HR Advice and Guidance on Sex Discrimination in the Workplace

Reaching out for HR advice and guidance is the best decision you can make when it comes to the potential of sex discrimination in the workplace. These are topics that are sometimes difficult to discuss, but that doesn’t mean you shouldn’t. Human Resource departments or PEO’s are in place to help educate and support employees about these types of topics and their industry-expertise should be leveraged when the situation requires. Having the proper policies and procedures in place – and communicating them properly –is key to protecting your employees – and yourself from a major problem.

Sexual Harassment Defined

Sexual harassment is a form of gender discrimination. Both state and federal laws prohibit discrimination and harassment based on a job applicant or employee’s sex (gender or pregnancy).

There are two recognized types of sexual harassment under state and federal law: quid pro quo and hostile work environment. The definitions of both forms of sexual harassment are as follows:

1. Quid pro quo: Enduring the offensive conduct becomes a condition of continued employment. Example: If you don’t sleep with me, you’ll be fired.
2. Hostile work environment: The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Sexual harassment isn’t the only form of sex discrimination in the workplace. Sex discrimination involves treating an employee, co-worker, or even a client, unfavorably because of that person's gender.

Did You Know?

Both the victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. If you ever have questions about the potential for sex discrimination in the workplace you should reach out to your HR team for advice and guidance. 

Pregnancy

Discrimination against women because of pregnancy, childbirth, or a related medical condition is unlawful. Employers should treat those affected by in the same manner as other applicants or employees who are similar in their ability or inability to work as it relates to:

• Pay
• Job assignments
• Promotions
• Layoffs
• Training
• Benefits
• Firing

An employer can’t refuse to hire a woman because she’s pregnant as long as she is able to perform the essential functions of her job. If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing light duty, modified tasks, alternative assignments, or additional leave.

Sexual Orientation/Gender Identity

The law forbids any employment discrimination based on gender identity or sexual orientation (lesbian, gay, bisexual, transgender), regardless of any contrary state or local laws. The following are examples of LGBT-related sex discrimination claims:

• Failing to hire an applicant because she is a transgender woman
• Firing an employee because he is planning or has made a gender transition
• Denying an employee equal access to a common restroom corresponding to the employee's gender identity

How to Prevent Sexual Harassment in the Workplace

An employment policy or practice that applies to everyone, regardless of sex, can be unlawful if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business. Be sure you have clear policies and procedures surrounding harassment and discrimination in the workplace, including reporting procedures, and that your employees understand them. If someone reports harassment or discrimination, investigate it thoroughly.

Keep in mind federal and many state laws prohibit employers from retaliating against workers who oppose discriminatory employment practices - for example, by reporting incidents of sexual harassment to their supervisor.