Challenging heterosexual norms at the workplace: legal and policy tools

LGBT Leader Forum, 20 May 2010, Budapest

Dear Organisers, Dear Participants,

I am happy to be here with you today at this important event. Let me state clearly at the outset that discrimination undermines the core of our values, human dignity, freedom and equality.

An approach based on diversity benefits everyone, rather than a particular groupof people. It means developing an inclusive environment, and respect for all. Diversity is also linked to an optimal utilisation of resources, with performance and with flexibility, in order to meet various needs and preferences, and to create a motivating and rewarding environment.

There is today an increased awareness throughout the EU about discrimination and diversity. Being perceived as discriminating is “bad business”! Companies can lose out if they get it wrong. But what does it mean to get it wrong, and what seems to work best?

The rights of lesbian, gay, bisexual and transgender people (LGB&T) are firmly established in the Treaties, in the EU Charter of Fundamental Rights, and in an EU Directive adopted in 2000. According to these sources, LGB&T people enjoy the right to equality and non-discrimination. This is further specified through detailed rules with respect to the right to equal treatment in employment and occupation.

However, according to the evidence provided in FRA reports, LGB&T persons experience discrimination, bullying and harassment throughout the EU. This often takes the form of demeaning statements, name calling and insults or the use of abusive language, but also verbal and physical attacks, including even deadly assaults. Discrimination against transgender persons was also reported in all areas investigated for the reports.

LGB&T persons experience   discrimination and homophobia in the workplace through direct and indirect discrimination (access to employment, dismissal and lack of promotion); unequal treatment in the areas of appreciation, performance pressure, advancement, training and earnings; they are subject to harassment by colleagues, mocking, ridicule, gossip or rumours, sexually explicit remarks, and social isolation.

As the EU Commission has highlighted, legislative protection against discrimination must be supported by an   active strategy to promote nondiscrimination, equal opportunities, and diversity. This would require a better application of mainstreaming, positive action, awareness raising and training, activities promoting diversity at the work place. Dialogue on non-discrimination policy among the business community, national authorities, and civil society remains an important tool to make sure that the law is fully applied, and innovative approaches are developed. I will come back to this point.

The non-discrimination framework has initiated a very important development in Europe addressing discrimination. However the relatively weak   enforcement of the framework is well documented: very few complaints on ground of sexual orientation, both at equality bodies and in courts. The role of equality bodies is important in this respect but clearly the active participation of employers’ and workers’ organizations is crucial to realize the full capacity of the system and the framework. FRA has encouraged member states to consider extending the scope of existing equality bodies to include discrimination on grounds of sexual orientation within their remit and grant adequate resources to allow the provision of both legal as well as psycho-social support to discrimination victims.

A focus on   prevention is certainly very important. In some MS (Sweden, UK, NL), public and even private employers, and/or schools, are under an obligation to ‘promote equality’, which might encompass a duty to prepare discrimination “risk assessments” and “prevention plans”. Other MS are debating the introduction of a general duty to ‘promote equal treatment’, which encompasses a specific duty to draw up an ‘implementation plan’ setting out specific measures. In this context, the duty to prevent harassment by managers, colleagues and clients is particularly relevant. These trends signal that discrimination should be treated as serious matters: technically and professionally. This requires equal treatment plans comprising specific measures for promoting the equal rights of LGB&T workers.

I mentioned the importance of   dialogue. Social partners should facilitate the active participation of LGB&T persons in their organisations and encourage public and private sector employers to adopt and implement diversity and equal treatment policies in the workplace. Through ongoing consultations and dialogue it will be possible to continue promoting the benefits of diversity at the workplace.

There is increasing recognition that legislation should be supplemented by innovative strategies implemented by employers to manage an increasingly diverse workforce. FRA has encouraged Member States to conduct ‘diversity audits’ and develop equal treatment and diversity policies for all grounds of discrimination in their public administration at all levels, providing a ‘best practice’ example to other employers.

There is today a number of   case studies of private companies and public sector organisations which describe experiences of the benefits that diversity initiatives have provided to their organisation. The major recurring themes and stated advantages of diversity management in such case studies are: 4 • using the skills and talents of the workforce appropriately, and ensuring that recruitment and selection decisions are based on rational criteria. • avoiding internal problems such as conflicts and misunderstandings, grievances, higher absenteeism, greater staff turnover, and damage to staff development. • making products or services more attractive to a diverse array of customers and clients. • increasing creativity, innovation and problem solving through the inventiveness of diverse work teams. • stimulating more flexible working practices through responding to the needs of a diverse workforce.

This flexibility itself can enhance the creativity and efficiency of the organisation. • accessing international markets with more success, in particular when a diverse workforce allows a company to draw on the skills or connections of employees to reach new markets. • avoiding the costs of discrimination, such as damage to the organisation’s image through adverse publicity, and/or the financial penalties resulting from legal cases. • Improving the image of the company in the eyes of potential investors who choose to invest in companies demonstrating practices of corporate social responsibility.

The   challenges are there: bigger companies are more advanced, but SMEs might find diversity a daunting concept. In some cases, the local environment - including religious views - can be countering these developments. This is a problematic aspect. We still need to go a long way before LGB&T workers and individuals will feel free to be, express and live openly and free from fear and stigma. Transgender people, in particular, often see their very right to work is violated, and this pushes them at the very margins of society, often into forced sex work as the only viable option.

However, the workfloor is an essential part of our civil and social life and should be a place which respects the inherent dignity and worth of all human beings.

In conclusion , therefore, I would like to point out that there is a need to continue challenging the underlying norms, perceptions and stereotypes that fertilizes homophobic tendencies in our societies. FRA will continue its research and data collection, especially through collecting experiences of discrimination in key areas. I am sure that today you will bring a great contribution towards our common goal of eliminating discrimination.