New Discrimination Rights - It's Not Personal But It Still Hurts - Even If It's About Somebody Else Or It's Not True!

The Issue

New case law has recently extended discrimination protection in

two ways.

First, less favourable treatment of a worker not by reason of

their own personal characteristics but due to their association

with another person whose attributes are within scope now attracts

discrimination law protection. So, an able bodied secretary called

lazy for taking time off to care for her disabled son suffered

direct disability discrimination and harassment due to her

association with a disabled person, and an advice worker was

harassed on the ground of religion or belief not because of his own

religion but because of his manager's religion.

Secondly, the Court of Appeal has found that workers can suffer

discrimination if their harassment is focussed on an area with

discrimination protection even if they themselves do not have the

characteristics which that law protects. (In these circumstances

there was no third party with the relevant characteristics involved

either). So, a manager subjected to homophobic banter by his

colleagues was discriminated against on the ground of sexual

orientation despite the fact that he was not gay and was not

perceived to be gay by his harassers.

The Consequences

Businesses' equal opportunities duty now extends to

preventing detriment by reason of a worker's known personal,

business or other association with a person whose attributes give

discrimination protection. Businesses are now required to look

beyond the worker's own personal attributes for risk areas.

This has been confirmed by case law in the context of disability,

race and religion discrimination. In the context of sex

discrimination new regulations have, from April 2008, redefined

sexual harassment as unwanted conduct 'related to her sex or

that of another person'. The Equality Bill, for publication

this year, is expected to protect discrimination by association

more generally in legislation in relation to other strands of

discrimination such as disability, race, religion and sexual

orientation.

More controversially, businesses will be wise also to prevent or

otherwise deal with harassing behaviour which has a discrimination

protected focus even if the worker neither has that attribute, nor

is believed by the harassers to have it, nor is associated with

another who has it. While informed opinion suggests that this may

not include abuse with a disability or gender basis, it will be

likely to apply to behaviour with a sexual orientation, racial or

religious...