Long, long ago, I briefly (more or less accidentally) edited a glossy magazine. My employers rightly surmised that I might need advice and sent me to see a legendary editrix who had been a mighty force in the fashion-mag world for decades. She looked at me pityingly and said: “One thing:
Watch your chromosome count”. I blinked. What could she mean? Sighing, she spelt it out: “The gay boys, dear. Obviously one can’t run a magazine without them, but don’t let numbers get above a critical mass. Always leads to trouble.”
I was shocked. I was a liberal child of the Sixties, at ease with gay friends. So I ignored the advice. Never mind whether she was right or not, for I staggered out of that weird glossy world for ever six months later, disproportionately older and wiser.
I tell the story just to illustrate how times have changed; even the grandest of grandes dames would not now dare say such a thing. And only the stupidest now assume automatically that all homosexual men are artistic and queeny; the quickest glance around at public life shows us that some of the most temperamental hissy-fits are performed by heterosexuals, and that a lot of “out” men are as placid and unstylish as any Fifties’ Pipe Smoker of the Year. I suppose there was a time when law and prejudice were so violent that queening around like Quentin Crisp was a gesture of stark, heroic political bravery for a gay man. It isn’t now: it’s a lifestyle choice.
It is good thing that society has largely outgrown its homophobia. It is good that senior policemen such as Brian Paddick, dullish Cabinet ministers such as Chris Smith, dutiful clerics such as Canon Jeffrey John and powerfully masculine actors such as Sir Ian McKellen have come out. It makes it easier for us all to stop thinking of gay men and women as a homogeneous alien species and see them as individuals: kind, callous, artistic, insensitive, idle, brilliant, stupid, fascist, holy, boring, funny, fascinating, faithful, treacherous — whatever.
In the employment field, to discriminate against somebody for being gay is not only unkind but stupid. What the old editrix should have said is: “Don’t put too many touchy characters in a small office”, which is mere common sense. And, if you must know, in the event the worst people on that excitable magazine were female, and straight. The gay men were angels. Mostly.
Anyway, I tell the tale to mark yesterday’s introduction of the statutory instrument Employment Equality (Sexual Orientation) Regulations 2003. This assembly of lawyerly paragraphs and sub-paragraphs takes in everything, including the different jurisdiction in “The Frigg Gas Field, meaning the naturally occurring gas-bearing sand formations of the lower Eocene age located in the vicinity of the intersection of the line of latitude 59 degrees 53 minutes North and of the dividing line between the sectors of the Continental Shelf of the United Kingdom and the Kingdom of Norway.”
But for all this fussy precision, it reads like a randomly drafted lump of political correctness which will lead to nonsensical tribunals, stupid compensation claims, divisions, suspicions and a hardening of resentment against gay people.
The Government calls this a “review” of employment and anti-discrimination law, but in fact it is not a review, not an attempt to go back to first principles and calmly consider the realities of the modern workplace. Rather, it is a cavalier extension of the existing provisions covering sex, race and disability discrimination, stretching the formula to include not only sexual orientation but “perceived sexual orientation”.
It is a recipe for confusion. If someone is black or Asian or female or disabled, that at least is usually unarguable. You have a starting-point. But if you can say you are being done down because you are “perceived” to be potentially attracted to members of your own sex, we have set up a perilously vague offence. Moreover, the instrument states that a major factor in the offence is “the perception of B (the victim)”.
So people with grievances need not even state their actual sexuality when making a complaint that the employer thought they were gay, or looked at them as if he thought they were. “I think that you think that I’m gay, and I perceive — in my own head — that this must be why I didn’t get the office manager job”. Moreover, they can sue for homophobia even if the boss was so occupied with completing the VAT returns that he had never even wondered which sex his office junior slept with. The potential for chaos and wasted time and pointless ill-feeling is horrifying.
Moreover, employers — always the patsy when such laws are gaily brought in — may be sued not only for bullying and harassing of gay employees (which is obviously just, and already covered by law) but also for something vague called “violation of their dignity” in the general work environment. This includes the way other workers behave, even down to casual water-cooler jokes.
Alas! Barely a day goes past in most workplaces without someone saying something which could be construed, by the hypersensitive, as violating the dignity of someone else. This newspaper recently carried a very funny piece on “How to treat your pregnant colleague”, which if left lying on the photocopier in this notional workplace could be construed as offensive by any fertile woman who happened to be passing by. The recent outbreak of bad-taste jokes about royal valets could — given a few malcontents — have brought most of the country’s industry and commerce to a grinding halt.
And what about the other regulations coming in this week, twin brothers of those on sexuality? These cover “religious or philosophical beliefs”, which can now equally be grounds for discrimination. But what do you do if you have a couple of openly gay employees and decide that, for the sake of a quiet life, you will not give them a Catholic secretary who agrees with the Vatican that homosexual acts are “objectively disordered”? Are you going to discriminate against her on grounds of her religious belief? Or give her the promotion and hold your breath in the hope that she doesn’t have a provocative copy of L’Osservatore Romano poking out of her shopping-bag, creating an “intimidating, hostile, degrading, humiliating or offensive environment” for the chaps? Or else, horror of horrors, they might strike up a conversation about the nun costumes on the Gay Pride march, provoking the secretary to sue the employer too.
And what, for heaven’s sake, is the legal definition of a “philosophical belief”? One barrister recently wrote in despair: “Will pharmaceutical companies be breaking the law if they refuse to employ animal rights activists?”. And even if you’re not a pharmaceutical company, if you hire the animal activist, will you be getting on the wrong side of disability discrimination law because her known beliefs create a hostile environment for a disabled employee kept alive by drugs tested on animals? It’s enough to send any boss shrieking off to the Frigg Gas Field for a quieter life.
You may say people will not use the new law stupidly: but some will, because that is human nature. You may say tribunals do not uphold stupid or frivolous claims; but lawyers in the field estimate that already some 60 per cent of discrimination claims are ill-founded, yet they take up time and the complainants are hardly ever made to pay the costs.
When any disappointment or rebuke may lead to such disastrous complications, it is employers who lose, as usual. Who can blame them if they ship jobs out to India, or say — as one did to me — “I now do anything I can, change any system or refuse any contract, in order to avoid recruiting. People are not human resources any more, they’re human bloody time-bombs. I wish I could work with robots”. If the great Gulliver of commerce and industry is tied down with 1,000 fiddling threads, how can it stride ahead?
Employment law should be reviewed — but really reviewed. It should be possible to guard workers against bullying and prejudice, while spelling it out that they have a duty to show robustness, humour and a sense of proportion. Tribunals should throw out self-indulgent or paranoid claims, frivolous litigants should pay costs and statutory instruments should not put weight on the “perception” of persecution. I hope that gay men and women, and indeed religious ones, will not use this law cavalierly. But a few will, and a few is too many.
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