When a U.S. Equal Employment Opportunity Commission (EEOC) sends you a notice of a charge, it usually means that a lawsuit is heading your way. In 2018 alone, the EEOC resolved over 90,000 charges of discrimination and secured over $505 million in settlements for victims working in both private sector and government workplaces. Discrimination, according to the EEOC, is defined as any negative treatment of an employee or job applicant based on their race, color, religion, sex (including pregnancy, gender identity, and sexual orientation) national origin, age (40 or older), disability or genetic information.
While most of the above types of workplace discrimination are self-explanatory, in recent years discrimination based on “sex” has needed more clarification. The most basic definition of sex discrimination is “treating someone (an applicant or employee) unfavorably because of that person’s sex.” When Title VII was enacted in 1964, “sex” was mainly defined as male or female. However, the EEOC has since expanded the category of sex discrimination to include protection for discrimination based on gender identity – the gender that a person identifies as (male, female, transgender or non-binary) – as well as sexual orientation, which describes the gender or genders to which a person is attracted.
Sexual harassment and gender discrimination are two types of EEOC claims that have become more widely publicized. Although they can overlap in some cases, they are two distinct problems.
The “Me Too” era has thrust workplace sexual harassment into the spotlight. According to the EEOC’s sexual harassment data for fiscal year (FY) 2018, there was a more than 50 percent increase in sexual harassment lawsuits filed by the agency and an over 12 percent increase in the number of charges the agency received as compared to the previous year.
Workplace sexual harassment claims typically fall into one of two categories: quid pro quo or hostile work environment. Both types involve behavior that is sexual in nature, hence the term sexual harassment, with the main difference being a disparity in power.
- Quid pro quo is a type of harassment that occurs when some type of employment benefit is offered in exchange for some type of sexual favor. This most commonly occurs between a higher-up and a subordinate, because a person in a higher position is usually able to arrange the employment benefits, which may include anything from favorable reviews or recommendations, to raises, promotions or highly sought-after shifts.
- Hostile work environment harassment occurs when one or more employees are affected by frequent or pervasive unwanted sexual comments, advances, requests, or other similar conduct. This can be perpetuated by any other employee, regardless of their position, or even a customer, supplier or vendor and can include any type of action that is sexual in nature, including: the showing of inappropriate or offensive materials; the telling of jokes or stories; persistently asking for dates or contact information or even inappropriate behavior between two or more colleagues in front of others.
Gender discrimination occurs when an employee or job applicant is discriminated against in any employment action, specifically because of their gender identity, gender expression or sexual orientation. The alleged action does not need to be sexual in nature to constitute gender discrimination. Some examples of claims that the EEOC views as gender discrimination include:
- Failing to hire an applicant because they are transgender.
- Firing an employee because they are undergoing a gender transition.
- Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
- Failing to use the name and gender pronoun that corresponds to the gender identity with which an employee identifies, and which the employee has communicated to management and employees.
- Denying an employee a promotion because they are attracted to the same sex.
There are situations in which sexual harassment and gender discrimination occur together, and in those situations, the affected employees may file both types of claims against the employer. Sex and gender are words that are often used interchangeably, but employers in particular need to be educated on the differences between the two in order to help avoid claims of sexual harassment and/or gender discrimination against their organization.
Sexual harassment training is now mandatory for employers in California with five or more employees, and must include practical examples of harassment based on gender identity, gender expression and sexual orientation. While official training programs have not been released yet, employers can create their own programs, hire an authorized trainer to conduct training classes in the workplace or rely on an online training program from an authorized vendor, such as Emplicity’s online education platform.
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