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Okechukwu Effoduh: Legal considerations on employment discrimination based on sexual orientation
On an episode of F.R.I.E.N.D.S., Gunther the bartender (who is unrepentantly smitten by Rachel) sees a rival walk into his cafe. He dashes into the backroom and returns with a small paper board that reads: “we reserve the right to refuse service to anyone”.
The argument as to whether he was right or not would take forever to make, and just as long to decide, seeing as there’s much merit on either side of the divide. This notwithstanding, both sides would agree that when a financially capable individual walks into a building for the purchase of a good or service, his denial of same is a tad offensive. Hence, Gunther’s conduct was offensive. But the component of his refusal that makes it offensive is not so much the refusal as it is the reason for his refusal.
Freedom thrives on the soil of the law. If there’s anything legislation seeks to achieve, it is to integrate a person’s rights and personal liberties into the fabric of the state such that an affront to any such right would offend the state and automatically be subject to official, enforceable redress. These liberties range from the very key ones (like the right to personal dignity), to the presumably negligible ones (such as freedom of contract).
Freedom of contract is basically the right of a person to enter into a contract (or refrain from entering into one) without being compelled by law or any other actor to do otherwise. Like every right, this one comes with derogations (the court may order specific performance compelling a party to perform a contract or make a vesting order that conveys real property from an unwilling vendor to a purchaser). It still remains a general rule though that every individual who is competent to make or partake in commercial transactions has a right to freely choose- not just what contract to enter but on what terms to enter into one.
But when does freedom of contract become an oppressive sword- if ever? Every first year law student knows that a man’s right stops where another starts. So if the exercise of my rights as they relate to contract, I cause another human being to feel less worthy of life, I’m guilty of some excess. I remember the story of an hotelier who refused to lodge a gay couple on account that their sexual preference offended his religious faith. The couple sued and got judgment in their favour. The court reasoned that all they were asking for was a place to lay their heads- not for a scrutiny or endorsement of their sexuality.
This is just a tip of the iceberg as to what members of the LGBT (lesbian, gay, bisexual and transgender) community face. Some decades ago, openly gay teachers in the United States were compulsorily relieved of their duties- they were perceived as a corrupting influence on the kids they taught. Similarly, openly gay people couldn’t serve in the United States’ military until the Obama administration undid the Clinton-era “don’t ask, don’t tell” policy. Bringing the point closer home, a bill recently before the Nigerian Senate seeks to jail people for the mere fact that they are lesbian or gay.
According to the Human Rights Campaign in the US: “Qualified, hardworking Americans are denied job opportunities, fired or otherwise discriminated against just because they are lesbian, gay, bisexual or transgender (LGBT). There is no federal law that consistently protects LGBT individuals from employment discrimination; it remains legal in 29 states to discriminate based on sexual orientation, and in 34 states to do so based on gender identity or expression. As a result, LGBT people face serious discrimination in employment, including being fired, being denied a promotion, and experiencing harassment on the job.”
Employment is very much a contractual issue. The employer offers while the employee accepts the offer or rejects it. The other legal ingredients of contract (capacity, consideration and intention to create legal relations) can also be gleaned from a typical employment scenario. Flowing from this, it’s safe and legally correct to posit that the entire gamut of the law permitting freedom of contract applies to employment as well.
So when does refusal in employment or contract lend itself to illegality thereby stretching the bounds of freedom?
When it is discriminatory;
When it doesn’t flow from pre-established rules;
When it consists of actual slurs and stereotypes; and/or
When it is calculated to embarrass the refused.
From the American Civil Liberties Union website: “Employment discrimination against lesbian, gay, bisexual and transgender workers is pervasive and harmful. It violates core values of fairness and equality by discriminating against qualified individuals based on characteristics unrelated to the job. Over the years in America, Congress has responded when it found that people were not being hired or promoted for unfair or arbitrary reasons, such as race, gender, national origin, or disability. When Congress has found such discrimination, it passed laws to restore civil rights by ensuring arbitrary considerations do not determine access to employment. We believe such legislation continues to be an essential part of equal protection under the law.”
The Employment Non-Discrimination Act (ENDA) is legislation proposed in the United States Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees. ENDA is still a pending federal legislation that would ban employment discrimination based on an individual’s sexual orientation. The bill protects workers from discriminatory hiring, firing, promotion or compensation practices, as well as retaliation for reporting such practices.
There are a few known cases in Nigeria where several persons have been fired from their employment based on their sexual orientation or gender identity. These dismissals are not contested because of the fear that it will only make matters worse when people find out that it is because of their sexual orientation that is why they were fired. According to Dele Ajayi, one of Nigeria’s leading employment consultants: “there are a few instances where my clients have told me that the reason why they were dismissed was because of their sexual orientation but we find it difficult to challenge their employers on that ground because our laws have not put discrimination in terms of sexual orientation into reality. We have not yet subscribed to the fact that discrimination such grounds are prejudicial and inequitable that is why in many instances I resort to alternative dispute resolution other than litigation.”
Labour Lawyer, Hadiza Ashabu adds that “employers can be somewhat fraudulent by looking for flimsy reasons to dismiss their employees. There are types of businesses where a person would serve his/her master for a year or two or even five years without remuneration but under the consensus to be settled with a lump sum at the end of the tenure. What happens is that once it’s getting close to the end of the agreed duration, the employer may then accuse the employee of some crime or dismiss him/her on insubstantial reasons in order to avoid “settling” the employee. Also, many employers in Nigeria abuse the rights of employees because many employees are helpless and dependent on their meager salaries to survive. Talking about the issue of discrimination on grounds of sexual orientation in the workplace, it is rather unspoken, but a few are actually affected. I see no reason why anyone will be fired from their employment because of their sexual orientation as long as it doesn’t affect their work delivery.”
In the US, employees are unable to find protection in the courts because sexual orientation is not considered to be a suspect class by the federal courts and by many U.S. states. Advocates argue that homosexuality is not a “choice” but a personal identity, a claim supported by the American Psychology Association, and that all working people have a right to be judged by the quality of their work performance and not by completely unrelated factors. Opponents of the Employment Non Discrimination Act sometimes argue that gay people should not be considered a “protected class of employees” by law. However, ENDA would not protect “homosexuals” as a class; rather, the law would ban discrimination in employment based on any sexual orientation, including heterosexual orientation. Consumer surveys show that self-identified gay individuals likely have higher incomes than the average US household, and ENDA opponents argue that many gay people hold positions of cultural influence as well.
In Nigeria, Section 42 of our constitution guarantees every Nigerian a right to freedom from discrimination; however, there is no specification on discrimination on basis of sexual orientation.
As an increasing number of corporations in the US (and surprisingly also in Nigeria) already have policies prohibiting discrimination on the basis of sexual orientation. Former New Republic editor Andrew Sullivan, actually oppose ENDA in part because they believe that changes in corporate policy would represent a more democratic, and therefore more culture-changing, approach to the problem of workplace discrimination–while ENDA would abruptly introduce a new rule that, if unnecessary, could actually put an end to a very productive national movement to make corporate policies more inclusive.
In Nigeria, proposing a federal law for non-discrimination on grounds of sexual orientation is like waiting to find tomorrow already continuing yesterday because homosexuality is perceived as an aberration from moral rationality; hence such a law may fail on the grounds that it will go against public morality. Perhaps if the ENDA is passed in the US it might be of persuasive inspiration to employment matters in our jurisdiction but nothing restricts corporate entities from having workplace policies that would prohibit discrimination on basis of sexual orientation after all there is a rise on HIV work place discrimination policies established in many Nigerian institutions even though the HIV anti-stigma bill is yet to be passed. Having a policy to deter discrimination based on sexual orientation will do a company well because diversity in the workplace always advances continued success.
In Chukwuma v. Shell Petroleum Development of Nigeria Limited (1993) 4 NWLR (Pt. 289) 512. The Supreme Court of Nigeria which is the Apex court held that where parties have reduced the term and conditions of service into an agreement, the conditions must be observed. In addition, the court held that a master is entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all. Consistent with this principle, that the court will not impose an employee on an employer. That is one of the principles of Nigerian employment law.
In jurisdictions like the US, the issue may be finding a balance between the rights of employers and the rights of LGBT people but in Nigeria though, the pressing issue would be the determination of the scope of the rights of LGBT persons, for as it is, they are no better than un-sentenced convicts.
And this is such a shame.
By Okechukwu Effoduh
Okechukwu has been a freelance journalist for 6 years. He anchors a radio programme under the BBC
Media Action called “Flava” – a native youth programme on HIV and other sexual reproductive health
issues which is aired on over 90 radio stations in Nigeria with about 24 million listeners tuning in weekly.
Okechukwu is also a Human Rights Lawyer and was nominated by the US government to participate in
a one week Human Rights Tour in the US where he acquired a firsthand experience on the LGBT issues
prevailing in America.