11 December 2006
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On the day sexual orientation discrimination at work became illegal in the UK on 1 December 2003, a headline in the The Lawyer read 'Slaughters and Norton Rose ahead of the pack in diversity'. How three years makes a difference. If we take sexual orientation as the last taboo in diversity, then it is the firms that have actually committed to working in this area that are now 'ahead of the pack'. These are Baker & McKenzie, Clifford Chance, Herbert Smith, Linklaters, Mayer Brown Rowe & Maw (MBRM), Pinsent Masons and Simmons & Simmons - all of which are members of Stonewall's 'Diversity Champions' best practice programme for employers.
It is still very much early days, and Stonewall's programme is there to help firms improve rather than bestow unearned honours. For example, it was only six years ago that we overturned the ban on gay people serving in the military.
In that landmark case, Lord Justice Henry said: "Since 1967 there can be no doubt that public opinion has moved a very long way towards toleration and acceptance of homosexuals. There has been a growing recognition of the specific human rights of homosexuals, including rights in the workplace."
Henry LJ is right about tolerance. For example, since 1 December 2003 gay people have been afforded equal protection from workplace discrimination. However, he is wrong about 'acceptance'. If we were all accepting of gay people at work then it simply would not be a current news issue.
A change in attitude
There has been a lot of talk recently about gay people in the law. The Lawyer has run several articles on what it might be like for lesbians and gay men to work in traditionally conservative (read covertly homophobic) firms. The Law Society published a recent study which found that gay and lesbian solicitors feel unable to come out to colleagues. It also concluded that gay staff needed more visible support, fewer outings to Spearmint Rhino and for their employers to work more with bodies such as Stonewall to promote best practice.
Many people remain bemused. Why should being gay in any way affect one's work? Why should law firms feel the need to be 'gay-friendly'? The answer lies in understanding sexual orientation, understanding what the situation is actually like and understanding how, with a little thought and action, it could in fact be improved significantly to the benefit of both individual and firm.
In a recent conversation with a colleague who works at a magic circle firm, he expressed horror that he was being sent on 'diversity training'. "Was this your idea?" he asked me. Since his response was so hostile, I suggested it was evidence that he, in fact, needed it.
Sexual orientation is too often misunderstood. Too many people forget that everyone has a sexual orientation, not just gay people. It just so happens that 94 per cent of people are more attracted to people of the opposite gender. Too many people also mistake 'being gay' for something that one 'does' rather than something that one actually is.
It is really not about what anyone, gay or straight, does in their private life, it is more about the fact that one group can talk honestly about what they did at the weekend, whereas the other cannot. And, as the magic circle colleague now appreciates, 'being gay' is not a private matter when it affects individual and team productivity within the business.
Over half of lesbian, gay and bisexual (LGB) staff conceal their sexual orientation from their employers and co-workers, yet 'out' employees in safe environments can be 20-30 per cent more productive.
If you are one of those who feels bemused, there are three points worth considering.
First, the law. Stonewall has campaigned to secure a number of landmark victories for gay people in the UK, from the repeal of Section 28 in November 2003, to the introduction of civil partnerships in December 2005 and forthcoming protection for lesbian and gay people in the provision of goods and services.
The Employment Equality (Sexual Orientation) Regulations became law in December 2003. They protect potential and existing employees from discrimination on the basis of sexual orientation. This law applies to everyone, whatever their actual or perceived sexual orientation. So it protects straight people who - heaven forbid - are assumed to be gay or who simply associate with gay people.
It forbids direct discrimination, where an employee or applicant for a job feels that they are being mistreated, refused promotion, dismissed, rejected or offered inferior terms and/or conditions because of their sexual orientation. It forbids indirect discrimination, which is more subtle, and occurs when an organisation's policies, criteria and/or rules implicitly or unwittingly exclude people of certain sexual orientation.
Mistreatment or abuse by fellow employees or superiors is also covered - harassment can lead to the prosecution and fining of both individuals and the organisation as a whole. In the course of an investigation, victimisation of those giving evidence or making a complaint is also unlawful.
Second, coming out. Choosing to 'come out' can be a difficult decision and only the individual can make it; 'outing' someone constitutes harassment under the law. Organisations that discriminate during the application process through the wording or placement of advertisements which exclude people of any one sexual orientation, or by using an applicant's revelation of their sexuality in a CV or an interview as grounds for rejection, are in breach of the law. Being gay per se should neither advantage nor disadvantage an employee, that is the point of equality. Yet the reality is that more than half of all staff in UK law firms are unable to be open about their sexual orientation. That is bad not simply from a human rights perspective, but also from a business perspective. People perform better when they can be themselves.
Third, the employer response. Some employers are becoming more proactive in dealing with sexual orientation in the workplace. Many organisations now have equality and diversity teams or officers - individuals who are given responsibility for attracting, promoting and retaining the widest possible talent pool.
Many employers go several steps further by working with Stonewall through its Diversity Champions programme, which is a good practice forum for employers on sexual orientation in the workplace. The programme has increased its membership from 65 to 250 organisations in the space of two years. The Royal Navy used to fire gay staff, whereas now it features in Stonewall's lesbian and gay recruitment guide.
Stonewall challenges employers to translate fair policies into good practice and promotes competitive benchmarking through its annual Workplace Equality Index. Each year the index becomes more competitive as organisations seek to improve their rankings or get on this list of the UK's top 100 gay-friendly employers. Companies in Stonewall's programme perform better overall - they score on average 19 per cent better and make up 82 of the top 100 in 2006.
Investment banks have been answering the questions of 'why should being gay in any way affect one's work?' and 'why should firms feel the need to be gay-friendly?' for the past five years, and in January they will once again be the highest-scoring sector in our Workplace Equality Index. Law firms are behind the curve, but the eight mentioned above stand out. They are the ones that are starting to address sexual orientation as seriously as race, gender, age and disability. They are the ones that understand that people perform better when they can be themselves.