The words “sex” and “gender” are often used interchangeably, but there are important distinctions, especially when it comes to employers staying out of legal trouble for sexual harassment or gender discrimination.
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Although there are overlapping issues involved with sexual harassment and gender discrimination, they’re separate problems. Let’s look at the basics of each one to see the key differences, which can help HR managers know what they’re dealing with in a given workplace situation.
Sexual Harassment
Sexual harassment in the workplace generally falls into two categories: quid pro quo or hostile work environment.
In a quid pro quo situation, some type of employment benefit is on offer in exchange for some form of sexual favor. (Or some type of negative outcome is being avoided.) This type of sexual harassment occurs between individuals with varying levels of power—one has the ability to offer something in the work environment in exchange for meeting his or her demands.
In a hostile work environment situation, one or more employees are made to feel harassed or offended by things occurring in the workplace. The issues could stem from any other employee or even a customer or supplier, regardless of whether the person(s) causing it is in a position of power.
For more on sexual harassment, see https://hrdailyadvisor.blr.com/2014/09/03/sexual-harassment-in-the-workplace-quid-pro-quo-versus-hostile-work-environment/ and https://hrdailyadvisor.blr.com/2015/08/28/tips-to-prevent-sexual-harassment-in-the-workplace/.
Gender Discrimination
Gender discrimination occurs when someone is discriminated against specifically because of his or her gender or something related to his or her gender. This could include the individual’s gender presentation or sexual orientation, which is part of why the terms “gender discrimination” and “sexual harassment” get confused.
Gender discrimination is covered under Title VII of the Civil Rights Act. Discrimination under Title VII occurs when an individual is discriminated against in any employment action, including hiring, firing, promotions, raises, benefits, etc. It doesn’t need to be sexual in nature to constitute gender discrimination.
Note: Not all courts agree that sexual orientation discrimination or discrimination based on gender presentation is covered under gender discrimination in the Civil Rights Act. Some courts have made such a determination, noting that sexual orientation can be an expression of a gender norm, and discrimination due to such is then discrimination based on gender expectations. The Equal Employment Opportunity Commission (EEOC) website says that it is covered, but challenges remain, as not all courts agree.
Overlap Between Sexual Harassment and Gender Discrimination
There are times when sexual harassment and gender discrimination may occur together or have a lot of overlap. A common example is when only one gender gets promoted on a regular basis, except in cases when someone has a sexual relationship in order to gain that same promotion level. That situation would encompass both gender discrimination and quid pro quo sexual harassment.
Another example might be a situation in which gender discrimination ends up creating a hostile work environment—thus becoming sexual harassment at the same time.
However, generally speaking, sexual harassment happens when some form of inappropriate behavior is occurring and the result is that someone is facing either a hostile work environment or a situation in which he or she is being asked to perform some type of quid pro quo arrangement. Gender discrimination occurs when some form of employment action is taken (or withheld) based on someone’s gender.
Sexual harassment training is a “must-do” for all employers. Progressive organizations are examining whether their own culture could be perpetuating a sexist or bullying culture that could foster harassment in varied forms. Learn how you can prevent sexual harassment in your company by attending the HR Comply hot topic power talk, “Sexual Harassment Prevention: Are Today’s Training Methods Making a Difference?,” on November 14-15, 2019 in Nashville, Tennessee. Click here to learn more, or to register today.