Thursday 19 June 2003

Homosexuals and the SDA 1975

The House of Lords has handed down its decision in the cases of MacDonald v Advocate General for Scotland and Pearce v Mayfield School.

The House of Lords resolved the two competing arguments as to whether homosexuals fall within the Sex Discrimination Act 1975. In five distinct judgments, the five Law Lords were unanimous in dismissing the appeals.

The argument in favour was that if an employer dismisses a male who is sexually attracted to men (ie a homosexual), but would not dismiss a female who is sexually attracted to men (ie a heterosexual), the man has been treated less favourably than the woman and so has been discriminated against on grounds of gender.

The contrary argument was that the two are not in the same position, i.e. there are material differences between the man and the woman. Following the approach in Shamoon, the appropriate comparator would not be woman who was attracted to people of the opposite gender, but a woman who was attracted to someone of the same gender.

The House of Lords unanimously preferred the latter argument, holding that homosexuals are not protected by the provisions of the SDA 1975. If somebody is dismissed because they are homosexual, this is gender-neutral treatment by the employer provided it applies to both homosexual men and homosexual women. The appropriate comparator for a homosexual man is a homosexual woman.

Of just as much importance as the ratio of the case is the fact that the House of Lords stated that Burton v De Vere Hotels (the 'Bernard Manning' case) was wrongly decided. The House of Lords state that whilst an employer's failure to prevent third parties committing acts of sexual/racial harassment might amount to discrimination by the employer, it will only do so if the employer failed to take such steps because of the employee's sex/race. This has significant ramifications for discrimination claims generally, and also for the Liversidge cases where police constables are bringing sex discrimination claims against their chief constables.

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