Discrimination in any form is illegal and punishable by law. In the workplace, managers, staff, and recruiters are forbidden from making racial slurs, gender-discriminatory remarks, and asking a co-worker or applicant anything about their race, sexual orientation, or disability. This is undoubtedly a good development, but as the definition of discrimination and what’s socially acceptable expands and diversifies over the years, many employers may find themselves walking on eggshells when interacting with a foreign, disabled, or an LGBTQ+ colleague or job candidate.
For instance, an openly gay applicant walks into your office for an interview. Your recruitment specialist then completes the initial hiring process, which usually begins with an exam and ends with an interview. The applicant is shortlisted, called again for a second interview, and finally, told to wait for the department head’s final decision.
But then the department head ends up choosing a different applicant. You regretfully inform the gay applicant of this, then proceed to make the offer with the chosen candidate.
Sometime later, the police comes into your office and informs you that you have been sued for gender discrimination. But you’re absolutely sure that you’re not guilty, so how will you prove that?
What Counts as Gender Discrimination?
As you speak with your criminal lawyer, gather facts about gender discrimination and discriminatory acts. The following are the acts that count as such:
- Not hiring someone, or giving someone lower pay because of their sexual orientation. (e.g. hiring only men, and keeping women in lower-ranked positions only)
- Evaluating a candidate more harshly because of their sexual orientation, or because they don’t conform to their gender’s norm.
- Giving an employee a lower pay than someone similarly qualified or less qualified than them, because of their sexual orientation.
- Denying a pay raise, promotion, or training opportunity to an employee of a specific gender.
- Reprimanding an employee for an act that employees of another gender also observe, but not held accountable for.
- Spewing derogatory remarks, slurs, or names to an employee of a specific gender, or openly talking about your disdain for people of specific genders.
- Repeatedly using the wrong prefix or pronouns when addressing an employee of a certain gender. (e.g. calling a transwoman “Sir”)
- Rejecting an applicant, forcing an employee to go on leave, or denying major projects to an employee because they are pregnant, a woman, a man, or a member of the LGBTQ+
Proving Your Innocence
For workplace gender discrimination to be deemed illegal, everyone who has interacted with the complainant should’ve directly or indirectly treated them wrongly. For example, they have shown him the expectations or terms and conditions for the job, which involved policies that may negatively affect their gender identity. If your HR team and the department head who made the final hiring decision aren’t guilty of this, then no gender discrimination had taken place.
Your company didn’t discriminate against the complainant either if the people who interacted with him never made any homophobic slurs, jokes, or remarks. If someone teased the compliant good-naturedly or gave him a harmless, offhand comment, the law can excuse it, as it never put the complainant in a hostile environment.
If the complainant was never asked about his sexual orientation during the interview, that’s also evidence that you’re not guilty. If the complainant says that he had made his sexual orientation obvious during the interview, and insists that his rejection was primarily based on it, you may object by saying and proving that you never discussed his sexual orientation, and never discriminated against him or her in any way. You may also prove that you never checked his social media, which might’ve confirmed his sexual orientation. That’s because checking an applicant’s social media to make a decision whether to call them in for an interview can count as discrimination.
Basically, as long as provide sufficient evidence that you are not guilty of the acts enumerated above, the court should dismiss the case and clear you of all charges.
Restrictions in Proving Your Innocence
If you are based in the United States, the federal law forbids you to retaliate or punish a complainant for suing for your discrimination, or for reporting your discriminatory acts. The same restriction applies when an employee sues you or reports you to HR because of your discriminatory behavior.
Examples of retaliation include firing or demoting a complainant, reducing their salary, ostracizing them, refusing to invite them on meetings or corporate events, forcing them to take a leave, reassigning them to a less desirable position, location, or shift, and denying them company-wide memos and other crucial information.
It is highly challenging and dangerous for your reputation to be sued, but as long as you aren’t guilty, you can be confident that you’d win your case. However, there is no need to be harsh and ruthless to prove your innocence. If you maintain your amicable behavior, you and the complainant may even make peace in the end.