Gender Discrimination in the Workplace

Andrew Willis

Andrew Willis

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18 Oct 2019

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Discrimination in the workplace occurs when you treat an employee less favourably because of a protected characteristic.

According to the Equality Act 2010, you can’t treat your staff differently because of attributes that make them who they are. Protected characteristics under this legislation include:

  • Age
  • Sex
  • Race
  • Religion
  • Disability
  • Sexual orientation
  • Gender reassignment
  • Pregnancy or maternity
  • Marriage or civil partnership status

This piece explores the legislation relating to gender discrimination in the workplace as well as some examples. We’ll also offer tips for creating a gender discrimination policy.

 

What is gender discrimination?

It’s discriminating against an employee because of their sex. It can be either:

  • Direct discrimination: Involves the unfair treatment of an employee because of their sex
  • Indirect discrimination: Involves treating a person the same as others but with the treatment having a negative effect because of a protected characteristic they have

Gender discrimination at work may also be in the form of:

  • Harassment: Involves unwanted behaviour based on an employee’s gender
  • Victimisation: It involves treating an employee less favourably because they’ve complained about discrimination or supported a co-worker who did

So, is a gender pay gap discrimination? Yes, it’s a form of discrimination. It’s against the law to pay male employees more than female employees for performing the same tasks. A study in Australia found that discrimination is the most significant factor affecting the gender pay gap.

It’s worth noting, although similar, this isn’t the same as gender reassignment discrimination, which is also protected under the Equality Act.

That involves treating an employee less favourably because they identify as a gender different from the one assigned to them at birth. In this situation, it helps to have policies in place that relate to their

  • Dress code
  • Name change
  • Toilet use
  • And any other support they might need including time off and counselling

What is positive gender discrimination?

It involves favouring someone over another because of a protected characteristic, which the equality act 2010 also doesn’t allow for.

For example, you can’t insist on only hiring male applicants for a nursing position. Even if your justification was to balance out previous discrimination against them when applying for that role.

Gender discrimination examples

There’re many examples of gender-based discrimination in action. From recruitment to the policies, work processes and even dismissals.

Direct discrimination, for example, involves dismissing a staff member or changing their duties after gender reassignment.

On the other hand, if you change your working hours so employees doing shift work finish at 5 pm instead of 3 pm, this could class as indirect discrimination as it may put female employees at a disadvantage because it’s more likely that they’re the primary caregiver for their children.

Other common examples of discrimination based on gender include:

  • Prioritising male job applicants for a position that involves physical activities
  • Not considering female applicants for a role because you think they won’t fit in
  • Favouring women over men for care positions because they’re thought of as being more nurturing

How to stop gender discrimination

As part of your duty of care to your employees, you’ll also need to protect them against all forms of discrimination. To do this, you must:

  • Educate employees on discrimination
  • Develop a disciplinary process
  • Deal with issues of discrimination
  • Train managers and supervisors on how to identify and respond to discrimination in the workplace
  • Review and update your policies on equality and discrimination at work
  • Respond promptly, appropriately and confidentially to all complaints of inappropriate behaviour

Gender discrimination policy

It’s important to have a policy in place that addresses forms of equality and discrimination in the workplace including gender.

 This is to avoid claims of discrimination and employment tribunal proceedings. In it, you’ll highlight the:

  • Aim of the policy
  • Company’s stance on discrimination in the workplace
  • Process for reporting it
  • Disciplinary procedure when it occurs
  • Wording on how to stop gender discrimination

You should ensure this policy addresses discrimination at every stage including when:

  • Determining pay
  • Deciding training and development opportunities
  • Selecting employees for promotion
  • Dismissing employees
  • Selecting employees for redundancy

Expert support

Speak to one of our experts for help creating or updating your equality and discrimination policies. Alternatively, if you have other HR and employment law concerns, contact us today on 0808 145 3380.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in Employment law, HR and Commercial Legal advice for large organisations across the United Kingdom.

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