Lesbian and gay rights in the workplace

I have HIV/AIDS!! This is something one dares not tell an employer especially in Ghana for obvious reasons. The other is “I am GAY!!”

A client approached me some time ago with a complicated situation of being a homosexual who has been diagnosed to have HIV/AID. According to him, he had contracted HIV/AIDs through his ex-boyfriend. That he has been living with the disease for close to 10 years and as for being Gay, he picked up the habit in Secondary School. Meanwhile, he has risen through the ranks to his position at the time as a relationship manager for one of the financial institutions in the country.

I told him “this must be very tough on you I suppose. And I wish I could say I know what you are going through but I have to confess I can only imagine what you must be going through currently.” I assured him however that there is really nothing wrong with him when it comes to workplace policy especially where his condition does not affect the performance of his job. In fact, HIV/AIDS and treatment have now become like any other fatal illness such as diabetes, blood pressure related health complications, and other health conditions.

As for the sexual orientation which many (including myself) frown upon, I can say that it is a private matter and in the workplace, one is not obliged to disclose such private and personal information unless it directly endangers other employees or directly affects performance on the job. So this week, we will try to explore the issues of workplace rights to personal health and confidentiality. We will also try to understand issues surrounding ethics and conflict of interest while explaining workplace rights. Finally, we will discuss possible remedies available to anyone in specific or similar situation described above.

Understanding Workplace Ethics and Conflict of Interest…

Ethics is a set of moral principles, rules or standards that guide a group of people in a community, profession or work team. Ethical standards or principles ensure that people interrelate or interact with their neighbours, team mates or colleagues in good faith. Ethics is simply about the choice to do the right thing instead of the obvious, tempting and rewarding wrong.

Unfortunately, doing the wrong thing continuously can become a norm that seems right. In the workplace today, employers are struggling to keep a tight lid on ethics in good behaviour and attitude. The obvious wrong is more tempting and perhaps more rewarding in many circumstances. But what has sexual orientation in Homosexuality and Lesbianism got to do with Workplace Ethics?

Ethical standards in the workplace promote excellent practice or work. Increased output and profits as well as respectable and dependable brands can be identified with environments that uphold strict ethical standards. Ethics also deal with morality. And this is where the problem begins – confusing morality with ethics. I personally try to avoid relating ethics to morality because instead of a simple right or wrong, the definition for morality or immorality has often been misconstrued in respect to sex, fidelity, sexual orientation, infectious diseases such as HIV/AIDS etc.

Morality in the workplace is simply to do ‘good’ and be kind to colleague workers, be decent and to act with integrity in the interest of the organization. As to what and employee does with time outside of work, in so far as it does not affect the quality of work the following working day, I am sure there will be no problems with the supervisor or Boss. In my personal and professional opinion as a workplace practitioner, I sincerely wonder what possibly could be the problem with an employee’s sexual orientation (be it Gay or Lesbian) or any other sexual practice they choose to indulge in after close of work and in the comfort of their homes?

It is also important to understand conflict of interest while exploring issues of sexually orientation and HIV/AIDS. The closest regulation or set of statutory regulations on conflict of interest in Ghana currently is the Guidelines on Conflict of Interest developed by the Commission for Human Rights and Administrative Justice (CHRAJ) in 2006 and another launched by the president last year for all public officers.

The guidelines were developed to assist and guide public servants in the country on issues of Conflict of Interest in the Civil and Public Services of Ghana. And I believe we can borrow the contents of the guidelines for the private sector as well, especially as it is the only ‘regulation’ or guideline we have on conflict of interest so far.

The guidelines define Conflict of Interest as “a conflict between the private interest and the official responsibilities of a person in a position of trust”. When an employee is employed to work fulltime for an organization, his/her time for at least 8 hours on each working day is bought over by the organization. S/he is expected to use all 8 hours to work for and protect the interest of the employer and organization.

Anytime an employee uses part or any of the ‘business’ time for his or her own private interest (without permission or approval), there is developed a clear conflict of interest between the employees private interest and his/her official responsibility and duty of work. The employees’ psychological contract with the organization imposes responsibilities and obligations of trust on the employee. Where this psychological contract is broken, a conflict of interest situation arises.

In light of the above, you will realise that it is insignificant or trivial to consider conflict of interest only in terms of financial gain as is commonly interpreted. And there is simply no ground for imputing conflict of interest into sexual orientation or HIV/AIDS infection in the workplace against employees who indulge in or are infected with such illness and preferences.

Truth is, the choice for a person to become a homosexual or lesbian is a personal decision which anyone is free to decide, I am yet to hear about anyone who has been arrested by the Police for declaring that they are Gay or Lesbian. Though our Laws and Culture frown upon such behaviour or practice, the focus of prosecution or wrongdoing is more on the practice rather than the declaration of one’s sexual orientation. And in the workplace, once such ‘abnormal’ personal attributes or preferences do not affect employee’s performance on the job, it cannot be fair to discriminate against that employee for the personal values and attributes they choose to practice or believe in so far as it does not affect their work and that of other work teams they interact with. I know I am certainly going to make a lot of enemies for saying this but it is true and must be put in the right and objective perspective.

Rights of Employees in the Workplace…

The Labour Act, 2003 (Act 651) outlines the specific rights of an employee in the workplace. This includes the right to work under satisfactory, safe and healthy conditions, to receive equal pay for equal work without distinction of any kind. It is important to reiterate the phrase “without distinction of any kind” which also covers approved age, sex, colour, political orientation, creed, race, religion, ethnic origin social and economic status etc. Now whether the status of sexual orientation can be considered as legally acceptable as a social status is another matter. But if it can be considered as an existing social status in this country, then of course we may have to take a closer look at this in respect of discrimination against such employees in the workplace.

The International Labour Organization (ILO) Convention 111 on discrimination which has been ratified by 142 countries including Ghana provides for discrimination against HIV/AIDS status and sexual orientation in the workplace. I am more concerned with the workplace rather than the circular precincts of the issue of decriminalizing social practices such as Homosexuality, Lesbianism and prostitution which is a separate matter altogether. But here and in the workplace, we want to keep the confidential sanctity and principle as an employee’s right and hence, once an employee’s status does not affect his or her performance on the job, I believe it can be tolerated. That is what the right to confidentiality should mean to an employer.

Employees also have the right to have rest, leisure and reasonable limitation of working hours and period of holidays with pay as well as remuneration for public holidays. They also have the right to form or joint a trade union of their choice and be trained and retrained in their jobs for the development of their skills. Finally, the Labour Law offers employees the right to receive information relevant to their jobs or work.

With rights and power come responsibilities also. And I believe once employees live up to their responsibilities in the workplace they should be accorded the necessary treatment and preferences as anyone else no matter their social status.

The duties of employees in accordance with the Labour Law include the duty to work conscientiously in their lawfully chosen occupation and report to work regularly and punctually. Employees are duty bound to enhance productivity in the workplace and for the business to which they are employed to exercise due care in the execution of their assigned work. Further, employees have the duty to obey lawful instructions regarding the organization and the execution of their work and take all reasonable care for the safety and health of fellow workers as well as protect the interest of their employer, including their immediate supervisor, manager or head of department. Finally, the Law enjoins all employees as a duty to take proper care of the property of the employer entrusted to them or under their immediate control.

From the above duties, it is evident that the Law does not mention anything about HIV/AIDS status or sexual orientation. The duty of an employee is to see to the needs and benefits of the organization to which s/he is employed and to protect the interest of the business, organization or employer. Hence, to discriminate clearly against an employee because of his/her sexual orientation or HIV status is not good practice.

ILO convention 111 has been ratified by Ghana. The National HIV/AIDS Policy of the country frowns on or discourages employment discrimination on such grounds. That is an issue for another day but it is important to restate that once an employee’s job performance is acceptable and satisfactory, it is only fair that employers do not allow personal and cultural interference to affect decision making on employee’s employment status.

Truths about Workplace Discrimination…

The Labour Law which is also in accordance with ILO Convention 111 states that “an employer shall not in respect of a person seeking employment or of persons already in employment discriminate against a person on grounds of gender, race, colour, ethnic origin, religion, creed, social or economic status, disability or politics. Social Status has been explained to currently include status of HIV/AIDS and Sexual Orientation.

The duties of employees in accordance with the Labour Law include the duty to work conscientiously in their lawfully chosen occupation and report to work regularly and punctually. Employees are duty bound to enhance productivity in the workplace and for the business to which they are employed to exercise due care in the execution of their assigned work. Further, employees have the duty to obey lawful instructions regarding the organization and the execution of their work and take all reasonable care for the safety and health of fellow workers as well as protect the interest of their employer, including their immediate supervisor, manager or head of department. Finally, the Law enjoins all employees as a duty to take proper care of the property of the employer entrusted to them or under their immediate control.

From the above duties, it is evident that the Law does not mention anything about HIV/AIDS status or sexual orientation. The duty of an employee is to see to the needs and benefits of the organization to which s/he is employed and to protect the interest of the business, organization or employer. Hence, to discriminate clearly against an employee because of his/her sexual orientation or HIV status is not good practice.

ILO convention 111 has been ratified by Ghana. The National HIV/AIDS Policy of the country frowns on or discourages employment discrimination on such grounds. That is an issue for another day but it is important to restate that once an employee’s job performance is acceptable and satisfactory, it is only fair that employers do not allow personal and cultural interference to affect decision making on employee’s employment status.

Truths about Workplace Discrimination…

The Labour Law which is also in accordance with ILO Convention 111 states that “an employer shall not in respect of a person seeking employment or of persons already in employment discriminate against a person on grounds of gender, race, colour, ethnic origin, religion, creed, social or economic status, disability or politics. Social Status has been explained to currently include status of HIV/AIDS and Sexual Orientation.