Avoiding Sex Discrimination in Your Small Business

Small business owners need their companies to operate with minimal problems. That means co-workers must get along and behave with courtesy to one another. Despite laws against employment discrimination, sex and gender discrimination remain in the workplace.

Employers are responsible for enforcing anti-discrimination laws. Offices and job sites function better when everyone treats one another with respect.

Federal and state laws prohibit sex discrimination, but it can be difficult for a small business owner to know what that means. If all your employees get the same pay, work the same hours, and share the same work environment, can you still have discrimination?

In a word, yes. Discrimination and harassment are about employment practices beyond pay. This article discusses workplace discrimination and how small business owners can prevent it.

What Is Sex Discrimination?

Sex discrimination is unequal treatment based on an unequal perception of sex. It could be as blatant as thinking “a woman's place is in the home," or as subtle as thinking that there are some jobs women do better than men. When employers base working conditions, pay, or job opportunities on gender, it's sex discrimination.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, religion, gender, or national origin. Recent court cases, such as Bostock v. Clayton County, Georgia, have held that Title VII applies to:

• Gender identity
• Transgender individuals
• Sexual orientation
• Gender preference

The Equal Pay Act requires workers to receive equal pay for equal work. Workers doing similar jobs under similar conditions must receive the same wages. An employee's sex or ethnicity cannot be a factor in any employment decision.

Sexual Harassment

Sexual harassment is a form of sexual discrimination. Sexual harassment exists when an employee:

• Receives unwelcome or unwanted sexual advances
• Receives requests for sexual contact
• Is subjected to repeated verbal or physical communications of a sexual nature

Sex discrimination and sexual harassment are not limited to men harassing women. Women can harass men. Same-sex harassment is also possible. Sex discrimination consists of any hostility towards an individual or a group because of their sexual orientation, preference, or gender identity.

Hostile Work Environment

The EEOC definition of harassment and hostile work environment is:

“Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive."

A hostile work environment occurs where harassment goes unchecked.

Employer Responsibilities

Employers are liable under Title VII to recognize and prevent sex discrimination and harassment. The EEOC advises creating clear anti-discrimination employment policies. Your human resources department should provide them to all employees. Your policies should:

• Contain explanations and descriptions of prohibited conduct: Don't just say, “No sexual harassment allowed." Give your workers definitions, such as dirty jokes, unsolicited contact, and personal comments.
• Create an anonymous complaint process: Have a method for employees to report sexual harassment if their manager or direct report is causing the problem.
• Ensure that all reports will be confidential: Your policy should acknowledge that retaliation for discrimination complaints is unlawful and will lead to disciplinary action.
• Have clear disciplinary policies: These should include immediate termination for certain offenses.

State Laws on Harassment

Some states, such as California, have specific laws about harassment training for employees. The following six states have laws requiring sexual harassment training:

• California
• Connecticut
• Delaware
• Illinois
• Maine
• New York

The city ordinances of Chicago and New York City require sexual harassment training as well.

Employers are encouraged to have harassment training. The U.S. Supreme Court has held that regular sexual harassment training can help employers avoid punitive damages in harassment cases.

Getting Legal Advice for Sex Discrimination Policies

Small business owners need good employment policies to avoid discrimination claims. Discuss your policy with an experienced employment law attorney in your area to ensure you follow state and local laws.