Employment Discrimination on the Basis of Sex or Gender
Workplace discrimination based on sex or gender is prohibited under both federal and certain state laws. It is unlawful for an employer to treat a job applicant or employee unfavorably because of sex or gender with regard to any employment action. These may include termination, failure to hire or promote, lower pay for equal work, bad job assignments, failure to train, or failure to pay fringe benefits. Harassment and retaliation are also prohibited.
The most prominent federal law that prohibits sex discrimination is Title VII of the Civil Rights Act of 1964. Discrimination against someone because of a transgender identity, which is known as gender identity discrimination, is also sex discrimination under Title VII, according to the EEOC and several federal district court decisions, as of the time of writing. Taking an adverse action against an employee based on his or her connection to an organization generally associated with people of a specific sex can also serve as a basis for a claim of sex discrimination.
Sex Discrimination Under Title VII
Title VII forbids sex discrimination based on all aspects of employment. Discriminatory actions and policies can be divided into two categories: disparate treatment or disparate impact. Disparate treatment in the context of sex discrimination is any unfavorable treatment that is motivated by an employee’s sex or gender identity. For example, a company may not refuse to hire a woman who is equally skilled as the male applicants for a position, solely because she is a woman. Similarly, a supervisor may not refuse to promote a transgender person on the grounds that the person does not conform to expectations of what a woman or man should look like.
Disparate Treatment vs. Impact
Disparate treatment = a job applicant or employee is treated unfairly because of their membership or perceived membership in a protected group Disparate impact = a policy appears neutral but has an adverse impact on a protected group
Employment policies that have a disparate impact look neutral on their face but wind up having an adverse effect on people of a particular protected group, even though the employer denies he or she intended to discriminate. In the case of sex discrimination, for example, a promotion system in which supervisors are asked to list employees who have vaguely defined “leadership qualities” may result in lists of only male employees. This policy, although neutral on its face, may have a disparate impact and thus be discriminatory. If an employee shows a disparate impact in a discrimination lawsuit, the employer can defeat the claim by showing that the policy or practice is job-related or based in business necessity.
It is also unlawful to harass an employee based on his or her sex. The type of harassment most frequently associated with sex discrimination is quid pro quo sexual harassment. This usually happens when unwelcome sexual advances are made towards an employee in exchange for a promotion or under the threat of an adverse employment action, like demotion or loss of pay.
Sex discrimination can also include harassment based on offensive comments about a person’s sex. For example, making offensive jokes about women can be considered harassment if these comments are so frequent or pervasive that a reasonable person would find the work environment hostile, abusive, or intimidating as a result of the jokes.
Who can be held liable as a harasser under sex discrimination workplace laws? Most people think of a harasser as a victim’s supervisor or someone in a higher position at the company. However, a coworker or even a person who is not an employee of the employer, like a client or customer, can be a harasser in violation of Title VII.
Regardless of the identity of the person who is harassing you, you should report the unlawful conduct to your employer. Even if somebody works for another company or is a client of your company, your employer has a legal responsibility to take immediate steps to correct the problem. Although there are limits to what your employer can do if the harasser is not an employee, the employer can assign someone else the client or customer, ask the harasser’s supervisor to step in, threaten to end the business relationship, or meet with the harasser to ask him or her to stop.
If an employer fails to take meaningful actions to protect you from harassment, you should meet with an employment lawyer. You can file a harassment complaint with the federal Equal Employment Opportunity Commission or your state agency for violations of fair employment practices.
Sexual discrimination covers all aspects of employment such as: