Gender discrimination isn’t limited to cisgender women. People who identify as non-binary or agender experience it too. Here is how to identify gender discrimination in the workplace.
First, we must note that “sex” and “gender” are different, but are often used interchangeably under law. “Sex” refers to biological and physical characteristics of male and female bodies, from chromosomes to genitalia.
“Gender” is a social construct. It refers to roles and expectations imposed on people because of their sex, and it means how a person identifies themselves, regardless of what sex they were assigned at birth. Additionally, a person’s sex commonly delegates the way their parents socialize them as they grow up.
Under Title VII of the Civil Rights Act of 1964, discrimination in hiring, pay, working conditions, or opportunities based on sex, gender identity, and sexual orientation is illegal. Simply put, Title VII makes it illegal to treat workers differently or less favorably based on these three factors. Gender bias exists when there is a clear tendency to prefer one gender over another.
It’s not always obvious that you’ve been the victim of discrimination. Employers have become skilled at disguising discrimination behind seniority or job requirements that follow traditional or stereotypical limits on what “men” and “women” can do.
Several signs can help determine if an employer engages in gender discrimination. Here’s how to identify gender discrimination in the workplace.
Employers make mistakes from the get-go that can rise to the level of gender discrimination with job announcements that use discriminatory language. Employers under Title VII can only limit job opportunities based on sex if being one sex is a “bona fide occupational qualification” or BFOQ.
It’s very difficult to prove that being male or female is a BFOQ, except when the job involves intimate care of a person unable to care for themselves. Jobs that require an employee to assist a person in dressing, bathing, or using the bathroom in a home setting may be able to show that the persons receiving assistance will only accept it from someone of the same sex.
Job announcements including words corresponding with a particular gender identity can be evidence of bias. These include words like “confident,” “aggressive,” “decisive,” “outspoken,” or “strong,” which are traditionally male-assigned characteristics. Such language can deter cisgender women from applying for jobs, which is discriminatory. While men will apply for jobs in that they meet only 60% of the identified qualifications, some women will only apply if they meet 100% of the listed requirements.
Interviews are often a source of evidence of gender bias, whether conscious or unconscious. While questions about marital or parental status or plans aren’t illegal per se, they are powerful evidence of an intention to discriminate based on gender.
Even today, women hold more lower-level, lesser-paid positions than men. Workplaces that tend to steer people into stereotypical roles based on gender may be committing unlawful gender discrimination. For example, a woman applies for a managerial position, but gets an administrative assistant offer instead, while a less qualified man gets the supervisory job offer.
Similarly, men have experienced gender discrimination when they seek roles traditionally perceived as “feminine,” such as administrative assistant positions, nursing, teaching, or child care.
Positional discrimination or bias can result in workplaces where men are overrepresented in executive and managerial positions, while women hold most support positions.
Dress codes can indicate gender bias if, for example, women cannot wear pants, or only women are required to wear uniforms or revealing clothing.
Gender discrimination can be a consistent pattern of inferior work assignments to one gender, usually women, while offering men the “plum” accounts. For example, salespeople paid on a commission basis depend on reliable, repeat-purchaser accounts. When women receive a roster of inferior, unproductive accounts, yet are expected to meet the same sales goals as their male counterparts, they are victims of gender discrimination.
Lack of support can create cascade of negative consequences, from inferior performance reviews to lower pay. Studies have shown that men tend to get higher raises even when males and females receive the same scores on performance evaluations.
Job support is often a stepping stone to promotion. Being denied training opportunities, the chance to attend professional conferences and workshops, or being given fewer resources based on gender is a form of discrimination that can damage careers. A record of biased performance evaluations and a “failure to advance” result from gender bias, thus hindering women from gaining promotions—this is the phenomenon known as the “glass ceiling.”
Workplace language and communication can also be evidence of gender discrimination. Using diminutives, like “honey,” “sweetie,” or even “dear” communicates a patronizing attitude and devalues the contribution of the person on the receiving end of these “endearments.”
Studies conducted by George Washington University and Northwestern University School of Law show that men interrupt conversations 33 percent more frequently when speaking with women than when talking to other men. This behavior diminishes women’s voices, and may even result in a common workplace aggression: taking credit for another’s work. Women everywhere have had the experience of saying something in a meeting, and getting no response, but when a male worker repeats the same idea, he receives recognition and praise.
Interrupting women is so pervasive that it infects the court system. According to the Northwestern University study, women judges were interrupted 32 percent of the time during oral arguments, while committing the interruptions only four percent of the time. Even on the United States Supreme Court, female justices endured 65.9 percent of all interruptions.
These interruptions became painfully apparent during the COVID-19 pandemic when oral argument was held by phone. It got so bad that Chief Justice John Roberts had to take action to allow female justices adequate time to ask questions and be heard by instituting a process of taking turns according to seniority on the court. Since there are currently only three women justices and a new female justice recently confirmed, the women on the court will still have less seniority than the men for many years.
Even if all genders are treated equally in hiring, pay, and promotions, gender discrimination in the form of sexual harassment could still occur. Sexual harassment can take the form of sexual innuendo, suggestive jokes, unwanted touching, catcalls, sexual assault or attempted sexual assault, ogling, rating employees according to “attractiveness,” questioning an employee about their sex life or sexual practices, spreading sexually charged rumors, pressuring employees for dates, or displaying pornographic images. The length of this list is a sad commentary on the existence of hostile work environments across the country.
Now that you know how to identify gender discrimination in the workplace, some of these signs may ring some bells, and remind you of an experience with your employer. Contact an experienced gender discrimination lawyer who specializes in employment discrimination. Your attorney can assess your case, and take steps to help rid you of discriminatory treatment in your workplace.
If it is happening to you, there’s a good chance it’s happening to others. Stepping up to hold your employer accountable can not only help you, but also help your coworkers.
