Did you know that sexism is against the law all by itself? Individuals can be sexist without sexually harassing someone? Much of the #MeToo has focused on the ravages of sexual harassment #TimesUp has focused a bit differently, focusing on the lack of advancement of women and wage gap issues. This distinction is important. While conduct that could constitute sexual harassment is often included in a sex discrimination cases, sexism by itself is also against the law.
Title VII’s prohibition on discrimination “based upon sex” includes many things (and arguably more things). This “because of sex” provision in the law makes both sexism and sexual harassment unlawful. It is just as unlawful to engage in sexist behavior as it is to sexually harass someone. Both are demeaning, discriminatory, and dastardly.
Let’s start with sexual harassment. Under the law, sexual harassment can be: (1) quid pro quo which conditions employment (or advancement) on sexual favors or enduring sexual conduct; or (2) unwelcome conduct or comments that create a work environment that is intimidating, hostile, or offensive. (We’ve dealt with welcomeness in another post.) Often, sexual harassment cases include sexual touching, like sexual assault, but they don’t need to. Frequent comments about someone’s sex life or sexual organs (including breasts) can create a hostile work environment. Moreover, sexual harassment can be unlawful even if it has nothing to do with sexual desire. It only has to do with sex and/or sexual stereotypes.
Plain, old-fashioned sexism can also cause a hostile work environment that is unlawful under Title VII. Sexism is unlawful when enduring the offensive conduct or comments is a condition of employment or the conduct or comments are severe or pervasive enough to create a work environment is intimidating, hostile, or offensive. Sounds familiar, right? It should. Yet, sexism doesn’t need to have anything to do with the act of sex – just a person’s sex.
Take for example demeaning comments like “A woman’s place is in the kitchen,” “Women should always be barefoot and pregnant,” “Grow a pair” or (my favorite excuse for derogatory behavior) “Boys will be boys.” These comments are designed to demean women. Period. When these comments are pervasive (a/k/a happen a lot), they create a work environment that is hostile to women and unlawful. When the comments are paired with conduct, such as only assigning men to do lifting tasks or segregating the sexes to handle particular work, the employer can (and should) be on the hook for discrimination.
These derogatory comments are often coupled with other signs of sexism. This includes disparities in pay, lack of advancement, and even underrepresentation of women throughout an organization. All of these need to be tackled even though they’re hard. And, all need to be tackled even if no allegations of sexual harassment exist.
When an HR pro gets a report of sexism, she should treat it just as she would a report of racism. Could the comments be demeaning to women? Could the comments be offensive? Could the conduct be an attempt to separate employees by gender? Are other issues – like pay and representation – affected by sexism? The question of whether any sexual activity – comments or conduct – occurred does not need to enter into the analysis unless it was reported too. Just because sexual behavior is not included doesn’t mean the employer gets off scot-free. Sexism is just as unlawful all by its lonesome.
Photo by Giacomo Ferroni on Unsplash