No one can deny that society as a whole has come a long way in terms of how we view sexism in the workplace. By and large, things have changed for the better, and certain patterns of toxic behavior that were once considered normal are no longer acceptable. So why is it that in spite of all this progress we’ve made over the years, sex-based discrimination continues to crop up as a constant issue in the average American work environment?
Clearly we still have a long way to go. While this type of unfair treatment can sometimes be direct and even aggressive, other times it’s not so obvious. When bad habits and social indiscretions are allowed to go unchecked for decades, they become so ingrained in the fabric of our culture that even the most astute observer may blindly deem them as “normal” when in fact they are a violation of your rights.
In a general sense, sex-based discrimination involves treating someone (such as an employee or a job applicant) differently or unfavorably based purely on that person’s sex or gender. This can include anything from hiring, firing, promoting, determining salary, assigning job responsibilities, establishing benefits, or any other term or condition relating to a job.
Although the terms sex and gender are oftentimes used interchangeably, they don’t quite have the same meaning. A person’s “sex” refers to whether they are biologically male or female, while a person’s “gender” refers to which sex they most closely identify with. Therefore, discrimination due to either biological sex, gender expression, gender identity, and/or sexual orientation is illegal.
There are two main laws to consider when it comes to sex discrimination in the workplace. On a federal level, the Civil Rights Act of 1964 offers protection against discrimination based on sex, race, color, religion, and national origin. This law applies to employers with 15 or more employees, and as of recently has expanded its definition of sex to include sexual minorities and members of the LGBTQ community.
Under California law, the Fair Employment and Housing Act (FEHA) has a broader scope than the Civil Rights Act in that it applies to more employers, including those with 5 employees or more. It also has a longer history of explicitly protecting workers who have been discriminated against because of their gender identity, gender expression, or sexual orientation.
Moreover, under FEHA, discrimination based on “sex” is not just defined as employers treating men and women differently but also includes unequal treatment based on pregnancy, childbirth, breastfeeding, and any related medical conditions.
Sex or gender discrimination comes in many forms and can arise in a variety of scenarios. Sometimes it’s blatantly obvious; other times it may be subtle, underhanded, and hardly even noticeable, yet over time can weigh down on a person’s dignity and affect their job performance.
Sex-based discrimination is split into two categories. One relates to sex or gender discrimination as it relates to the terms and conditions of your employment – meaning an employer makes employment decisions based on a person’s sex or gender. The other deals with harassment – including sexual harassment in the workplace and a hostile work environment. Here are some of the most common manifestations of each:
1. Employment Decisions Based on Sex or Gender
Unequal Pay - The wage gap is still a problem today. Oftentimes, an employer will pay men and women different salaries, even though they may have the same qualifications, duties, status, job title, or experience. For example:
Unfair Hiring Practices and Interview Questions - Employers may hire or refuse to hire someone based purely on their sex or gender. Oftentimes these biases are formed before applicants even apply for an open position. For example:
Promotional Bias - Employees are not always given the same advancement opportunities because of their sex or gender. For example:
Positional Stereotypes - Gender stereotypes often support the erroneous idea that males and females are only fit for certain job responsibilities or duties. For example:
Sexual Harassment - This occurs when an employee is subject to unwelcome sexual advances, requests for sexual favors, or other verbal or physical harassment of a sexual nature. Examples of this include but aren’t limited to:
It may manifest itself in quid pro quo form (“this for that”), which usually involves a person in power (such as a boss or a supervisor) explicitly or implicitly offering an employment opportunity, or threatening to take it away, in return for that employee's satisfaction of a sexual demand. For example:
Hostile Work Environment - Harassment doesn’t necessarily have to be sexual in nature (although there is often some crossover); it can include offensive remarks about a person’s sex, sexual orientation, gender identity, or gender expression. This type of behavior is illegal when it is so frequent or severe that it creates a hostile work environment. Examples of this include:
While federal and state laws are intended to protect all workers from sex or gender based discrimination, there are, however, limited exceptions. An employer may be able to treat a group of employees differently if it is justified by their particular practice.
This is known as the “bona fide occupational qualification” (BFOQ) defense – which states that “all or substantially all of the excluded individuals are unable to safely and effectively perform the job in question and because the essence of the business operation would otherwise be undermined.” Justified examples of this include but are not limited to:
It should be noted that these exceptions are interpreted very narrowly in the legal system in order to prevent employers from using the BFOQ defense as an excuse for discrimination.
Sex-based discrimination is many things – offensive, outdated, debilitating, infuriating, pathetic, unnecessary, noxious, and unethical – but most importantly, it’s illegal. If you think you have been the victim of this discriminatory conduct, you can hold an employer or prospective employer responsible.
There can be a lot of gray area when it comes to identifying sex and gender discrimination in the workplace, because it’s not always obvious and oftentimes manifests itself in transparent, nuanced, and gradual ways, so hiring an experienced sex discrimination attorney can help you navigate the process and determine whether you have a case.