Most transgender individuals and women have shown they can provide excellent services in the workplace. If given a chance, these people do well, even better than men. Women can perform better than men in some cases. Unfortunately, sex/gender discrimination still happens more regularly than it should. Transgender people and women have limited access to opportunities to climb the corporate ladder. They find it challenging to access promotions and exercise authority in their workplaces.
Men also face discrimination because of their sexual orientation or other factors like religion, political views, race, tribe, and other group affiliations. You should pursue justice if you have been discriminated against because of gender or any other reason. It does not matter whether discrimination was unequal pay, discriminatory standards, or failing to promote an eligible employee ahead of an unqualified employee. At the Sexual Harassment Attorney, our skilled attorneys can help you access the deserved justice in California.
Treatments That Can Amount To Gender Discrimination
Some of the treatments that can be considered as gender discrimination include:
- Women receive fewer assignments because of pregnancy, being forced out on leave, and being denied employment.
- Your employer is subjecting you to illegal sexual advances, asking sexual favors, or other physical or verbal harassment that is sexual.
- Repeatedly or deliberately being referred to as a different gender or called by a name that you do not identify with. For example, a transgender man is being referred to as ‘’Miss’’ or being called by his dead name.
- Hearing hostile comments regarding individuals of a particular sexual orientation or gender identity. You can also be called insulted, derogatory names, or slurs because of your gender identity.
- Your employer punishing you for something that other workers of a different gender do all the time but never disciplined for
- Your employer denies you a training opportunity, pay raise, or promotion that is given to individuals of another sexual orientation or gender identity who are less or equally qualified like you.
- Your employer pays you less than a person of a different sexual orientation or gender who is less or equally qualified as you or who has fewer or similar job duties as you.
- A woman facing discrimination based on gender stereotypes is a form of gender discrimination. For example, a woman can receive a negative evaluation, which criticizes her for being too aggressive while praising a man who behaves in a similar manner for showing leadership. Discrimination against a woman can also involve condemning her for keeping short hair and telling her to be more presentable.
- Being evaluated more harshly or being held to higher or different standards because of your gender or because you do not present yourself or act in a manner that follows the traditional ideas of masculinity or femininity.
- Being given a lower-paying position or being denied employment because of your sexual orientation or gender identity. For example, employers can hire women for specific jobs or deny women jobs.
However, not all gender discrimination is explicit or deliberate. It can still be considered discrimination if your employer does something that ends up harming or excluding you because of your gender without intending to. Some policies or practices, like hiring requirements or tests, sometimes do not say anything regarding gender. The employer might not have implemented policies to keep women, nonbinary, or transgender individuals out of specific jobs. However, the policies could still end up having a negative impact. These types of policies or practices can still be regarded as discrimination. You can file a discrimination claim if you have been denied a job-related chance, paid less, or were fired due to an unfair policy.
Workplace gender discrimination can only be unlawful if it encompasses treatment that negatively affects the terms or conditions of your employment. The job’s terms or conditions are all the benefits, rules, and duties of a job. Most of the time, the terms or conditions are negotiated by an employee and employer or set by the employer during hiring. These terms and conditions are negotiated and agreed on as part of the collective bargaining process in unionized workplaces. The terms and conditions can include:
- Performance evaluation standards
- Starting salary
- Sick and vacation days
- Dress code
- Working hours and
- Your work duties
Laws About Workplace Sex/Gender Discrimination
According to Title VII of the Civil Rights Act of 1964, gender discrimination is unlawful. It is a crime under this law for your employer to discriminate against you based on your national origin, religion, color, race, or sex. The Supreme Court, however, extended this protection in June 2020 to also cover sexual orientation and gender identity. It is also an offense for employers of 15 or more employees to use the above categories to deny employees jobs, fire them, and pay them less. An employer can also face charges under this law if he/she discriminates against you in terms of privileges of employment or working conditions.
Title VII was enacted to ensure employers are accountable for offering job opportunities without discrimination. This law does not allow employees to file lawsuits against people unless they are employers. For example, this law does not apply if a customer discriminates against you at work.
Title VII law also covers retaliation in the workplace. It is a crime under this law for an employer to punish or retaliate against you for opposing or reporting discrimination or engaging in a legal action or investigation associated with discrimination. Workplace retaliation will include:
- Being reassigned to an undesirable location, shift, or job
- Being forced to go for a leave
- Receiving a reduction in your hours or a pay cut
- Being demoted or fired
Retaliation can also worsen, build up, or become subtle over time. Examples include:
- Being cut off communications from you were previously on
- Being denied a chance to attend meetings
- Being iced out by coworkers
In California, the Fair Employment and Housing Act (FEHA) offers stronger protections and covers more workers and employers than Title VII. FEHA applies to employers with five or more employees, not only those with 15 or more, like Title VII. It is a crime for an employer to discriminate against an employee not only based on sex but also based on:
- Gender
- Sexual orientation
- Gender expression
- Gender identity, among other things
Your Rights
Some of the rights you have under FEHA include:
Work in a Gender Discrimination-Free and Safe Environment
The law demands that your employer offers a safe working environment that is not hostile to you based on your sexual orientation, gender identity, or sex.
File a Complaint or Charge of Sex/Gender Discrimination
The law allows you to file a complaint or charge of gender discrimination with a government agency like:
- Equal Employment Opportunity Commission (EEOC), or
- Fair Employment Practices Agencies like California’s Department of Fair Employment and Housing (DFEH).
The law also allows you to inform your employer of your intention to file a charge, and he/she cannot retaliate against you for taking this step. There are, however, strict deadlines within which you are required to file charges with government agencies. You only have 180 or 300 days to file the chargers with the EEOC. This period starts from the last act of discrimination.
Testify As A Witness or Participate In An Investigation
The EEOC or other government agencies can carry out investigations on sex/gender discrimination, and they can invite you to work with them. At this point, your employer cannot prevent you from testifying at a hearing, providing evidence, or working with a government agency that is investigating sex/gender discrimination at your workplace. Participation will still be a right even if the investigation establishes no discrimination. In this case, your employer cannot retaliate because you worked with EEOC.
Make a Copy Of Your Personnel File
If you file a lawsuit against sex/gender discrimination, you can request your personnel file with performance evaluations. You can also ask for your pay and employment records and other crucial details, which you can use as evidence. Your union representative or HR department must have details about how to get your personnel file for review.
Protest or Picket Against Sex/Gender Discrimination
You will engage in a concerted activity if you get together with one or more of your fellow employees to raise concerns regarding your working environment or pay. Picketing or protesting is protected by California’s National Labor Relations Act.
File a Grievance
The collective bargaining agreement covers your work’s terms and conditions if you belong to a union. You should talk to your union rep about filing a grievance if you feel your employer is treating you unfairly or not complying with the contract.
Report The Sex/Gender Discriminatory Policy or Behavior To Your Boss or HR
The law allows you to report discriminatory policy or conduct to your boss, HR, or any other person with authority in your company. You should present the complaint or report in written form and make copies to serve as evidence if required.
Speak or Talk Against Sex/Gender Discrimination at Work
It is recommended that you speak against gender discrimination at work, whether it is happening to you or another person. You can do this with any person, including your supervisor or colleagues. The law also allows you to tell your employer that you feel the company’s management, practice, or policy is discriminatory or engaging in discrimination. It is an offense for your employer to punish or retaliate against you for speaking with your colleagues concerning discrimination. You have a legal right to take legal action if your employer retaliates.
Exceptions To Sex/Gender Discrimination Statutes
There are few exceptions where the policy or practice of the employer treats employees differently. This is referred to as the ‘’bona fide occupational qualification’’ (BFOQ) defense. In this case, your employer must provide substantial evidence that the policy or practice is valid. The employer can allege that the excluded employees cannot effectively and safely work, and the essence of the business operation will be undermined.
The cases of BFOQ exceptions are usually narrow, including therapeutic or privacy-based exceptions like assigning healthcare workers or same-sex childcare specialists. Another exception is hiring a female TSA agent who pats down on female passengers.
Paying Male Workers More Than Female Workers
According to the California Equal Pay Act, employers must pay workers equally. This law demands equality from employers, especially if the job is viewed as a composite of duties, effort, or skill and done in the same working environment.
The California Pay Act and Equal Pay Act aim to prevent pay disparity in how women and men are compensated for the same jobs. This law prohibits employers from paying women and men different wages for the same job. An employer can only show the wage disparity based on one or more of the following factors:
- A bona fide factor other than sex, like experience, training, or education
- A system that measures income by quality and quantity of production
- A seniority system
- A merit system
Bona Fide Factor Test
The employer can face charges for violating the equal pay laws unless he/she proves that the bona fide factor is:
- Consistent with a business necessity
- Work-related with respect to the alleged position
- Not based on or derived from a sex-based differential in compensation
A ‘’business necessity’’ is ‘’an overriding’’ lawful business agenda in which the factor relied upon accomplishes the purpose of the business it is expected to serve. The defense, however, will not apply unless the employer proves that a bona fide factor was used to differentiate compensation. This will happen if you prove that another business practice can serve a similar business agenda without wage inequality.
Filing a Complaint With The EEOC
Sex or gender discrimination violates federal and state laws in California. Federal sex discrimination statutes are enforced by the Equal Employment Opportunity Commission (EEOC). The allegations of sex discrimination at the state level are handled by the California Civil Rights Department (CRD). However, the law provides broader protections than federal law, even if the federal and state laws protect employees against gender discrimination. The broader protections include giving employees ample time to file their complaints.
In most cases, gender discrimination lawsuits require proper administrative solutions before you can file a complaint against your employer. In this case, you must first go through the CRD complaint procedure. Your attorney can also file a case with the CRD and immediately secure the right-to-sue notice without waiting for the administrative process.
The Procedure For Filing a Case
You can petition sex/gender discrimination directly with the CRD. You must present a pre-complaint inquiry within three years of the last discrimination case, retaliation, or harassment. You can petition using the form from the CRD website, over the phone, or online.
The pre-complaint inquiry will commence an intake interview with the CRD and help to establish whether the allegations qualify for investigation. An investigator will reach out to you within 60 days to discuss the details of the inquiry. Your case will be dropped if the CRD representative establishes that your allegations are invalid. If this happens, the law allows you to file a lawsuit against your employer in court. However, your case will be prepared for your signature and taken to your employer if the CRD representative accepts your pre-complaint inquiry. Your allegations can also be dual-filed with the EEOC.
The CRD will evaluate your employer’s answer once he/she responds. Sometimes, the CRD can provide dispute resolution services that allow you and your employer to solve the case. The CRD will start its investigations if your negotiations fail.
The CRD’s investigations will establish if there was a violation of the law. Your case will proceed to the CRD Legal Division if the investigations prove that there was a violation of the law. The case will, however, be dismissed if there is no violation. You can file your case with the court once it is denied.
The Damages You Can Recover From Gender Discrimination Lawsuit
You will recover the damages in an employment discrimination case based on the type of discrimination you suffered and the level of the injury. The damages can include punitive damages, money damages, and equitable remedies.
The court can award punitive damages if your employer’s actions caused you extreme distress.
Employment discrimination damages will also include losses from:
- Emotional distress for the mental anguish that you experienced due to the discrimination
- Pain and suffering
- Bonus payments
- Pension benefits
- Higher income from a raise
- Higher income from a promotion
- Front pay, and
- Back pay
Find a Sex/Gender Discrimination Attorney Near Me
Sex or gender discrimination in the workplace can have a toll on your mental wellness and self-esteem. The good news is that the law has in place statutes to curb sex/gender discrimination. It is an offense for an employer to discriminate against employees based on their gender, sex, or sexual orientation.
If you or someone close to you is a victim of sex/gender discrimination in California, our experienced attorneys at the Sexual Harassment Attorney can help. Our attorneys have vast experience, making them well-suited to fight for your rights. For timely and convenient legal representation, contact us at 800-905-1856 to speak to one of our attorneys.
