Like many other aspects in life, gender or sex is a factor that employers should never consider when it comes to employment that is equally available to both females and males. Sex discrimination is less common today than it was before. However, the point is, it still happens and results in many people losing out on job opportunities or losing their employment without reason apart from their sex.

Workplace sexual discrimination is unlawful under both federal and state law. That means you deserve compensation from your employer if you can successfully prove they discriminated against you based on your gender. You want to talk to an employment lawyer to know whether you have a case, and if so, increase the chances of a positive outcome.

At Empower Sexual Harassment Attorneys, we are ready to evaluate your case facts during a complimentary consultation and pursue legal action for you. Do not hesitate to call us for help obtaining justice and the compensation you deserve.

Workplace Gender Discrimination Overview

Although similar, gender and sex discrimination do not mean the same thing. Sex discrimination means negative actions against an employee due to their biological attributes. It also includes pregnancy discrimination. Conversely, gender encompasses social behaviors, roles, expressions, and an individual’s identity. That means it is unlawful for an employer to discriminate against an employee based on gender behaviors, stereotypes, or the employer’s perceived notion of a person.

In California, workplace sex and gender discrimination statutes safeguard employees from being discriminated against based on several different characteristics. To comprehend who and what characteristics these laws cover, you want to understand all the words used when referring to sex or gender. Title 2, Section 11030 of the California Code of Regulations describes these terms, which apply to a sex or gender discrimination claim or lawsuit:

  • Biological sex: The biological sex assigned to people at birth (intersex, male, female, and more).
  • Transgender: An individual whose selected identity does not match their biological sex
  • Gender identity: The sex an individual identifies with, their biological sex notwithstanding (gender-fluid, transgender, man, woman, and more).
  • Gender expression: An individual’s gender-related appearance or conduct (styles of speech and dress, et cetera).
  • Transitioning. The process a person undergoes when they start living as a different sex from what they were previously
  • Sex stereotype: An assumption regarding an individual’s sex or gender based on behavior, gender, appearance, gender roles, gender expression, generalizations, and inability or ability to perform particular tasks

Workplace sex discrimination laws generally address the two most prevalent types of discrimination. These are discriminations against sexual minorities and women. However, the laws protect men too; the laws are broad and protect every employee.

There are cases where male employees also face discrimination, similarly to female employees, and for the same reasons. For example, if an employer or manager prefers having only female employees, they have committed workplace gender discrimination.

Misgendering is also considered sex or gender discrimination. Misgendering entails the act of intentionally refusing to acknowledge someone’s preferred pronouns. It also covers actions of assigning a gender to a person, which the same individual does not identify with.

Regardless of your gender or sex, an employer would have violated your rights if they discriminated against you based on your gender or sex. In that case, you want to consult an employment attorney to interpret your case better.

Common Instances of Sex or Gender Discrimination

There are generally two types of gender and sex discrimination in the workplace: disparate treatment and disparate impact.

Disparate treatment is also called intentional discrimination. It is the conscious discrimination against a person based on gender. Examples of intentional discrimination include the following:

  • Retaliation. It involves an employer retaliating against a worker of a specific gender who reported gender or sex discrimination, while workers of another gender who report similar cases are not similarly retaliated against. 
  • Harassment. It involves an employer condoning or allowing sexual discrimination or harassment against workers of a particular gender, while workers of other genders do not face this kind of treatment.
  • Termination. It is where an employer fires a female worker because she has conceived or goes for maternity leave, whereas it does not terminate male workers who go for similar leaves.
  • Promotion practices. It involves a company promoting workers of a particular gender more regularly than workers of other genders, even when all genders have similar job performance and qualifications.
  • Hiring practices. It involves a company hiring only workers of a given gender for particular positions, like physically demanding work or leadership roles, while relegating workers of other genders to support-based roles.
  • Unequal pay. It is where a company pays workers of one gender more than employees of the other sex for the same job.
  • Unequal treatment. It is where the employer fails to treat all workers equally regarding workplace privileges, raises, and bonuses in certain situations.
  • Denial of access to facilities. It entails denying workers of a particular gender, for example, transgender employees, access to facilities, like restrooms, that align with their identity.
  • Exclusion from work-related activities. It excludes employees of a given sex from essential meetings, team activities, and other work-related activities.

Other instances of disparate treatment discrimination include the following:

  • Exclusion from crucial meetings due to gender
  • Subjection to a hostile workplace environment
  • The request for female employees to put on revealing clothes for male clients and vice versa
  • One gender being assigned different work responsibilities than the other gender or sex
  • One gender receiving unexpected job review changes

Disparate impact discrimination is based on procedures or policies that adversely and disproportionately impact employees of a particular gender. Disparate impact discrimination examples include the following:

  • Scheduling practices. This practice involves a company implementing scheduling practices that disproportionately affect employees of a specific gender. For example, requiring all employees to work on weekends or late nights, which may be challenging for workers of a particular gender, for example, female workers who are still breastfeeding.
  • Language requirements. It entails an employer implementing language conditions for positions disproportionately exempting workers of a specific gender. An example includes necessitating fluency in a language by all workers when the language is spoken fluently, mainly by a specific gender
  • Education requirements. A company implementing educational conditions for particular positions that disproportionately exclude workers of a specific gender. An example includes an employer adopting screening criteria or tests that significantly screen out applicants of a particular gender.
  • Tests for physical fitness. This practice is when a company implements physical fitness exams with higher passing standard levels for employees of a given gender than workers of another gender, disproportionately excluding those employees from consideration for particular positions.
  • Weight and height requirements. It is when a company implements weight and height requirements for particular positions, which disproportionately exclude employees of a specific gender from consideration.

Laws Against Sex Discrimination

Many people feel they receive unfair treatment at work. However, that usually does not automatically mean they are being discriminated against. As far as sex discrimination is concerned, three specific statutes apply. These are the following:

  • Title VII of the Civil Rights Act of 1964
  • Equal Pay Act of 1963
  • The Fair Employment and Housing Act (FEHA)

Title VII of the Civil Rights Act

The primary federal statute that prohibits gender discrimination is Title VII. This law prohibits workplace discrimination based on all protected characteristics, including sex, religion, national origin, race, and color. It applies to all employers with at least 15 workers and protects workers against discrimination in different areas of work, including:

  • Disability leave
  • Job training sessions
  • Recruiting and hiring practices
  • Benefits and compensation
  • Termination

The FEHA

Federal law provides general protections against discrimination. However, this law is not comprehensive and does not have distinctive protections for women and sexual minorities. Consequently, California law offers deeper protections against gender discrimination to fill the void left. The state law establishes gender expression and gender identity protections for gender minorities.

The FEHA is the primary California law against workplace sex discrimination. Under this law, it is unlawful to discriminate against a person for a particular protected class. The FEHA safeguards job applicants and employees and applies to all business practices. This includes the following:

  • Job screening and applications
  • Job advertisements
  • Hiring practices and interviews
  • Job assignments
  • Terminating, promoting, and transferring employees
  • Employee benefits
  • Working conditions
  • Participation in worker programs

The California FEHC (Fair Employment and Housing Council) has established regulations that have broadened the FEHA’s scope. That said, FEHA provides these sex discrimination protections:

  • Protections against assault and sexual harassment
  • Restrictions on dress codes or gendered employment duties
  • A ban on mandating that workers provide documentation or evidence of their sex
  • A legal right for workers to be referred to by the gender pronouns they prefer
  • Protections for any transitioning employees.

The California FEHA applies to companies with five or more workers.

Equal Pay Act of 1963

The Equal Pay Act of 1963 is a federal law that specifically targets wage discrimination. It mandates that employers pay men and women equal wages for performing substantially equal work, especially for jobs that require the same level of skill, effort, and responsibility.

Workplace SOGI (Sexual Orientation and Gender Identity) Discrimination

The Supreme Court verdict in the case of Bostock v. Clayton County, Georgia, in June 2020 extended federal protections against gender discrimination to LGBTQ+ employees. This ruling added gender identity and sexual orientation to the protected classes. Per the court’s verdict, discrimination contingent on transgender status or homosexuality necessarily involves discrimination contingent on sex. That is, the first one cannot occur without the second.

If you are subject to workplace SOGI discrimination, you want to talk to a sex discrimination lawyer as soon as possible. An attorney can assist you in understanding your legal options and ideal next steps. 

Other California statutes against workplace sex discrimination include the following:

  • Restroom sign statute: This state law mandates that all single-occupancy restrooms in businesses or public places be designated as all-gender restrooms. This provides safe and equal bathroom access for transgender and gender non-conforming persons.
  • SB (Senate Bill) 396: This is the law on workplace training. The law is otherwise known as the Transgender Work Opportunity Act. It requires that California companies with no less than five employees offer workplace harassment training based on gender, sexual orientation, and expression. This training must be part of the more extensive sexual harassment training. Additionally, the law requires that companies hold the training every twenty-four months.

These statutes show California’s commitment to protecting employees’ rights and dignity based on gender. They ensure everybody is entitled to equal treatment without discrimination in many aspects of public life.

Steps to Take to Prove Workplace Gender Discrimination

If you have reason to believe your employer has discriminated against you based on sex or gender, you need not let everything slide. Your employment lawyer, experienced in gender discrimination matters, can assist you in taking the necessary steps, including the following:

  • Collect evidence. Gather all applicable company reviews and performance policies. Inconsistencies between policy and practice or unexpected adverse alterations in performance reviews can indicate discrimination.
  • Document gender discrimination incidents. It is essential to document all incidents of discrimination. To document acts of discrimination, you can store all the relevant emails, record all the dates and times of the discriminatory activity or comments, and keep track of all witnesses.
  • Witness testimonials. Take note of witness accounts. This can be solid evidence. Your colleagues who can willingly corroborate your story will strengthen your lawsuit or claim.
  • Compare with colleagues of other genders. If possible, compare and contrast the differences in how you and the colleagues of different genders  than yours are being treated, mainly in areas like job assignments, promotions, disciplinary actions, or pay
  • Explore internal company channels. Explore the employer’s internal avenues to solve issues. Most employers have established policies and procedures to address discrimination and harassment complaints.
  • Legal aid. If internal channels cannot help, looking for legal aid is the next move. An expert attorney can help you determine how best to build a solid claim and obtain justice for your employer discriminating against you. They will be able to help you figure everything out. For example, they will help you interpret your case, understand your rights, and discuss your legal options.

Remember, each case differs. So, the steps you take in your particular case will be based on the special facts surrounding your case. You want to consult an expert legal counsel to assist you in navigating the intricate aspects of the case.

Available Legal Options If You Face Gender or Sex Discrimination

If you face sex discrimination, you have various legal options at your disposal. The following are some of the steps you could take to acquire justice:

  • Report the sex or gender discrimination. You could escalate the discrimination incident to your employer’s supervisor or human resources manager. Per California statutes, employers must take immediate and effective practical steps to address and prevent workplace discrimination and harassment.
  • Bring a complaint to the relevant government body. There are different bodies under which you can file a claim, depending on whether you are pursuing your case at the federal or state level.
  • Bringing a Complaint to the EEOC. Generally, the initial step towards formally reporting sex or gender discrimination, depending on federal statutes, is to complain to the Equal Employment Opportunity Commission (EEOC). The EEOC will then investigate the complaint, and it bears great enforcement powers should it determine that violations occurred. Should the EEOC investigate your complaint and decide not to take any action, its officials will issue you a right-to-sue letter, giving you the go-ahead to take your sex or gender discrimination case in court by filing a lawsuit.
  • Bringing a Complaint to the CRD (Civil Rights Department). While federal and California bodies enforce gender and sex discrimination statutes, California agencies generally offer more protections. To seek protection under California laws against sex discrimination, you want to bring a complaint to the CRD. The CRD will assess the complaint and provide the mediation approach to permit your employer and you to resolve the case out of court. Note that the state and federal complaint processes are requisite before the agencies issue you a right-to-sue letter.

Suing The Employer in Court

If you and your employer cannot settle the dispute, but there is evidence of sex discrimination, you can sue your employer in civil court. Generally, you have up to three years from when the last incident of discrimination happened to file a civil suit in court.

Your lawyer will work with you and bring your case to the California Superior Court or the county where the discrimination happened. The lawsuit will mention your company and other parties (if any) that violated discrimination laws as the liable parties. The liable parties will then have the chance to respond to your lawsuit. The case might then be litigated or settled out of court with negotiations.

Recoverable Damages in a Sex or Gender Discrimination Case

If you pursue legal action and win, you might be entitled to recover damages. The kind of damages recoverable in a gender or sex discrimination claim or lawsuit depends on various factors. These include the following:

  • The period of discrimination
  • The level of discrimination
  • The harm or injury that resulted from the discrimination

Generally, if you prevail in their lawsuits or claims, you may recover monetary damages, equitable remedies, and punitive damages based on the facts of the case. They include the following:

  • Front pay. Damages for future lost wages
  • Back pay. Lost wages because of discrimination
  • Higher wages from a promotion, a bonus, or a raise
  • Benefits that the employer had denied you
  • Emotional distress. These damages compensate for the emotional distress the discrimination caused
  • Pain and suffering. These compensate for the suffering and pain the discrimination caused.
  • Punitive damages. These damages are designed to punish the employer for its discriminatory conduct.

The compensation amount recoverable is based on the case specifics. To comprehend your potential damages and rights, consult a skilled employment lawyer. You require evidence demonstrating discrimination and any resulting harm to win your claim or lawsuit. Damages vary depending on the severity of the harm caused. If your case is successful, the law allows you to recover your attorney’s fees and legal costs from the employer.

Remember, it is unlawful for an employer to retaliate against an employee who reports discrimination or engages in a discrimination investigation. If your employer retaliates against you for reporting gender discrimination, you can file a retaliation claim or lawsuit to pursue damages.

It is also essential to remember that the lawful process of addressing workplace gender and sex discrimination can be time-consuming and intricate. Thus, you want to seek representation and advice from an experienced workplace discrimination attorney who can help you safeguard your rights and navigate the process.

How a Workplace Discrimination Attorney Can Help

Hiring a workplace discrimination attorney is essential to navigating your case effectively. An attorney can provide valuable help in different ways:

  • Evidence collection and preparation. A sex discrimination lawyer will guide and assist you in gathering evidence to prove your claim, elevating your odds of winning your case.
  • Explaining your rights. An attorney can clarify your employment rights extensively within the context of gender discrimination laws.
  • Official complaints. An attorney can help you properly file a complaint or claim with the necessary government agency. In doing so, they will ensure you have properly documented your case.
  • Representation in court. If you opt for a lawsuit, an attorney can legally represent you in court, defending your interests and fighting for your employment rights. 

Find an Experienced Employment Law Attorney Near Me

Workplace sex discrimination manifests in different ways, and one worker’s situation might differ significantly from another’s. No individual case can be said to set an example for all the others, since each situation must be assessed independently based on the circumstances and facts. Thus, if you reasonably believe you face workplace gender discrimination, you want to consult an employment lawyer experienced in gender discrimination to help you interpret the situation.

At Empower Sexual Harassment Attorneys, we handle sex discrimination cases from San Diego much more often than we should. We will help you evaluate your case to determine whether you have a valid case to pursue. If you do, we will assist you in seeking the justice and damages you deserve while protecting your rights and advocating for your interests. Do not allow yourself to be the victim of workplace gender discrimination. Call us at 619-604-3027, and let us help you.