Gender discrimination occurs when a person or group is treated differently based on their gender, also referred to as gender inequality. One group may be given preferential treatment such as higher pay, as opposed to another group performing the same tasks yet receiving less compensation.
Is Gender Discrimination the Same as Sex Discrimination?
No, gender discrimination is based more upon a person’s behavior (e.g., manner of dressing, sexual preference, appearance), whereas sex discrimination is based on a person’s physical characteristics. Legally, both types are often included under one category of discrimination law.
How Is Gender Discrimination in the Workplace Detected?
More difficult to detect, evidence of gender discrimination often comes from:
- Victim testimony
- Witness testimony
- Human Resources statistics
- Written statements and documents
Similar to other discrimination cases, the evidence compiled must show that the employer purposely discriminated against the person or persons based on gender.
What Are Some Examples of Gender Inequality in the Workplace?
There are many situations where gender inequality can occur, including:
- One group earning higher wages, getting more breaks, and receiving less punishment
- Harassment aimed at one group
- Termination of employment based on gender
- One group receiving preferential working environment treatment, e.g., better tools, equipment, or location
What If I Wish to Report a Gender Inequality Claim in the Workplace?
Before you report a claim for gender inequality, it is recommended that you contact an attorney. You should also gather documents, communications, witness statements, pay stubs, and any other evidence in support of your claim.
Who Is Protected from Gender and Sex Discrimination?
State and federal laws, including the Civil Rights Act of 1963, and the Equal Pay Act prohibit government and private entities from discrimination against the following for their sex or gender:
- Government and federal employees
- Employees working for businesses with 15 or more employees
What Is Reverse Discrimination?
Reverse discrimination occurs when the group most often thought to receive preferential treatment, is actually given the opposite. For instance, Caucasian males are often considered the most privileged, so if this group is discriminated against for being just that, then reverse discrimination has taken place.
What Is Sex Discrimination?
Similar to gender discrimination, this occurs when an employer takes adverse action against a person or persons based solely on their sex. Common examples include:
- Hiring a less-qualified male applicant over a qualified female candidate
- Paying women less who are in the same role and seniority as male counterparts
- Creating a hostile work environment for one sex
- Family planning penalties
- Suggesting sexual favors for career advancement
Though women are most commonly affected by sex discrimination, men are also protected under the Civil Rights Act and the Equal Pay Act. Though these Acts, as well as the Pregnancy Discrimination Act are intended to protect against unfair treatment, violations have been occurring for years.
Equal Pay for Equal Work Act
The Equal Pay Act of 1963 requires equal pay for work involving equal skill, effort, working conditions, and responsibilities. The Act also covers fringe benefits in addition to hourly or salaried pay rates. If differences in compensation occur, they must be based on other factors, such as seniority.
Pregnancy Discrimination Act
In addition to federal law prohibiting the discrimination of women based on pregnancy, the Pregnancy Discrimination Act makes the following illegal:
- Refusal to hire or promote a pregnant woman
- Refusal to hire or promote a woman based on her desire to have children
- Termination of a woman based on pregnancy or family planning decisions
- Reduction of hours and/or compensation based on pregnancy
- Harassment based on pregnancy or family planning
- All other adverse actions related to family planning or pregnancy
Additional legal protections for pregnant and working mothers includes:
- The Family Medical Leave Act (FMLA) provides time-off for pregnancy-related illness and maternity.
- The Americans with Disabilities Act (ADA) may require employers to make reasonable accommodations for pregnancy-related conditions.
- The Affordable Care Act requires employers to give reasonable break time and privacy for nursing mothers.
When Is a Pay Disparity Valid?
Under the Equal Pay Act, employers may have pay disparities so long as the difference isn’t based on sex or gender discrimination. The employer must be able to provide the following proof of valid pay disparity:
- Bona Fide Seniority
- Bona Fide Merit
- Bona Fide Occupational Qualification (BFOQ)
- Pay based on earnings as measured by quality or quantity of production
Similar Working Conditions
Though inside versus outside working conditions and evening versus day shifts may not be substantially different, employers may use this as a defense if they can establish that a pay differences in these areas are typical of industry standards.
Can an Employer Lower Another Wage to Avoid Wage Discrimination?
An employer cannot reduce another employee’s wage to correct a pay difference; they must raise the employee’s salary who is paid less.
When Is Harassment Prohibited Under Gender and Sex Discrimination Laws?
Sexual harassment includes unwanted sexual advances, conduct, and verbal or physical action of a sexual nature. An employer may be liable for maintaining an overly sexual environment, allowing supervisors or co-workers to harass others, or harassing you for not conforming to gender stereotypes.
Other employment activities prohibited by gender and sex discrimination laws include:
- Retaliation - Employer cannot take action against you for filing a discrimination claim
- Employment advertisements - Employer cannot limit a job opening to one sex without a legitimate reason
- Hiring or firing based on gender and sex
What Qualifies as an “Employment Action?”
An employer can take any one of the following employment actions toward an employee, and if they are taken because the employee failed to meet a gender stereotype, the employer may be held liable:
- Failure to hire
- Failure to promote
- Placing employee on probation or leave
- Pay reduction
- Transfer to an undesirable job
What Is Sex Stereotype Discrimination?
Sex stereotype discrimination occurs when an employer takes an employment action against someone based on the person’s non-conformance with a gender stereotype.
Both men and women are protected from sex discrimination under Title VII of the Civil Rights Act of 1964. For instance, if a woman is denied a raise for not complying with her firm’s request to dress less masculine, wear more makeup, and behave more passively, she may have a claim. The same goes for men; if a man doesn’t comply with being told to dress more masculine or behave like an alpha male, he too may have a claim.
Sexual Orientation vs. Sexual Stereotypes
Though federal law doesn’t specifically protect sexual orientation from discrimination, the Equal Employment Opportunity Commission (EEOC) filed its first cases against sexual orientation discrimination in 2016. As of now, it is up to the courts (which more than half of the states have laws against sexual orientation discrimination), and the EEOC is actively accepting and pursuing these claims.
There is a fine line between sexual orientation and sexual stereotype discrimination. Since the latter is prohibited, if an employee can prove for instance, that he was fired for “acting gay” as opposed to “being gay” then he is much more likely to be protected. State laws are changing, and it is best to consult an attorney for any claims related to discrimination.
Do I Need a Lawyer?
Sex and gender inequality in the workplace is a complex subject that can have a substantial impact on the livelihood of those affected by discrimination. If you have been treated unfairly, contact an employment discrimination lawyer immediately. An attorney can build your case, help you decide your best course of action, and represent your best interests in court.