Gender discrimination ensues when a person or group is treated differently based on gender, also referred to as gender inequality. One group may be given preferential treatment such as higher pay instead of another group conducting the same tasks yet obtaining less compensation.
Is Gender Discrimination the Same as Sex Discrimination?
No, gender discrimination is based on a person’s behavior (e.g., manner of dressing, sexual preference, appearance), whereas sex discrimination is based on a person’s physical characteristics. Lawfully, both types are often included under one category of discrimination law.
How Is Gender Discrimination in the Workplace Detected?
More challenging to detect, evidence of gender discrimination often comes from:
- Victim testimony
- Witness testimony
- Human Resources statistics
- Reported statements and documents
Like other discrimination cases, the evidence compiled must demonstrate that the employer intentionally discriminated against the individual or individuals based on gender.
What Are Some Examples of Gender Inequality in the Workplace?
There are many circumstances where gender inequality can ensue, including:
- One group earning higher wages, getting more breaks, and obtaining less punishment
- Harassment aimed at one group
- Termination of employment based on gender
- One group obtaining preferential working environment treatment, e.g., more useful 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 collect documents, communications, witness statements, pay stubs, and any other proof supporting 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, restrict government and private entities from discrimination against the following for their sex or gender:
- Government and federal workers
- Employees working for businesses with 15 or more workers
What Is Reverse Discrimination?
Reverse discrimination happens when the group most often thought to receive preferential treatment is given the opposite. For example, Caucasian males are often considered the most privileged, so reverse discrimination occurs if this group is discriminated against.
What Is Sex Discrimination?
Similar to gender discrimination, this happens when an employer takes adverse action against a person or individuals based solely on their sex.
Typical 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 and the Pregnancy Discrimination Act are intended to protect against unfair treatment, violations have been happening 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 duties. The Act also covers fringe benefits and hourly or salaried pay rates. If differences in compensation happen, they must be based on other factors, such as seniority.
Pregnancy Discrimination Act
In addition to federal law outlawing the discrimination of women based on pregnancy, the Pregnancy Discrimination Act makes the following unlawful:
- Refusal to employ or promote a pregnant woman
- Refusal to employ or promote a woman based on her wish to have children
- Termination of a woman based on pregnancy or family planning decisions
- Reduction of hours or payment based on pregnancy
- Harassment based on pregnancy or family planning
- All other negative actions related to family planning or pregnancy
Additional legal protections for pregnant and working mothers include:
- The Family Medical Leave Act (FMLA) provides time off for pregnancy-related illnesses and maternity.
- The Americans with Disabilities Act (ADA) may instruct employers to make reasonable accommodations for pregnancy-related conditions.
- The Affordable Care Act requires employers to give nursing mothers reasonable break time and privacy.
When Is a Pay Disparity Valid?
Employers may have pay disparities under the Equal Pay Act so long as the difference isn’t based on sex or gender discrimination. The employer must be able to deliver 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 to show that 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 pay to correct a salary difference; they must raise the worker’s salary who is paid less.
When Is Harassment Prohibited Under Gender and Sex Discrimination Laws?
Sexual harassment includes unwanted sexual advances, conduct, and the verbal or physical action of a sexual nature. An employer may be responsible for supporting an overly sexual environment, permitting 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: Employers 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 of the following employment actions toward an employee.
If they are taken because the worker failed to meet a gender stereotype, the employer may be held liable:
- Failure to employ
- Failure to promote
- Placing an employee on probation or leave
- Pay decrease
- Transfer to an unpleasant job
What Is Wrongful Termination?
Unfair or wrongful termination happens when an employer illegally fires an employee from their job. Most workers are at-will employees, which means that their employer is lawfully entitled to end their employment at any time and for any reason.
What Is Sex Stereotype Discrimination?
Sex stereotype discrimination happens 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 example, 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 masculinely or behave like an alpha male, he too may have a claim.
Sexual Orientation vs. Sexual Stereotypes
Though federal law doesn’t expressly 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 busily accepting and pursuing these claims.
There is a fine line between sexual orientation and sexual stereotype discrimination. Since the latter is restricted, if an employee can establish that they were fired for “acting gay” instead of “being gay,” they are much more likely to be protected. State laws are transforming, 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 substantially impact the livelihood of those affected by discrimination. If you have been mistreated, 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.