making homophobic comments concerning an openly gay employee who uses similar words is still discrimination
Does it matter by whom potentially discriminatory comments are made?
In the context of race discrimination, whether words are discriminatory has for some time involved consideration of who said them. In particular, self-referencing use of obviously abusive and discriminatory terms has become commonplace in the music industry and elsewhere. One argument put forward is that the use of such words by black people is a way for them to take control of them and thereby diminish their effect. It is an obviously difficult and controversial proposition. For example, it blurs the distinction between what “society as a whole” (if there is such a thing) regards as unacceptable abusive, discriminatory and derogatory words.
How does this apply in the case of homophobic taunts. There has been a good deal of recent coverage of problems in schools and in the field of sports. This month former Aston Villa and VfB Stuttgart footballer Thomas Hitzslperger came out and is one of the very few sports professionals to have done so. In doing so he said that it had not been easy to live with some of the comments dished out on the subject. Meanwhile, in schools, 99% of 1600 gay teenage pupils interviewed said they had heard homophobic language used regularly. In response Stonewall has launched a campaign fronted by Will Young to tackle the problem. Highlighted as a particular concern is the use of the phrases “you’re so gay” and “that’s so gay” in a disparaging context.
A workplace example of the misuse of homophobic terms was considered by the Employment Appeal Tribunal in Smith v Ideal Shopping Direct Ltd. Mr Smith joined Ideal Shopping Direct as a TV operations project manager in late 2009. He was dismissed in July 2010 following an altercation with a Ms Pearce. He was told by Ideal’s most senior employee that Ms Pearce might raise a formal complaint and said that, if she did so, he would lodge a complaint about the employer’s response to matters concerning his sexuality. Ms Pearce did complain and this led to disciplinary proceedings. On 14 July he was asked to attend a disciplinary hearing on 19 July. As he said he would Mr Smith said that he would be raising a grievance about having been bullied and subjected to homophobic behaviour by other staff in the workplace.
On 15 July he was summarily dismissed. The reasons given were those that had led to the commencement of the disciplinary proceedings.Details