatory acts of their employees - unless the employer can prove that "all reasonably practicable steps" were taken to prevent discrimination.
4. Employee/public relations – in order to present the organisation as fair and forward thinking. This also has spin-off benefits in attracting lgb clients and customers.
5. Recruitment & retention – in order to provide the employer with the largest pool of available talent, and to retain those lgb employees who might otherwise look for a more inclusive employer.
No matter what type of ‘hat’ you wear, creating a lgb employee network can be an important step in encouraging your employer to act.
1. It provides evidence that lgb people actually exist in the organisation.
2. It provides a united voice when pressing the issue with management.
3. It provides opportunity for mutual support, and a forum for lgb employees to discuss best methods to gain an inclusive workplace.
4. It provides your employer with a valuable resource for improved employee relations and input for improved marketing/services to the lgb community.
How do I start an employee network?
1. It does not have to be ‘formal’, but can be an informal group as small as 2 people. It may be best to initially meet off-site and in your own time.
2. If the organisation recognises/supports other employee networks, approach human resources personnel, EEO advisors, etc., and inquire about official recognition.
3. Use whatever means to publicise the network which fits best within your organisation – Email, bulletin boards, word-of-mouth, internal memo, company newsletter, etc. Ensure anonymity.
4. Welcome heterosexual employees who want to support such a group. There are many heterosexual people with lgb loved-ones & friends who can add vital support.
5. Network with other lgb networks in other organisations for support and ideas.

Contact Details

CTU Out@Work Network

Below are several gay-friendly attorneys in major New Zealand centres

New Zealand Human Rights Commission 0800 496 877 FAX: (09) 377-3593 (Attn Infoline) help@hrc.co.nz http://www.hrc.co.nz/	Frances Mary Joychild (Auckland-based attorney) (09) 379 4555 FAX: (09) 308 9277 francesjoychild@clear.net.nz
Employment Tribunal 0800 800 863 (09) 379 2620 FAX: (09) 375 9718	Milne Ireland & Walker (Auckland-based attorneys) (09) 379 6937 FAX: (09) 377 8014
Office of the Privacy Commissioner 0800 803 909 (09) 302 8680 FAX: (04) 474 7595 privacy@actrix.gen.nz	Robyn Haultain Wellington-based attorney (04) 499 0722 FAX: (04) 471 1964

Go to the pamphlet

Ibid
The Pink Ceiling Is Too Low, by the Australian Centre for Lesbian and Gay Research and the NSW Gay and Lesbian Rights Lobby.
Section 6 Privacy Act, 1993
However, in some workplaces this may require that those involved in applying such pressure "come out" in a potentially unsafe environment. In this case, the lgb employee contemplating such a move should carefully consider the possible ramifications.

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