HR Mavericks

Eddy’s HR Mavericks Encyclopedia

Sex Discrimination
Sex discrimination in the workplace can have a significant impact on an organization. HR professionals need to be proactive to ensure compliance and improve company culture as it relates to sex discrimination. This article will define sex discrimination, laws related to sex discrimination and best practices for employers.

What Is Sex Discrimination?

Sex discrimination occurs when an individual is treated unfavorably because of that person’s sex. Sex discrimination includes a person's sexual orientation, gender identity, and pregnancy, and applies to both applicants and employees. The term “sex” refers to the biological characteristics of being male or female. The term “gender” refers to the cultural roles associated with masculinity and femininity. Although there is a difference in meaning, you may find the terms “sex” and “gender” used interchangeably by the law.

Forms of Sex Discrimination

Sex discrimination can come in many forms, including sexual harassment, direct discrimination, indirect discrimination and retaliation.

Indirect Discrimination

Indirect discrimination takes place when an organization has a policy, requirement or practice which places someone at a disadvantage because of their sex.

Examples of Indirect Discrimination:

  • Since women take on more of the responsibilities of caring for young children or dependent adults, an employer requiring all employees to work full-time may be indirectly discriminating against women.
  • Imposing an unnecessary height requirement (e.g. 6 foot) in a job posting, giving men an unfair advantage over women.

Direct Discrimination

Direct discrimination is when someone is treated differently because of their sex than someone of the opposite sex in the same situation.

Examples of Direct Discrimination:

  • A man is given a promotion over a more qualified woman due to gender bias.
  • An employee informs their manager of their intent to have gender reassignment surgery. The manager transfers the employee to a non-customer facing position against their wishes.

Sexual Harassment

The EEOC defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” Additionally, harassment based on gender identity, pregnancy and sexual orientation is considered sexual harassment.

Examples of Sexual Harassment:

  • Someone in the workplace makes sexual comments to another employee or makes them feel uncomfortable in some way.
  • A coworker, boss or third party makes direct gestures, comments or jokes of a derogatory nature based on the individual’s sex.

The Consequences of Sex Discrimination

The outcome of sex discrimination can have a significant impact on victims, employers and perpetrators.

Employer

Sex discrimination in the workplace can impact employee morale, cause decreased productivity, and increased turnover. Sexual harassment cases alone can be very costly to an employer. In 2021, the U.S. Equal Opportunities Commission (EEOC) received 5,581 claims of sexual harassment, which resulted in $61.6 million in direct settlements. This does not include legal fees or monetary settlements obtained in litigation.

Victim

Sex discrimination in the workplace can cause those treated unfairly to feel shame or fear. This can negatively affect performance and lead to a lost sense of belonging, seriously impacting their mental health and reducing job satisfaction.

Perpetrator

Perpetrators of sex discrimination and harassment can be any gender or sexual orientation. These individuals may make comments, intimidate, make lewd gestures or bully others based on their sex. Perpetrators create a hostile work environment and employers need to promptly address complaints. As a result of sexual harassment, perpetrators may receive written warnings, be required to attend training, or face demotion, termination or possible prosecution.

Sex Discrimination Laws

Below are the United State’s federal laws pertaining to sexual discrimination.

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act of 1964 is enforced by the EEOC and prohibits an employer from discriminating based on race, color, religion, sex and national origin. Sex discrimination because of gender identity, including being transgender and sexual orientation, is also in violation of Title VII. Under Title VII, employment discrimination based on stereotypes, gender identity or sexual orientation is prohibited. Title VII applies to private-sector employers, and federal, state and local employers with 15 or more employees. Title VII protects current and former employees (including seasonal, temporary, part-time and full-time) in any business with 15 or more employees. Title VII protections apply even if state or local laws do not align.

Equal Pay Act of 1963

The Equal Pay Act of 1963 (EPA) prohibits wage discrimination on the basis of sex. This act requires employers to pay employees of different sexes equally for doing substantially the same work at the same workplace.

Pregnancy Discrimination Act of 1978

The Pregnancy Discrimination Act of 1978 (PDA) prohibits discrimination in employment based on pregnancy, childbirth and related medical conditions. Additionally, this act makes it illegal to create policies that unfairly impact individuals because they are pregnant or childbearing.

Pregnant Worker’s Fairness Act

The Pregnant Workers Fairness Act (PWFA) requires employers of 15 or more employees to provide reasonable accommodations for employees limited due to childbirth, pregnancy or related medical conditions. Employers are not required to comply if the accommodation creates “undue hardship.”

Family Medical Leave Act (FMLA)

The Family Medical Leave Act (FMLA) entitles an eligible employee to 12-weeks of unpaid FMLA leave “for the birth of a child, for prenatal care and incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can use FMLA leave for the birth of a child and to care for his spouse who is incapacitated (due to pregnancy or childbirth).” This act prohibits employers from unfairly treating employees during parental leave or upon their return.

Equal Credit Opportunity

The Equal Credit Opportunity Act (ECOA) prohibits discrimination by creditors on the basis of race, color, sex, religion, national origin, age, receipt of public assistance or any right exercised in good faith by an applicant under the Consumer Credit Protection Act.

Title IX of the Education Amendments of 1972

Title IX of the Education Amendments of 1972 prohibits sex based discrimination in education programs and activities where federal financial assistance is received.

The Fair Housing Act

The Fair Housing Act prohibits discrimination on the basis of race, color, sex (including gender identity and sexual orientation), religion, disability, national origin, and family status when individuals are buying a home, renting, obtaining a mortgage, seeking housing assistance or participating in other housing-related activities.

How to Prevent Sex Discrimination in the Workplace

Employers should create policies that address sex discrimination, promote an inclusive culture and provide training to all employees to prevent sex discrimination in the workplace.

Step 1: Establish Policies

When creating a sex discrimination/harassment policy, employers should consider both federal, state and local laws as applicable. Additionally, employers should have an anti-retaliation policy.

A sex discrimination/harrassment policy should include:

  • A clear definition of what is considered unlawful sex discrimination/harassment, including set limitations.
  • What is prohibited conduct, such as verbal and physical discriminatory practices, unwelcomed behavior and harassment due to an individual's protected status.
  • Examples of sex discrimination/harassment and and explanations where applicable (e.g. business travel, work events, etc.).
  • A complaint process and consequences for policy violation.

An anti-retaliation policy should include:

  • The protection of employees who report suspected violations, unethical behavior or misconduct.
  • Written protection for job applicants and current and former employees from adverse action including but not limited to refusal to hire, demotion, suspension, change in assignment and termination.
  • Consequences for misconduct and poor performance.
  • Address possible adverse action for an employee who acts in bad faith during the course of an investigation, provides false claims or misleading information.

Step 2: Create an Inclusive Culture

  • Lead by example. Employers can use words, actions and behaviors to drive inclusion. Leaders should provide support to their employees, value differences, act authentically and hold themselves accountable.
  • Build trust. Ensure managers act with integrity, communicate clearly and are intentional with their actions.
  • Awareness. Employers should encourage open communication and provide implicit bias training so employees have a better understanding of their own biases.
  • Create a safe space. Make sure employees, especially marginalized employees, feel safe in the workplace. Everyone needs to feel they can be authentic and safely voice their opinions and thoughts. When employees feel they can bring their whole selves to work, they feel a sense of belonging.
  • Encourage continuous improvement. Ask employees for feedback to establish a baseline of the current state of inclusion in the workplace. Consider completing an assessment to evaluate the psychological safety of the organization. Have multiple outlets for employees to provide feedback or file complaints. Consider creating employee resource groups to help foster an inclusive and diverse workplace.

Step 3: Training

Employers should provide sexual discrimination and prevention training to furnish employees with the knowledge and tools needed to ensure a workplace free of sexual discrimination.

Sexual discrimination and prevention training should:

  • Align with company policies
  • Reference proper workplace conduct
  • Include the impact of discrimination and harassment
  • Address best practices for addressing complaints
  • Include implicit bias training

Best Practices for Addressing Sex Discrimination

Employers should have policies in place to address the potential for sex discrimination in the workplace as well as clearly defined processes for reporting, investigating, and evaluating complaints.

Policies

All companies regardless of size should have a clearly written sex discrimination/harassment policy and anti-retalition policy in place. Policies should be reviewed periodically to ensure compliance. Additionally, it is best practice to include these policies in company handbooks.

Complaints

Employers play a crucial role in addressing sex discrimination/harrassment complaints. Improper management of complaints can lead to penalties and legal settlements and impact employer standing.

Reporting

Employers should ensure employees have multiple outlets where they can report sexual discrimination/harassment complaints. These can include reporting to a supervisor, reporting to human resources, an ethics hotline, the reference process in the employee handbook, and adding complaints to bulletin boards.

Investigation

All reports of sexual discrimination/harassment should be taken seriously and addressed promptly. Ensure employees are aware that the employer takes complaints seriously and does not tolerate sexual discrimination/harassment or retaliation. If further investigation is needed, be sure to protect the confidentiality of all parties.

Outcome

Once all evidence has been evaluated and a decision is made, ensure the results are appropriately communicated. Disciplinary actions do not need to be divulged and witness names should not be disclosed.
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Melissa Redman

Melissa Redman

Melissa is a people-centric leader and strategic HR business partner with demonstrated success in recruiting and hiring, policy and procedure implementation, compensation, talent management, training and development, and compliance. Melissa has a passion for fostering a culture committed to DEIBA, authenticity and continuous learning. Outside of HR, Melissa enjoys volunteering, painting and spending time with her husband and their five cats.
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