In an employment setting, gender and sex discrimination refer to situations in which an employee or a group of employees is harassed or treated differently by an employer because of their sex or gender.
This discriminatory behavior may stem from various persons in the workplace, including supervisors, managers, human resources personnel, and even other co-workers.
Generally speaking, the umbrella term for which these types of discrimination fall under is known as, employment discrimination. Employment discrimination involves wrongful or different treatment of an employee based on certain characteristics.
For instance, it is illegal for an employer to discriminate against an employee due to their age, sex, religion, political affiliation, gender, and other traits. Additionally, it is also considered illegal to treat one group of workers differently or better based on such characteristics.
What are Examples of Gender and Sex Discrimination?
Gender and sex discrimination may involve various forms of conduct and mistreatment. This can include:
- Deciding not to hire someone based solely on their gender or sex;
- Paying one employee less than other employees who perform the same type of work due to their sex or gender;
- Denying an employee a raise, access to benefits, or a promotion because they are a certain race or identify with a particular gender;
- Harassing an individual worker or a group of workers due to their gender or sex;
- Firing or terminating an employee for reasons that depend on only their sex, and not on their performance or other factors; and
- Treating one group of workers better or differently than another group of workers based on sex or gender.
The above list is not exhaustive of the types of acts or reasons that may qualify as gender and sex discrimination. Although there is an overarching federal law (known as the Civil Rights Act of 1964 (“Title VII”), which protects against such acts, states may have varying definitions and requirements for claims involving employment discrimination under their own separate state laws.
Who is Protected from Gender and Sex Discrimination?
Both states and the federal government have various laws that prohibit governmental and private organizations from discriminating against people because of their sex or gender. Thus, these laws are what prevent employers from discriminating or harassing individuals on the basis of sex and gender.
In addition, all of these actions are generally regulated under the federal law mentioned above, namely, Title VII, along with various state laws and the Equal Pay Act. More specifically, all of these generally apply to the following:
- All government and federal workers;
- Any employees working for employers that have 15 or more employees;
- Both the private and public sectors; and
- Any gender.
What is Required by the “Equal Pay for Equal Work” Act?
The Equal Pay Act of 1963 is a law that requires employers to pay employees doing the same job equally, regardless of their sex. To support a claim under the Equal Pay Act, an employee must show that both genders:
- Work in the same place;
- Do the same job; and
- Are not being paid equally, despite all of the above.
If an employer is able to provide a legitimate reason for the pay difference, then it may be difficult for that employee to establish a claim based on gender or sex discrimination.
Do Gender and Sex Discrimination Laws Cover Harassment?
Harassment that takes place in an employment setting may include acts, such as unwanted sexual advances, sexual conduct, or other verbal or physical actions that are considered sexual in nature. Thus, an employer may be responsible for harassment if co-workers or supervisors maintain a work environment that is overly sexual or offensive to workers.
Additionally, an employer, co-worker, or supervisor also cannot harass an employee simply because they do not conform to a “typical” gender stereotype.
In actuality, the employer is legally required to keep the employment environment free from sexual harassment and other related issues. As such, an employer can be held liable even when a supervisor or co-worker is the true harasser, however, this may depend on the exact circumstances of the situation.
Other conduct in regard to employment that is prohibited by gender and sex discrimination laws include:
- Retaliation: In general, an employer cannot partake in adverse or negative employment actions against an employee based on the reason that they filed a gender or sex discrimination claim against them, or openly opposed a discriminatory policy. This is sometimes referred to as “whistleblowing.”
- For instance, an employer is not legally permitted to fire an employee who has filed a discrimination claim against them, even if that claim turns out to be false or untrue under state laws. The law gives every employee a right to file such claims.
- Employment Advertisements: An employer may not limit a job opportunity or posting to only one sex without a legitimate business purpose. (e.g., female only strip clubs).
- Other Employment-Related Activities: As discussed above, employment activities like hiring and firing a worker are not allowed on the basis of gender and sex.
What Do I Need to Do to File a Gender and Sex Discrimination Claim?
If an employee believes that their employer has acted in a way that might be considered gender or sex discrimination, then they will first need to file a claim with the Equal Employment Opportunity Commission (“EEOC”). The EEOC is an agency that handles and processes discrimination claims relating to the workplace.
After a complaint is filed with the EEOC, the EEOC will send someone out to investigate the matter in order to determine if a violation has occurred. If they find that there was in fact a violation, then they will provide an appropriate remedy to resolve the situation.
For instance, the EEOC may require an employer to re-hire a person who was wrongfully terminated because of their sex or gender. They may also mandate that the employer adjust their work behavior policies.
On the other hand, if the resolution provided by the EEOC is not sufficient to remedy the violation at hand, the employee may be allowed to file a lawsuit against their employer. It should be noted, however, that an employee usually needs to file a claim with the EEOC first before they can file a private lawsuit.
The discriminated employee can file a private lawsuit after the EEOC has finished their investigation and chooses not to pursue legal action against the employer. The EEOC will then send the employee a “Right to Sue Letter” which will allow them to follow their private legal claims.
Do I Need to Hire an Attorney for Help with Gender and Sex Discrimination Claims?
It is generally difficult to pursue a gender or sex discrimination claim against an employer without the help of a discrimination lawyer. The reason this may be is due to the specific requirements that must be met in order to prove the employer’s intention to discriminate.
Additionally, many states as well as the federal government have certain procedures an employee must follow to file a gender or sex discrimination claim. These procedures can be quite confusing without an attorney.
Finally, if you are an employer who is being sued for gender or sex discrimination, it may be in your best interest to hire an experienced discrimination lawyer who can help you through this challenging process.