Hiring based on gender

Hi, welcome to the 21st century. We have phones that are literal pocket computers, there are cars that drive themselves… but people are still hiring based on gender. Unfortunate, but true. Even though hiring based on gender feels like a problem that should have been solved about 50 years ago, it still occurs frequently nowadays. Did you know that globally, 49% of the women participate in the labour force, meaning they are employed or actively looking for employment? For men, that’s 75%. That’s a staggering difference of 26%.

Besides hiring based on gender, sex discrimination and sex orientation discrimination in the workplace still frequently occur. What exactly is sex discrimination in the workplace or discrimination based on sexual orientation? And what gender discrimation laws are there to protect you from hiring based on gender? We’ll answer all these questions (and more) in this article.
 

The issue of gender bias in recruitment

Though hiring based on gender can happen to both genders, it’s most frequently associated with women. The reason some employers favor men over women, is that employers are looking for ‘ideal workers’: employers that are committed and are willing to sacrifice personal concerns for the sake of their career. As some women are mothers, some people don’t believe being an ‘ideal worker’ and ‘good mother’ at the same time is possible. However, this is an old fashioned belief, as women are no longer the only caregivers for the children.

Sexism in hiring is possible due to many different stereotypes surrounding certain genders. Women are believed to be less strong, more emotional and too focussed on family life. Some people genuinely believe in these stereotypes and use them as reasons to hire based on gender. But sometimes, these stereotypes have been so ingrained in society that people subconsciously end up hiring based on gender. According to research by Katherine N. Coffman and Christine L. Exley, employers don’t necessarily favour men because they are prejudiced against women but instead have the inherent perception that men are generally better at specific tasks. This is also known as statistical discrimination. Coffman told Harvard Business School: “With statistical discrimination, you have certain beliefs about men versus women and what they can do and given those beliefs, you choose the person who you think is the best person to hire — you are simply acting in a way that you think will maximise your profits.”

So what can we do about hiring based on gender when it usually happens on a subconscious level? There are a few solutions that may help close the gender gap in hiring, such as:

  • Using artificial intelligence for recruiting.
  • Leaving gender identifying information off of CVs and cover letters.
  • Using a standardised interview process to avoid gender bias in interviews.
  • Including both men and women in the hiring process.

 

What is (indirect) sex discrimination?

With hiring based on gender, we speak of sex(ual) discrimination. Sex discrimination is when you’re treated differently because of your sex. There are different types of sex discrimination:

Direct discrimination is when someone treats you worse than someone of the opposite sex because of your sex. For example, when you aren’t hired based on your gender, and are told it’s because women aren’t as good at the job as men.

Indirect discrimination is when there is a company rule or policy that puts one sex at a disadvantage. For example, if there is a rule in place that you have to work overtime, this could negatively affect women who have to pick up their children at a particular time.

Harassment is when someone makes you feel humiliated, offended or degraded.

Sexual harassment is when someone makes you feel humiliated, offended or degraded because they sexually treat you. You could also be harassed for refusing to put up with (sexual) harassment.

Victimisation happens when you are treated badly because you’ve complained about sex discrimination or when you support someone who has.

When people hire based on gender, this is often a case of direct or indirect discrimination. Sometimes, hiring based on gender is lawful. For example, when being of a particular sex is an occupational requirement. In addition, if a company is taking positive action, hiring based on gender is allowed. For example, if a mainly male company wants to encourage more women to join the firm, they can hire based on gender.
 

Sexual discrimination in the workplace

Aside from hiring based on gender, there is still a lot of gender discrimination in the workplace. Most frequent is the discrimination of women in the workplace. Good to know: discrimination based on sex is illegal. Gender identity discrimination is also unlawful. Are you transgender and planning to transition, in the process of transitioning or have you already transitioned? Then you are also protected by law, and employers can’t discriminate against you. If you’re non-binary and not transitioning, you may be protected, but the law is complicated on this front. You’re best off getting specialist advice if you feel like you’re being discriminated against.

The law also protects you from getting less pay because of your gender. Because of this, the gender pay gap has been closing significantly over the past few years. For example, in 1997, there was a 27.5% gender pay gap, which has now decreased to 15.5%.
 

What is sexual orientation discrimination?

Sex orientation discrimination occurs when you are being mistreated due to your sexual orientation. This is usually a predisposition towards heterosexual people, which leads to a bias against members of the LGBTQIA+ community. Sometimes people may assume you have a certain sexual orientation, regardless of whether this is true or not. In this case, you could experience sexual orientation discrimination for a sexual orientation you may not identify with. This is known as discrimination by perception. Discrimination by association happens when you are being discriminated against for being connected to someone who has a particular sexual orientation.

In some cases, a difference in treatment based on sexual orientation may be lawful. For example, if a specific sexual orientation is an occupational requirement, people can be hired based on their sexual orientation. For example, an employer of an LGBT helpline may want to hire someone from the LGBTQIA+ community. Likewise, if a company wants to encourage LGBTQIA+ people to join their team, this could be a positive action, which is also legal.
 

Sexual orientation discrimination in the workplace

Just like sex discrimination in the workplace, sexual orientation discrimination in the workplace is illegal but still happens. If you feel you are being bullied, harassed or discriminated against because of your sexual orientation, you have every right to take action.

Do you feel like you’re experiencing gender discrimination at work or that you’re being discriminated against for your sexual orientation? Follow these three steps to make sure, or have a look at this checklist by citizens advice:

  1. Check to see if you are protected by discrimination law. If you are being discriminated against for a protected characteristic, you are covered by the Equality Act 2010.
  2. Find out if your employer is responsible for the unfair treatment. Your employer is responsible if you are being discriminated against at work, work-related events and social events organised by work. Even if your employer is not the one discriminating against you, they are still responsible.
  3. Find out what type of discrimination it is. This is most likely sex discrimination or sexual orientation discrimination. Write down examples and situations in which you experienced sex (orientation) discrimination in your employment.

 
If you’re certain you are in fact dealing with sex discrimination, the best thing to do is:

  1. First, speak to your employer about it in an informal meeting.
  2. Gather evidence of every occurrence, so you have proof.
  3. If making an informal complaint didn’t achieve anything, you can formally complain to your employer.
  4. If this still hasn’t solved the issue, you can also contact your HR department; perhaps they can mediate between you and your employer.
  5. If none of these methods works, you can take legal action at an employment tribunal.

 

Gender discrimination laws

As we’ve mentioned, you are protected by law against any kind of sex discrimination or discrimination in general. That’s why hiring based on gender is in fact illegal. The laws protecting you from sex discrimination are:

  • The Equal Act 2010. This Act protects you from any form of discrimination in the workplace and during the hiring process. For example, when applying for a job, an employer cannot use what you say about yourself in your CV or cover letter to discriminate against you. In addition, they can not reject or hire based on gender. An employer is also not allowed to discriminate against you in the interview process, meaning they can’t ask questions that make assumptions about you based on your gender or harass you during your interview.
  • The Equal Pay Act 1970. This act gives people the right to earn as much as their counter sex in the same position. For example, you are entitled to the same pay as members of the opposite sex if you are doing the same work, work that is rated as equivalent under an analytical job evaluation study or work that is proved to be of equal value.
  • The Maternity and Paternal Leave etc. Regulations 1999. This law gives you the right to maternity and paternity leave. You are entitled to 18 weeks of paid ordinary maternity leave and 29 weeks of additional unpaid maternity leave if you’ve worked for the company for more than one year.

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FAQ

  • Can you hire based on gender?
    No, hiring based on gender is illegal, unless the sex is an occupational requirement or if there is positive action.
  • Can you be denied a job based on gender?
    No, if you are denied a job because of your gender, you are being discriminated against. The only exceptions are if there is an occupational requirement for a certain sex, or if the company is engaging in positive action.
  • What is gender bias in the hiring process?
    Gender bias in hiring is when employers hire people purely based on their sex, or favor members of a specific sex for the job.
  • What is sexual discrimination in the workplace?
    Sexual discrimination in the workplace is when you’re treated differently because of your sex at work.
  • What is sexual orientation discrimination in the workplace?
    Sex orientation discrimination in the workplace occurs when you are being treated unfairly at work due to your sexual orientation.
  • What laws protect me from sex discrimination in the workplace?
    The three main laws that protect you from sex discrimination in the workplace are: the Equality Act 2010, the Equal Pay Act 1970 and the Maternity and Paternal Leave etc. Regulations 1999.