Know Your Rights: Sex Discrimination

Examples of workplace sex discrimination

• Your boss, coworkers, or third parties like customers direct derogatory comments, jokes, or gestures at you that are related to your sex or your status as a recently pregnant or nursing person.
• You are fired, denied a job or promotion, or subjected to less favorable terms, conditions, or privileges of employment than your colleagues (like opportunities or training benefits, or sexual harassment) because of your sex.

Your rights

• Under Title VII of the Civil Rights Act of 1964, employees, job applicants, and union members are protected from sex discrimination at the workplace and at the union hall.
• Title VII applies to employers with 15 or more employees. Some state laws provide such  protection to workers at companies with fewer employees.
• Federal courts and agencies have recognized that existing sex discrimination bans also prohibit discrimination based on sexual orientation and gender identity. The Supreme Court has recently announced it will take up that question.

What to do if you believe that your workplace rights have been violated

• Check any policies your employer has in place applying to discrimination and harassment, including complaint protections, and follow them.
• If your employer does not have an established complaint procedure, you should report the unwelcome behavior to your human resources department.
• Contact the U.S. Equal Employment Opportunity Commission, the federal agency in charge of investigating violations of Title VII, or the state or local agency with similar authority.

Sexual harassment is a form of sex discrimination. There are many kinds of conduct that may be defined as sexual harassment.  These include unwelcome sexual advances or requests for sexual favors, or other unwanted conduct of a sexual nature. Such conduct may be physical, ranging from massages or hugs to sexual assault and rape.  It can consist of verbal conduct, like vulgar jokes or discussions about sex. It can be visual, such as pornography, graffiti, or sexual gestures. Unwanted communication, like emails or text messages, or conduct directed at you on social media, also may be considered harassment.

Be aware that harassment need not target you specifically to be unlawful.  And the harasser’s intention – such as to be humorous or to pay a compliment – also does not affect whether the conduct is illegal.

Sexual harassment can be perpetrated by co-workers, subordinates, and supervisors who don’t have direct authority over you.  Harassers also may be third parties, like a customer, vendor, or independent contractor like a consultant.

Is sexual harassment necessarily “sexual” in nature?

Harassment does not have to be motivated by sexual desire or be sexual in nature to be unlawful. Sexual harassment can include statements that belittle someone based on their sex, a policy that disadvantages a group based on sex (regardless of intent), or an environment that is hostile toward members of the disadvantaged sex. This includes hostility directed at you because of your sexual orientation, your gender identity, or because you do not conform to stereotypes about how someone of your sex should look or act. Harassment based on other sex-based traits, like pregnancy or breastfeeding, also is unlawful. It can be illegal regardless of whether the perpetrator and victim are of the same sex or different sexes.

What separates conduct that is merely obnoxious from conduct that is illegal harassment?

• Simple teasing, offhand comments, or isolated incidents that are not very serious and do not reoccur usually will not be considered unlawful. Harassment is illegal when it is so frequent, widespread, or severe that it affects your job, unreasonably interferes with your work performance, or creates a work environment that is intimidating, hostile, or objectively offensive.  
• Harassment also is illegal where your submission to it – or your rejection of it – is made a condition of your employment or advancement; for instance, if your supervisor promises you a promotion if you sleep with him, or threatens to fire you if you do not. If you are fired or face other negative action because you oppose the harassment, such action also likely violates the law.

What should I do if I think I am being sexually harassed?

• If you feel safe doing so, tell the harasser that the conduct is unwelcome and ask that it stop. If you do not feel comfortable confronting the harasser, or if the harassment continues despite your requests, check your employer’s policies regarding harassment, and follow its instructions for filing a complaint.
• If your employer does not have formal policies against harassment, inform your employer’s human resources department or a supervisor. If you are a member of a union, tell your union representative.
• Keep a record of the harassment and other negative treatment. As soon as possible, write down what happened – what was said or done, who was present, where you were, and when it occurred.  It is helpful to do so in a text message to yourself or other method that will date and time-stamp your notes. Do not use your employer’s computer or your company email to make these records.
• It is natural to be reluctant to talk about harassment, due to embarrassment or for other reasons, like fear that you might be punished.  But if you do not tell your employer about the harassment, it may harm your ability to later bring a legal claim. Also, it is illegal for an employer to retaliate against you.  One way to feel safer is to come forward with a group. A harasser often does not limit his/her behavior to just one person; talk to your co-workers and see if they are facing the same behavior.

What if I complain and nothing changes?

Unfortunately, taking legal action might be your only option.  It is important to talk to an attorney who specializes in employment law. You may submit a request for assistance to the ACLU, at by filling out the sex discrimination legal intake form.

• The National Employment Lawyers Association (NELA) is a group of attorneys who regularly represent employees (not employers), and has an attorney locator on its website, www.nela.org. Your state or local bar association also can provide referrals.
• The Time’s Up Legal Defense Fund can defray the cost of legal assistance and maintains a network of attorneys willing to represent harassment survivors.  
• Low- and no-cost legal assistance may be available through state or local legal aid or legal services organizations.  Local law schools may run “clinics,” which are free services provided by law students supervised by an attorney-professor.
• You also may file a complaint with the EEOC, at www.eeoc.gov, or your local human rights agency. Note that you must file your charge as early as 180 days after the last act of harassment against you, so do not delay.  You do not need an attorney to file a charge.