Tag Archives: labour law

No legal protection for employees fired for their lifestyle, appearance or family choices

 

 

First published on The Fifth Column, July 2015

 

Could you be fired for your lifestyle, hair, or past job? It could be more likely than you think.

We tend to think that we’re protected by antidiscrimination and labour laws. But people have been fired for being an unmarried mother, previously being a call girl and being kinky, and those with a previous work history in the adult industry continue to fear being fired if their previous career is exposed.

The case Flynn v Power concluded that it is permissible in Ireland to fire a woman for being pregnant while unmarried. However, these days EU states are bound by the European Convention on Human Rights (Article 8 recognises the right to private and family life) and the EU Charter of Human Rights. Art 6 1) TEU holds that “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights…which shall have the same legal value as the Treaties.” Relevant provisions are: Art 1 “Human dignity is inviolable. It must be respected and protected”, Art 7 “everyone has the right to respect for his or her private and family life”, Art 9 “The right to marry and the right to found a family shall be guaranteed”, Art 21 “Any discrimination based on any ground such as sex…social origin…membership of a national minority [or] birth….shall be prohibited.”

Though the Charter is ‘soft law’ and applies to Member States only when implementing EU Law, it is likely that anyone fired for being an unmarried parent would win their appeal if they brought a case to the European Court of Justice. The ECJ has previously interpreted “family life” to include children of unmarried and lone parents (Johnston v Ireland (1986), Eur. Ct. H.R., Ser. A, No. 112, Marckx v Belgium (1979) 2 EHRR 330:342, Berehab v Netherlands (App. 10730/84) 21 June 1988 Series A No. 138, (1989) 11 EHRR 322 S21 and Keegan v. Ireland (App.16969/90) 26 May 1994, Series A No. 290 (1994) 18 EHRR 342 S44).

They could alternatively bring their case to the European Court of Human Rights, or argue on EU Law within their domestic court.

However, this is the only type of family choice currently protected by antidiscrimination law. If a potential employer doesn’t hire you because you’re a young parent or live in a polyamorous household, there’s no statute to protect you.

Because of the Equality Act 2010 which makes it illegal to dismiss an employee for having gender reassignment, transgender individuals have more protection in the UK than in the US, where transgender people have been fired. But a lot of heterosexuals don’t have any protection from employer discrimination. Fetishes, kinks, polyamory and sex work are as yet unprotected. So if you happen to be kinky, are currently in a polyamorous relationship or have ever worked in the sex industry – no matter how long ago that was – you can be fired. BDSM is not recognised as a sexual orientation in the UK, and so kinksters don’t enjoy the same legal protections as LGBTQIA employees. Dismissals for being into BDSM have occurred in Canada, the US and UK. American teacher Melissa Petro was fired from her teaching job for being a sex worker while she was a student. So even your past can affect your present career.

Employers aren’t allowed to discriminate on the basis of gender, race, religion or sexuality; these are basic legal principles. But there are plenty of things connected with the issues of sexuality, race, and gender which aren’t protected. For example, if a man is discriminated against and not hired because an employer deems his long hair ‘unprofessional’, that is a form of gender discrimination if the same employer would have hired a woman with the same length hair. In the same way, an employer might discriminate against a white man who wears cornrows or dreadlocks while a black man wearing the same hairstyle might be accepted because these hairstyles are a part of his heritage. Similarly, black women sometimes damage their hair with relaxers or hot combs to get a ‘professional’ look as they feel that their natural hair isn’t quite good enough. As yet there are no employment regulations which protect a black or mixed race woman’s right to wear her hair in its natural state. In the US women have been fired for wearing their natural hair and for wearing dreadlocks. There are also no laws to stop you being discriminated because of your hairstyle, piercings or other body modifications like tattoos or scarifications.

It is obvious that the current anti-discrimination laws fail to protect people vulnerable to employer discrimination. Perhaps one solution would be to extend and strengthen the existing anti-discrimination laws to enable more marginalised groups to use them against their employers. But employers won’t usually be stupid enough to say “I’m not hiring you because you’ve got tattoos”. So even with strengthened antidiscrimination laws, it might be difficult for the victims to prove discrimination. Even if employers can’t fire their staff or refuse to hire candidates for having being in a polyamorous relationship or having scarifications, they could use other excuses to fire them.

But if more laws or extending existing ones may be of limited help, changing attitudes might just make more of an impact. Discrimination wouldn’t exist without prejudice, and when there is no more discrimination there won’t even be any need for discrimination laws.

To conclude, it’s probably the changing of prejudicial attitudes that is more likely to ultimately result in more protection of employee rights. But until this social change occurs, any of us could be fired for our lifestyle, family form, appearance or previous jobs. You might think that you’re safe- but so did everyone who has been fired simply for being who they are.

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Families, minority communities and social workers: how antidiscrimination and labour rights for social workers can help families

In current UK practice, families are often matched with social workers and case workers who can best understand them. This means that, ideally, queer social services clients are matched with queer social workers, and minority clients with minority social workers, and so on. But there isn’t really a “so on” because that’s where it stops.

Where are the social workers who are drug users, living in poly households, part of the fetish or BDSM community, or former or current sexworkers? Even lone parent or white social workers with minority partners aren’t that visible.

It’s not that they aren’t there. All social workers were once students, so most of them have experienced being drunk, experimenting with drugs, and so on. Many will have experimented with BDSM and although poly social workers will be in the minority, experiences of a certain degree of ‘sharing’ partners temporarily (for example, through random hookups with people who are themselves seeing other people). They are us, and they’ve had our experiences. This goes for other professionals too. That drunk girl in the corset and micromini stumbling home from the club and dragging a guy she just met back with her might be teaching your kids in two years. That lad spewing up his guts as he holds onto a lampost might be on the Children’s Panel someday

And that’s wonderful, because without knowing their clients’ experiences, how can social workers engage with them and offer help and support? It’s unfortunate that most of them aren’t open about belonging to minority communities. It’s like it’s okay to be gay, but not to be poly, kinky or a drug user. These minorities are in the same position that the gay community was in half a century ago.

I can only surmise that they aren’t open because they fear being stigmatised, or not being promoted – maybe even losing their job. In 2008 a criminal justice social worker was fired in the UK because he was kinky (his boss found out he had a small online fetish clothing business and went to SM clubs). The European Court of Human Rights refused to hear the case, saying he was unreasonable not to see why they couldn’t employ him. A teacher in Ireland was fired for being pregnant while single (the case was recorded as Flynn v Power). A teacher in America called Melissa Petro was fired for having previously been a call girl when she was a student. Imagine if any of these people was fired for being gay, black or Jewish. There would be outrage. But because they’re kinky, a single mum, and a sexworker, nobody cares.

Labour rights and employment laws clearly need to be strengthened or changed to stop this discrimination against minorities and ensure equal human rights. Right now, sexual and ethnic minorities have more rights. Perhaps kinky, poly, single parents and sexworkers could be included under the umbrella term of ‘sexual minorities’ since they are discriminated on the basis of sexual proclivities, sexual behaviour outside marriage, and sex industry labour respectively. Enhancing the definition of sexual minorities to include these people and not just LGBTQ people, would better ensure equality.

Sadly, not only were these individuals targeted for severe discrimination, the families who are receiving social work services are losing out, too. How much could a bullied, slut-shamed teenager benefit from a social worker mentor and role model who is a former or current sexworker? Her confidence and outlook would change, and perhaps she could even educate her peers about slut-shaming. What about a young boy whose friends tease him for living in a poly household? How much might he benefit from a poly social worker who understands prejudice and can help him through these difficult times? I won’t go on – I’m sure you can think of some more examples.

Also, if social workers and other professionals are seen to be poly or kinky or ex-sexworkers, these groups will gradually not be stigmatised much (or at all). A hundred years ago if you were cohabiting it was ‘living in sin’ – yet now people are open about it, it’s more common and accepted. When educated, middle-class people are seen to be doing something, it can help alleviate stigma and it can also help to slowly normalise the issue, just as cohabitation and being gay has gradually been normalised. Even single parenthood and being kinky have been normalised to some extent; but we need to go further. Much, much further. And with poly people and sexworkers, the work has hardly begun (though not for want of trying).

But first things first – we have to work on employees’ rights (labour law and employment law) and on antidiscrimination laws.

But until

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