If you’re now the boss, you have an opportunity to do better. Creating a gender-equal work environment increases employee morale, productivity, and retention, lowers risk, and is good for business. Not to mention that it’s simply the right thing to do. Make sure you’re creating a great place to work by understanding what the law requires and then adopting best practices to go above and beyond.
WHAT DOES THE LAW REQUIRE?
There are numerous laws against gender discrimination (including discrimination based on gender identity, sexual orientation, and pregnancy) directed at ensuring equal pay and preventing harassment and other similar issues.* The most prominent federal laws in this area are Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. A brief overview of some of the general requirements under these laws follows.
RECRUITMENT AND HIRING
Simply put, it’s illegal to discriminate on the basis of sex in the hiring process. For example, it’s illegal to:
• Publish a job posting that shows a preference for applicants based on sex or discourages someone from applying for the job based on sex;
• Base hiring decisions on sex, or on stereotypes or assumptions about a person’s sex; and
• Recruit new employees in a way that discriminates against candidates because of their sex.
JOB ASSIGNMENTS AND PROMOTIONS
Decisions about job assignments and promotions cannot be based on sex, or based on stereotypes or presumptions about sex.
PAY AND BENEFITS
It’s illegal to engage in sex discrimination when it comes to pay and benefits. Specifically, wages must be equal for women and men performing substantially equal work under similar working conditions in jobs that require equal skill, effort, and responsibility. However, there are exceptions for differences in pay based on seniority, merit, or “any other factor other than sex.”
DISCIPLINE, FIRING, AND RECALL
Employers cannot base disciplinary actions on gender, and cannot base decisions to recall workers after a layoff on sex.
TRAINING AND APPRENTICESHIP PROGRAMS
Employers may not discriminate on the basis of sex when structuring and offering training opportunities.
There are important laws that prohibit sexual harassment in the workplace. These laws extend to unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature. Further, seemingly isolated and “innocent” incidents can be considered harassment if they create a hostile or offensive work environment or if they result in adverse employment decisions such as the victim being demoted. It’s important to note that the harasser can be a supervisor, co-worker, client or customer, and illegal harassment can occur outside of the workplace where there is a link to the workplace.
Finally, it’s illegal to retaliate against persons who have complained, filed a claim, or participated in an investigation or lawsuit related to unlawful discrimination.
Despite these seemingly helpful laws, the statutory framework does not actually ensure an equal work environment because the standards for proving unlawful discrimination are too extreme to give the laws teeth, and many victims of discrimination never raise the issue out of fear of retaliation. So what can entrepreneurs do to help create an equal work environment?
FIVE WAYS TO PROMOTE AN EQUAL WORK ENVIRONMENT
There are many actions that you as an entrepreneur can take to foster an equal, safe, and comfortable work environment for all employees; the suggestions that follow are just a few of the many ways to do so. Make sure to formalize your company’s efforts as written policies and train workers on those policies. In addition, your company and employees should scrupulously follow the policies in practice, and you should review and update them on at least an annual basis.
1 COMMIT TO TRANSPARENCY AND OBJECTIVITY IN COMPENSATION
One of the best ways to foster a culture of equality is to implement policies that require salaries and compensation packages to be disclosed to employees, and possibly to the public. Implementing a policy that mandates transparency creates accountability and ensures workers understand that pay works objectively. And speaking of objectivity, creating a policy that implements objective criteria for pay increases may help decrease implicit bias. However, you should avoid using criteria that are not absolutely integral to the job function or that disproportionately affect one population.
2 PREVENT SEXUAL HARASSMENT BEYOND WHAT THE LAW REQUIRES
Some states require sexual harassment training. However, the requirements usually apply primarily to supervisors, and sometimes apply only to larger businesses. Ideally, every company should provide regularly scheduled and updated sexual harassment trainings for all employees. There are affordable and even free resources available that can make sexual harassment training accessible for even the smallest businesses. These resources can come from state agencies or other providers. Additionally, you should implement policies and practices that foster regular feedback related to harassment from employees and strictly prohibit harassment in any form.
3 FORMALIZE OPPORTUNITIES FOR FEEDBACK
The best way to know if you have created a workplace that feels safe for employees is to make an effort to hear from them and to be open to feedback. You can accomplish this by having regularly scheduled meetings where employees can speak directly with supervisors about what is and is not working for them in the workplace. Although the law prohibits retaliation, it still occurs, and employees may fear incurring it. To encourage candid feedback, when possible provide mechanisms allowing employees to give feedback to others in the business who are not direct supervisors, or to outside consultants. You could also implement a system for anonymous feedback.
4 CREATE A POLICY TO HANDLE COMPLAINTS
Your business should have a defined, fair, and objective policy for handling complaints raised by workers. The policy should include investigation procedures, witness interviews, requirements related to confidentiality, written findings, timelines for the process, and other defined procedures. Complaints about harassment and/or discrimination must be taken seriously, and any employee who raises a complaint should feel safe doing so and be assured that it will be addressed appropriately and objectively. There are numerous sample policies available online that you can tailor to your individual business as you see fit.
5 IMPLEMENT GENEROUS LEAVE AND FLEXIBLE WORK POLICIES
Finally, a key to creating an equal workplace is allowing employees to have the opportunity to take care of themselves and their families. One way to do this is to provide generous leave policies that employees feel comfortable actually using. Ideally, leave will be paid, but even if you cannot afford to provide significant paid leave, an equal workplace is one that allows employees to have flexibility to take time off for pregnancy, maternity and paternity, disability, sickness, and other reasons. Beyond leave, offering employees the ability to have flexible work hours and to work from home at times can be tremendously helpful for providing them with the opportunity to care for themselves and their families. Take special care to ensure that employees who choose to take advantage of flexible work hours and working remotely do not feel disadvantaged in any way. A great first step is to offer employees the ability to work from home for a short trial period. If it doesn’t work out, you can revert to the status quo, but if it does work out, you may find that you have a happier and more productive workforce.
CREATING EQUAL WORKPLACES IS THE RIGHT THING TO DO
People spend a lot of time at work. As a business owner, you have the opportunity to create a comfortable, welcoming, and fair work environment for your workers. As you consider implementing policies to foster such an environment, it’s important to be honest with yourself and your workers about the work environment you are creating. If you are unsure how to create an equal work environment, ask for help.
Ryan Shaening Pokrasso is an attorney who founded SPZ Legal in the San Francisco Bay Area to assist entrepreneurs using business as a tool for social change and environmental stewardship. Ryan advises for-profit and nonprofit businesses as general counsel on matters ranging from entity formation and financing to intellectual property.
* The full range of these laws, and laws related to discrimination based on other protected categories such as race, color, religion, national origin, age, disability, or genetic information, is beyond the scope of this article, and entrepreneurs should consult state, local, and federal laws.
Ryan Shaening Pokrasso
Ryan Shaening Pokrasso is an attorney who founded Elevate Law & Strategy in the San Francisco Bay Area to assist entrepreneurs using business as a tool for social change and environmental stewardship. Ryan advises for-profit and nonprofit businesses as general counsel on matters ranging from entity formation and financing to intellectual property.