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According to Title VII of the Civil Rights Act of 1964, it is illegal to discriminate against job candidates on the basis of their sexual orientation or gender identity. Doing so is considered sexual discrimination.
Keep in mind that Title VII pertains to employers with at least 15 employees on payroll. If you are held responsible for compliance with Title VII, keep reading to better understand sexual discrimination in the workplace. By the end, you'll know how to actively ensure sexual discrimination does not take place in your place of business.
What is sexual orientation?
Sexual orientation refers to someone's preference in terms of physical, romantic and emotional attraction. It takes into account whether people are attracted to those of the same gender or the opposite gender. You have likely heard people use terms like straight, heterosexual, cisgender, gay, lesbian or bisexual to describe themselves and their sexual orientation.
On the other hand, gender identity refers to how someone feels about their gender and which one, or ones, apply to them. For many people, their gender identity does not correspond to the sex they were assigned at birth. Similarly, one's gender identity may not be tangibly obvious to people based on what the person looks like, how they dress or the way they act.
Why is discrimination unlawful?
It's unlawful to discriminate against people simply because they do not conform to sex-based stereotypes or expectations about how they should act based on how they present. Passing judgment regardless of whether you know someone's sexual orientation or gender identity is not only immoral but also illegal in the context of interviewing job candidates and hiring employees.
It's unacceptable to subject employees to workplace harassment as well. This may include hostile work environments rooted in misconduct as a result of someone's sexual orientation or gender identity.
Examples of sexual harassment in the workplace
Sexual harassment is defined as offensive or derogatory remarks that are made regarding someone's sexual orientation or gender identity. While it is possible to accidentally misgender someone or call them by a name they no longer go by, intentionally and repeatedly using the incorrect pronouns or referring to someone with the wrong name can fall into the category of sexual harassment, especially when it contributes to an uncomfortable and hostile work environment.
Federal law recognizes that minor teasing, casual remarks or isolated incidents may not be harassment. However, true harassment occurs when someone creates a hostile work environment that results in very negative outcomes for those being harassed. From getting fired to being demoted or losing workplace privileges, harassment that results in a lower quality of life is serious.
Harassment can come from supervisors, co-workers, clients or customers. In terms of sexual harassment and discrimination stemming from it, the law does not allow employers to restrict employees from holding certain roles or completing assignments simply because clients or customers of the business are opposed to the employee's sexual orientation or gender identity.
The U.S. Equal Employment Opportunity Commission also emphasizes the fact that employers cannot deny employees equal access to facilities that align with their gender identity. Employers must not request specific information or identification related to gender identity from either employees or job applicants, as this could be discriminatory.
Similarly, equal benefits must be provided to lawfully married same-sex spouses. What you, as an employer, offer to same-sex partners in civil unions or domestic partnerships must be identical to what you offer opposite-sex couples. In other words, there must be zero discrimination toward same-sex couples in comparison to opposite-sex spouses or heterosexual partners.
The Office for Civil Rights at the U.S. Department of Health and Human Services is responsible for the enforcement of civil rights. They uphold these rights in the context of health programs and various activities that receive federal assistance from HHS. The same is true for companies that fall under Title I of the Affordable Care Act. This ensures that individuals who are seeking access to health programs are protected from discriminatory practices.
It is illegal for an employer to retaliate against, harass or punish employees for taking action against employment discrimination. From filing an EEOC charge to submitting a complaint and participating in investigations related to Title VII enforcement, retaliation is unacceptable. This includes any and all actions that deter employees from speaking out against discriminatory practices at work.
It's important to always make sure your policies and practices are in compliance with the EEOC. If you are unsure about certain compliance matters or you have questions about what is required of you as an employer, consider consulting with the EEOC. You can also speak with an employment lawyer for a more personalized response to your concerns.
Reach out to FIC Human Resource Partners' Nuance Culture Consulting and Nuance Culture Academy to ensure that your organization's policies are fostering a healthy culture of inclusion and belonging.