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Wednesday 08 October 2008


Getting a job? Sexual orientation should be a non-issue

Posted in: Community
By Matt Akersten - 17th August 2008

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Getting a Job: The HRC's advice booklet
Can potential employers ask you about your sexual orientation? No, says a new guide from the Human Rights Commission.

Employers should avoid asking questions or seeking information about the sexual orientation of job applicants, recommends the Human Rights Commission's new pre-employment guideline booklet.

"Things can go wrong when those applying for jobs believe they've been discriminated against because, for example, of their gender, sexual orientation, race, religion or disability," explains Equal Employment Opportunities Commissioner Dr Judy McGregor.

"There are questions no one should have to answer in a job interview because they risk breaching the Human Rights Act."

The booklet, called Getting a Job, aims to guide employers and applicants through the employment process, using plain-language guidelines to give information which can ensure everyone is treated fairly.

You can choose to disclose as much – or as little – as you like on your CV. If you'd prefer to be 'out', go ahead, but if you don't see your sexual orientation as an issue – or are worried in case it becomes a factor which prevents you getting the job – leave it out.

The guide advises employers to avoid the topic of marital status or partners altogether. However, you can be asked whether you have a partner, spouse or relative already working with the organisation or with a competitor, as that situation could possibly work to the employer's detriment. Similarly, employers are advised to avoid the topic of children or other dependants.

What about if an employer asks about your relationship with your next-of-kin or emergency contact person – when this will mean disclosing that you're gay? An employer should avoid asking questions about your relationship with the person you nominate as next-of-kin or emergency contact person. "Ideally next-of-kin information should be obtained when employment commences rather than at the earlier stages of the employment process," the Commission's guide recommends.

EXCEPTIONS – WHEN BEING LGBT CAN MATTER

In general, an employer cannot refuse to offer an applicant a job because of their sexual orientation, but there are a limited number of situations where the Human Rights Act states that the sexual orientation of a job applicant can be taken into account, says the guide.

One example is domestic employment in a private household. Someone advertising for a nanny can be specific on age, disability, political opinion, religious or ethical belief, sex or sexual orientation. Sexual orientation of a job applicant can also be taken into account in finding a counselor on highly personal matters such as sexual incidents or the prevention of violence.

"The sexual orientation of a person may also be taken into account in the ordination and engagement of clergy," states the guide. "There is a diversity of views between lawyers on the various legal issues, but provided the refusal to ordain or engage homosexual, lesbian or bisexual clergy can be properly described as a matter of religious belief in the relevant church, the Act does not forbid sexual orientation discrimination."

In 2003 the Human Rights Commission published a discussion paper on the Human Rights Act and its relationship to gay and lesbian clergy which provides a full account of the issues involved. That paper can be read here.

Also, some organisations collecting EEO data through workplace profile information may ask about sexual orientation to ensure the recruitment catchment is as diverse as possible. "Employers should avoid asking questions or seeking information about the sexual orientation of job applicants unless they are collecting anonymous statistical data for EEO reporting or for profiling who responds to their job applications," says the HRC. "If an employer is collecting data for such purposes it should ideally be collected on a form that is separate from the job application form."

TRANSGENDER PEOPLE

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The L Word's Max faced drama at work when his workmates discovered he was transgender
Do transgender people need to disclose that they are transgender in their interview?

"In most cases it is solely your decision whether you wish to disclose that you are transgender, as your sex or gender identity has no bearing on your ability to do the job," the guide states.

"There are some very limited circumstances where it is legal to employ only a woman or a man for a particular position, i.e. being female or male is a genuine occupational qualification. In these limited situations, some transgender people may need to provide evidence about their sex."

An employer can legally ask for your previous names to help them do background checks. This may be a concern if you're progressing from quite gender-loaded names like from 'Glen' to 'Glenda', for example. As disclosure of the information might have significant additional implications for a transgender job applicant, reassurance from the potential employer should be given that the information will only be used to verify identity and not for any other purpose.

"It would be discriminatory to ask a transgender person to provide details of their previous name if this information was not required from other job applicants," the guide specifically states.

Extensive information about human rights relating transgender/trans people can be found in the Human Rights Commission's Transgender Inquiry report here.

HIV DISCLOSURE

It is unlawful to discriminate against people with the HIV virus, so you do not have to disclose or your job application that you have the HIV virus.

The Human Rights Act does have a 'risk of harm' exception which could be relevant depending on the duties of the job. However, risks around HIV/AIDS tend to be more 'percieved' than 'actual'. For example, the risk of transmission of AIDS is almost nonexistent without blood or sexual fluids being exchanged, so almost all jobs (except perhaps a 'barebacking' porn actor) would present no reasonable risk of harm from/to an HIV+ person.

MAKING A COMPLAINT

If you believe you have been wrongly discriminated against by an employer – or potential employer – the Human Rights Commission is there to take your case seriously.

The Human Rights Commission will accept a complaint if there is evidence that you have been treated differently, and that the different treatment can be attributed to one of the grounds of unlawful discrimination, resulting in a disadvantage to you. An employers' ignorance of the Human Rights Act would be no defence to a complaint of discrimination.

We asked the HRC if there were any examples of recent LGBT-related workplace complaints. They sent us details of two complaints – with all names changed to protect the identities of those involved:

(1) Caitlin complained that her employment relationship broke down after she began gender transitioning and identifying as a woman at work, leading to termination of both her job in a small business, and her apprenticeship. After resolving the apprenticeship issue with the requisite industry training organisation she said she still wanted to meet with her ex-employer, Wayne, to discuss what had happened and have him understand more about her situation. She particularly wanted him to read the Human Rights Commission's Report of the Inquiry into Discrimination experienced by Transgender people. At mediation Caitlin met her objective of explaining her situation, and feeling heard. She also learnt about factors which had affected the way Wayne had responded to it. He agreed to read a copy of transgender study paper To Be Who I Am.

(2) Mary had applied for a job as retail manager of a shop in the South Island and was interviewed. She said that she was informed that she didn't get the job because she was "inappropriate" - but she believed that it was simply because she was transgender. At mediation the employer, Mike, denied that he had used the word "inappropriate" and that what he had said was that Mary was not qualified enough. He apologised for not being more thoughtful about what he had said. He said that he would employ Mary in another part of the business. However, Mary remained certain that the word "inappropriate" had been used and therefore did not feel the matter was resolved.

If you have any questions about discrimination, or have your own experience of discrimination and wish to make a complaint, you can contact the Human Rights Commission on 0800 496 877 or by emailing: infoline@hrc.co.nz.

The full Human Rights Commission guide to Getting a Job can be downloaded from the link below.


 
Matt Akersten - 17th August 2008