Taking the wrong approach to sexual discrimination at work could cost your company a hefty amount of money. Simply turn on the news and you’ll be faced with stories of organisations paying out tens (or hundreds) of thousands to victims.
First and foremost, preventing sexual discrimination in the workplace is morally imperative. It’s also crucial from a legal perspective. Organisations should take a proactive approach to stop sex discrimination and promote gender equality. However, to do that HR teams and company leaders need to understand exactly what it is and how it can present itself within a workplace.
In this article, we’ll cover:
- What is sex discrimination in the workplace?
- Types of sexual discrimination
- Who is protected by sex discrimination laws?
- When is sex discrimination at work lawful?
- What should I do if someone raises an allegation of sex discrimination?
- Barriers to gender equality in the workplace
- Tackling sexual discrimination at work
- Benefits of gender equality in the workplace
Sexual discrimination (also known as gender discrimination) is where an employee is treated less favourably because of their sex. Sex discrimination is illegal in the UK and is covered by the Equality Act 2010. This is separate to sexual orientation and gender reassignment discrimination, which are protected separately under the 2010 Act. Pregnancy and maternity-related discrimination are also categorised separately.
It’s important to note that men can also be the victims of sex discrimination in the workplace. This can often be unfairly overlooked.
There are four main types of sex discrimination, which are:
1. Direct discrimination
This is the most obvious type of discrimination. When someone is treated unfairly as a direct result of their sex.
An example of this could be when two people apply for a promotion, one male and one female. If the female doesn’t get the promotion because there’s a chance she might have children in the near future, this is direct sex discrimination.
2. Indirect discrimination
Indirect sexual discrimination is harder to spot. It’s when rules are applied to a group of people, but those rules put someone at a disadvantage because of their sex/gender.
An example of indirect sex discrimination could be in relation to job adverts. If an advert specifies that an organisation needs an individual who is available to work full-time hours flexibly, this would likely put mothers at an unfair disadvantage. Mothers are more likely to be the primary caregiver and, as a result, may be responsible for school drop-offs/pickups and after-school care. As a result, women may be at a disadvantage in this example because they would be unable to work as flexibly as their male counterparts.
The CIPD’s definition of harassment is: “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. A TUC survey highlighted that just under two in three women have experienced harassment in the workplace.
Harassment in respect of sex discrimination can be broken down into two separate forms:
- Sexual harassment
This is an unwanted advance of a sexual nature. For example, making sexual remarks to a colleague.
- Sex-based harassment
There is a slight difference here. This harassment may not be sexual in nature but is unwanted behaviour linked to the person’s sex/gender. For example, making jokes about someone’s bad driving likening it to driving ‘like a woman’.
Victimisation is when someone is treated unfairly because either they have made a complaint about sex discrimination in the workplace, or they are supporting someone who has. This type of discrimination can impact individuals who have left the organisation as well as those still in it. For example, if an organisation refuses to provide a reference for someone who has made an allegation of sex discrimination (again, or who has supported someone who has) this would be an example of victimisation.
Essentially, everyone who works for you is protected. This includes:
- Your employees
- Agency workers
- Contractors and freelancers
- Apprentices/anyone undertaking work experience
Organisations should be mindful that it isn’t just the people ‘on the books’ who are protected. Employers are responsible for the welfare of all of these individuals within the workplace.
There may be situations in the workplace when treating someone differently because of their sex is acceptable. Generally speaking, these can be categorised into two different areas:
1. Occupational requirement
If it is essential for the successful completion of certain activities/tasks that the worker is a specific sex, then it is permitted by law and would not be classed as sex discrimination.
One example of this would be if a carer role was advertised specifically to support the personal care of a female client. It would be acceptable in this situation to specify that the applicants should only apply if they are female.
2. Promoting diversity
This can also be known as ‘positive discrimination/action’. If an organisation proactively looks to recruit to an underrepresented group, this could also be lawful. For example, if an employer identified that there were no women in their sales team, it would be acceptable for an employer to choose to advertise on a job board that typically targets women.
It’s important that organisations receive the right advice and guidance in these situations as they can be extremely delicate and tricky to navigate. Instructing an employment law solicitor or an HR professional to guide you through the process is money well spent. Every allegation of sex discrimination must be taken extremely seriously. Receiving expert help and guidance would ensure you don’t fall down any legal potholes. Here are the steps you should follow:
- Signpost the individual to your grievance procedure.
- Within this procedure it should advise them to put the allegation into writing to progress their complaint.
- From there, you should meet with the individual to fully understand the allegation. The allegation must then be investigated fully.
- Write a grievance report, recommending the best course of action and next steps.
- Hold a grievance hearing to meet with the individual, confirm whether the allegation is being upheld or not upheld, and outline what the organisation intends to do to address the situation.
In terms of the outcome, this entirely depends on the situation and the investigation findings. However, one potential outcome could be summary dismissal for the individual the allegation was made against. This is immediate termination of employment on the grounds of gross misconduct.
The organisation may even deem it necessary to report the incident to the police, depending on the details of the case. This goes to show how serious sexual discrimination at work can be.
Some individuals may have preconceived ideas of how someone of a certain gender might behave or what they might be capable of. Having these, often misinformed, preconceptions can often be damaging for the recipient. Underestimating what an individual might be capable of can damage their self-esteem and negatively impact their wellbeing.
Issues with equal pay
It’s widely reported that there are still issues with equal pay, even in the 21st century. Women are often paid at a lower rate than men who do the same role or have similar responsibilities. Organisations of over 250 people are now required to publish their gender pay gap report, which is ensuring organisations that fall short in this area are held accountable.
Lack of representation at a senior leadership level
A recent LinkedIn survey found that women made up around 30% of senior leadership roles. Organisations that appoint an entirely male leadership team may unconsciously send out the message to their team that they don’t value gender equality in the workplace. Another consequence of this could be individuals feeling unsure about coming forward to report incidents of sex discrimination for fear of being labelled a ‘troublemaker’.
Organisations that have historically always appointed male leaders and promoted males internally may have an issue with institutional sexism. There is also something called ‘affinity bias’, which essentially means individuals look for characteristics and experiences similar to their own. In male-dominated organisations, breaking through may be challenging if you’re a female.
Sex discrimination should always have a place on the agenda. But how can organisations tackle it rather than just paying lip service to best practice?
Write a detailed EDI policy
An EDI (Equity, Diversity and Inclusion) policy will emphasise your organisation’s stance on gender equality and will be a platform to shout about your zero-tolerance approach to sex discrimination at work. Putting this into writing shows your team that it’s something you take seriously. Leading by example in this area can have a big impact.
Get your recruitment practices right
This begins at the very start of the employee lifecycle. Ensuring that your job adverts and recruitment processes are inclusive and accessible to all genders will mean you attract a balanced and diverse workforce. Having diversity will support psychological safety in the workplace, which gives individuals the confidence to speak up if they think something is wrong.
Communicate and educate your team
Sex discrimination isn’t a topic you simply offer an e-learning module for, tick it off your list and move on. It’s something that should be regularly communicated to your team to remind them of their responsibilities in this area. Organisations should regularly train their employees about what is acceptable behaviour and what isn’t in respect of gender.
Cultivate a safe working environment
Prevention is the best cure. To avoid sexual discrimination at work becoming an issue, foster a welcoming company culture from the offset. Build a positive culture and empower individuals to stand up against sex discrimination.
Having a workplace free of sex discrimination can benefit an organisation in many different ways. A no tolerance approach will create a working environment that’s safe for the entire team. By fostering inclusivity and equality in this way, you will safeguard employees’ mental health and job satisfaction should increase.
Having gender equality means everyone will have access to the same opportunities. Growing and nurturing talent within your organisation will reduce employee turnover and improve retention rates. This in turn has a positive effect on an organisation’s external reputation and its ability to attract top talent will grow exponentially.
Maintaining gender equality in the workplace means that your organisation will benefit from different perspectives. It’s acknowledged that having input from individuals from different backgrounds will positively impact productivity and ultimately profit. In a study by Mckinsey, it was found that organisations with more diversity in their senior leadership team tend to have higher profits. This emphasises the importance of gender equality to overall business success.