Discrimination based on gender occurs when an employer treats an employee of one gender differently than employees or another. The different treatment may be intentional. The different treatment may unintentional, but have the effect of discriminating against a particular gender.
The discrimination may take the form of sexual harassment. Sexual harassment consists of hostile work environment harassment. Sexual harassment also consists of quid pro quo harassment.
What is Sexual Harassment?
Under a federal law known as Title VII of the CIvil Rights Act of 1964, and many state laws, hostile work environments and quid pro quo sexual harassment are illegal. Hostile work environment harassment occurs when an employee is subjected to conduct in the form of demeaning jokes, slurs, lewd remarks, or threats.
The unwelcome conduct must be severe or pervasive to give rise to a hostile work environment. The conduct must be severe or pervasive enough to change the terms, conditions, or expectations of a comfortable workplace for an employee.
If the harasser is a supervisor, and the victim is subject to an adverse (negative employment action based on gender, then the employer is liable for the supervisor’s harassment. If the hostile work environment does not result in an adverse employment action (such as termination or demotion), then the employer is still liable.
The employer may assert a defense. The employer must prove it took steps to correct and prevent harassment. The employer must prove the victim failed to make use of these measures.
Quid pro quo sexual harassment occurs when a supervisor or employer or supervisor requests or demands a sexual relationship or sexual favors. If the employee does not submit to the demands, then the employer or supervisor threatens or takes a negative job action. If the employee submits to the demands, then the employee is promised or receives a raise, promotion, or similar benefit.
A plaintiff can sue the employer for quid pro quo conduct sexual harassment, regardless of whether the plaintiff submitted to the demand. For the plaintiff to prevail in court, the plaintiff must demonstrate that, because of their gender, they were subject to an unwelcome request or demand, that was sexual in nature.
Plaintiff must also show particular job benefits were conditioned on acceptance of the harasser’s demands, or that employment decisions were based on acceptance or rejection of the demands. Plaintiff must demonstrate harm. The conduct of the harasser must play a substantial part in causing that harm.
If the harasser is a supervisor, and the plaintiff is subject to an adverse action, the employer is liable for the quid pro quo harassment. If the quid pro quo harassment is not accompanied by an adverse employment action, the employer is still liable.
The employer may escape liability, by asserting, as a defense, that it exercised due care to correct and prevent harassment. The employer must then assert the plaintiff failed to avail themselves of these measures.
What is Disparate Impact Gender Discrimination?
Disparate impact, or unintentional, gender discrimination occurs when an employee has policies, procedures, and terms of employment that appear neutral (not, by their language, discriminating against one gender).
However, the policies or procedures have the effect of one gender being more adversely affected than another. For example, an employer imposing a “lifting” requirement for a position, where lifting is not required as part of the job, may have the effect of one gender being hired at a lower rate than another.
What is Disparate Treatment Gender Discrimination?
Disparate treatment discrimination is intentional discrimination. Here, an employer discriminates in the terms, conditions, and privileges of employment, on the basis of gender. To prove discrimination, a plaintiff must establish they were treated differently than a similarly situated employee. A similarly situated employee is a person of a different gender who has the same or similar job title or duties).
The plaintiff must show the different treatment constituted an adverse action. Then, the employer must assert a non-discriminatory reason for the different treatment. If an employer cannot do this, then the plaintiff will prevail.
Sometimes an employer asserts a non-discriminatory reason that is false. If the reason stated is false, then the plaintiff must show the stated reason was a “pretext” and that the “real” reason was discriminatory. Once the plaintiff has showed this, plaintiff has prevailed on their gender discrimination claim.
Do I Need the Help of an Lawyer With a Gender Discrimination Claim?
If you believe you are the victim of gender discrimination in the workplace, then you should contact an employment lawyer. An experienced employment lawyer near you can review the facts of your case. The lawyer can advise you as to your rights and options. The lawyer can represent you at hearings and in court.