Sex Discrimination in the Workplace: Everything You Need to Know
Sex or gender discrimination is taking any employment action that treats someone unfairly or impacts them negatively because of their sex.8 min read
What is Sex Discrimination?
Sex or gender discrimination is taking any employment action that treats someone unfairly or impacts them negatively because of their sex. This can include hiring and firing decisions, the assignment of responsibilities or tasks, or the work schedule as far as who works when and where. This type of discrimination can also involve your compensation or the opportunity for promotion and professional development.
Women can carry out workplace tasks just as skillfully as men, given their demonstrated successes in almost every field. Women now hold leadership positions in corporations of all sizes, academic institutions, and political office. Still, many women find themselves confined by the issues of sex discrimination.
Though it's mainly an issue for women, there are cases of sex discrimination against men. For example, the Equal Employment Opportunity Commission (EEOC) filed suit recently against the Ventura Corporation, a company dealing in beauty products, for their refusal to hire men as sales representatives.
Gender and sex are often used interchangeably in conversation, but there's a distinct difference. Sex, as defined by those in the social sciences, refers to the anatomy, either male or female. Gender is the characteristics generally associated with men or women. As far as the law is concerned though, discrimination based on either or both is illegal.
Workplace harassment is one form of sex discrimination. Employers must give women and men equal pay and opportunities, but they must be vigilant for sexual harassment situations and deal with them appropriately and immediately.
It doesn't matter if the sex or gender discrimination involves a subordinate and a supervisor or two people at the same level in the company, it's still sexual harassment among co-workers. Harassment includes unwanted sexual advances, requests for sexual favors, and other verbal or physical sexual conduct.
It is illegal for an employer to make sexual conduct a condition or term of employment, to base employment decisions on such conduct, or to let sexual conduct take place that unreasonably interferes with an employee's work performance or creates an intimidating, hostile or offensive work environment.
Unwanted touching, displays of sexual objects or photographs, or offensive cartoons or drawings may constitute sexual harassment when they interfere with an individual's work performance.
Discriminating because of sex means acting differently to an employee or job applicant because of sex stereotypes or because that individual does not conform to traditional roles as it relates to masculinity and feminity.
Examples of sex discrimination at work
In these scenarios, let's assume you are a female:
- You see an advertisement for a job. You read the specifications and find that you are qualified and have the experience the company is looking for. However, the company has some clients who prefer to work with men, so they hire a male applicant.
- Your company does some layoffs and restructuring, eliminating the positions occupied by women but keeping men in the same positions who have less experience with the company.
- You've been passed over for promotions again and again, despite many years with the company, excellent performance evaluations, and multiple recognitions. Those positions were always filled by men with lesser qualifications.
- You start out in an entry-level job and work your way up. A male with similar qualifications gets the job, but his compensation is higher than yours.
- Despite an outstanding performance record, you're reassigned to a less desirable position within the company while a male is given your former position, which gives him greater earning potential in the future.
- You have a job where you work a lot of overtime. You go on and return from a maternity leave and tell your supervisor that you can't put in that much over time anymore due to the new demands of a new baby. You're given a different job at a lower pay rate. But your male co-workers cut their hours worked with no change in compensation or position.
- Your health insurance doesn't cover your spouse because the company assumes he has his own. However, your male colleagues can cover their wives.
- You want to be a driver. The department says they are taking applications, but the job description says that all candidates need to be able to lift 200 pounds. You don't believe the requirement is necessary to fulfill the job duties as a driver and is just being used to deter women from applying for the position.
- Your Supervisor has repeatedly made inappropriate comments about your appearance and frequently puts his hands on your shoulder or waste when talking to you about work. You have told him that his behavior makes you feel uncomfortable and have asked him to stop. He responds by saying that maybe he should not have hired you and that you're too serious. You now fear that you may lose your job if you bring it up again.
- You are offered a job at a company, and before starting your job, you inform the company that you are undergoing a gender transition and will be showing up as a woman instead of a man. The company responds by saying that the job is no longer available due to some other reason. You eventually find out that someone else was awarded the position.
- You're a female working in the sales department for a major store. You wear your hair short and dress in slacks. You're hitting your sales targets and meet all other requirements, yet you continue to receive poor evaluations based on your lack of femininity or aggressive tactics. Men with similar traits and relative sales and work performance to yours are being promoted or receive above average evaluations.
Sex or gender discrimination often happens along with other types of illegal discrimination like age, race, or disability. Pregnancy discrimination and sexual harassment are covered by this same umbrella under the legal definitions.
How are men discriminated against?
Taller men make more money than shorter men. Younger men are more likely to be promoted or hired, but there are situations where men are discriminated against simply because they are men in the same way women are discriminated against for no other reason than that they are female.
Does the federal law cover sex or gender discrimination?
Sex or gender discrimination is covered by Title VII of the Civil Rights Act of 1964. This is at the federal level, but many states have their own laws on the books outlawing this same type of discrimination.
If you are an employee of a federal contractor, you're covered by this protection as well. Executive Order 11246 states that these organizations are included if they do more than $10,000 of business with the government each year. The Department of Labor is issuing new regulations to update the requirements of this rule to make them more consistent with case law. More clarity is given to areas like equal pay, hostile work environments, pregnancy and childbirth and related medical issues, and stereotyping based on gender identity and transgender status.
Executive Order 13665 also protects employees of federal contractors from discrimination based on questions or disclosures related to compensation.
Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 further strengthen the government's position that it is illegal for those entering into business with the federal government to discriminate in employment because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a veteran.
State Law in California
Sex or gender discrimination in the workplace is prohibited under California's Fair Employment and Housing Act (FEHA). FEHA applies to all employment agencies, state licensing boards, private employers, labor organizations, and state or local government agencies with at least five employees. FEHA's does have much broader protection against sexual harassment for companies with multiple employees.
Laws for the Other States
Many states have laws making it illegal for employers to discriminate because of your sex or gender. Because each state is different, it would be a good idea for you to contact a lawyer who practices employment law in your state to see what specific rights you have as an employee under your state's laws.
Who does the law protect?
All state and local governments, private employers, and educational institutions are protected if there are at least 15 employees. It also covers public and private-sector employment agencies, joint labor management committees, and labor organizations.
It's important to note that both applicantsand employees are covered.
Check with your state's labor division to find out what laws are specific to your state because many have protections above and beyond the federal requirements.
Can women be paid less than men?
Title VII and the Equal Pay Act (EPA) 29 U.S.C. 206(d) state that it is illegal to discriminate based on sex in compensation, including pay and benefits. It applies to regular salary and overtime but also bonuses, stock options, paid time off, allowances for travel, and reimbursement for expenses. There are some differences though.
Simply put, under the EPA, equal work means equal pay within the same employer. The jobs don't have to be identical either, only substantially equal, irrespective of titles. The essential functions of the position determine whether the two things are equal.
The EPA says that two jobs performed with equal "skill, effort, and responsibility" under similar conditions in the same employer must be paid equally.
- Skill is measured by education, ability, experience, and training required. It looks at what is required for the job; not what the incumbents have.
- Effort is how much physical or mental work the job requires.
- Responsibility is how much accountability lies with that position.
- Working conditions include two things. One is physical elements like temperature and exposure to fumes or ventilation and the second is hazards.
The EPA also specifies that employers can't just lower wages of either sex to make the pay equal. Violations can happen when staff changes as well. If a woman is in the job and gets paid a set rate, and then she leaves and is replaced by a man at a higher rate, discrimination may exist.
Title VII is a little different in that the two positions don't have to be equal, and they don't even have to be at the same employer. Title VII looks for proof of the intent to discriminate, which the EPA doesn't require.
Both Title VII and the EPA are enforced at the federal level by the EEOC (EEOC).
Can employers provide different benefits because of sex or gender?
While the cost to provide benefits to men and women may differ, everyone must be offered the same package. Arbitrary factors like whether the employee is the only or highest income in his/her household cannot be considered since they are not job-related.
- An employer can't offer benefits to a man to cover his wife and children unless women have the same option for their husbands and children.
- Coverage available to the wives of male employees must also be available to the husbands of female employees.
- Pension or retirement plans cannot, under the law, include different retirement ages or differing benefits based on sex.
Pregnancy discrimination is the discrimination of a woman based on pregnancy, childbirth, and related conditions. This discrimination is illegal under Title VII. Congress passed the Pregnancy Discrimination Act (PDA), 2000e(k) of the Title VII of the Civil Rights Act of 1964, amending Title VII to clarify that pregnancy-based discrimination is a form of sex discrimination.
Pregnancy is considered a temporary disability. So too are the medical conditions related to pregnancy such as doctor-ordered bed rest, severe morning sickness, childbirth and labor, recovery, and other peripheral conditions caused by pregnancy.
Title VII prohibits employers from treating pregnant women differently from other temporarily sick, injured, or disabled employees. They must all get the same treatment and benefits.
The federal law does not prohibit marital status discrimination from private employers, which prohibits other discrimination such as color or race, sex, religious beliefs, nation of origin, age, and disability. However, many states do have laws that make it illegal to discriminate because of marital status.
Employers should be cautious because sex/gender discrimination and marital status discrimination can often coexist. For example, if you're a married woman that is rejected a job opportunity because it will require frequent traveling and it's assumed that your husband might become jealous, and the position is given to a married man instead, the problem may not be marital status discrimination, but sex or gender discrimination instead.
If you'd like advice on an issue related to sex or gender discrimination, you can post your legal job on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. They come from law schools such as Harvard and Yale and average 14 years of legal experience, including work with companies like Google, Stripe, and Twilio.