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Sexual Discrimination Law

Notice: Please note that this is only an introduction to sexual discrimination law. If you believe yourself to be a victim of gender discrimination, please consult with an attorney to have your claim fully evaluated.

If you believe you have been subjected to gender discrimination, you may be able to secure relief under state or federal law. Federal law remedies for discrimination are based upon Title VII of the Civil Rights Act of 1964 [FN1], which applies to employers with fifteen or more employees. People who work for smaller employers are usually protected by similar state anti-sex discrimination laws.

Discrimination may occur at any stage of employment, including the initial hiring decision, promotions, layoffs or "RIF's", compensation, benefits, job assignments, training, or termination of employment, or may be manifested through racist comments or harassment at work. Discrimination may be based upon any immutable racial characteristic, including skin, eye or hair color, and certain facial features. A discrimination claim may be based upon:

  • Disparate Treatment - The employee is subject to discrimination because of race, ethnicity, skin color, or a similar characteristic.

  • Disparate Impact - Although the employer may not intend to discriminate, the employer's policies adversely affect employees on the basis of race, ethnicity, skin color, or a similar characteristic.

One of the most common gender-related problems in the workplace is sexual harassment. For more information on sexual harassment, please see this associated article.

It is not necessary for discriminatory conduct to be sexual in nature for it to be prohibited as sexual discrimination. Gender-based discrimination or harassment involves conduct which would not have occurred but for the gender of the victim. Comments about how employees of a particular gender are not suited for particular jobs, or a pattern of statements about employee conduct such as "She probably has PMS", may support an action for gender discrimination. A pattern of actually excluding people of a certain gender from positions for which they are qualified on the basis of gender (such as refusing to consider a man for a child care position on the basis of gender alone, refusing to consider women for sales positions, or only hiring women for receptionist positions) may also support an action for sexual discrimination.

Under a typical anti-discrimination law, the plaintiff must prove the following:

  • The plaintiff was a member of a protected class;

  • The plaintiff was qualified for the job for which he or she applied, or that he or she was meeting the employer's legitimate job expectations at the time of discipline or termination of employment;

  • The plaintiff was not hired or was not promoted, and that somebody outside of the protected class was instead hired or promoted, or the plaintiff was fired and replaced by somebody outside of the protected class;

  • The circumstances of the employer's hiring, promotion, or termination decision give rise to a reasonable inference of discrimination;

  • That the employer's nondiscriminatory explanation for its actions was a mere pretext for racial discrimination - that is, it is a false explanation meant to make its discriminatory action appear to be legitimate.

Title VII also protects employees who file sexual discrimination charges, who participating in an investigation or litigation associated with a complaint of gender discrimination, or who testifying in related proceedings. State laws typically have similar provisions. It is possible for a complainant to lose a gender discrimination claim, but still win a judgment against an employer on the basis of retaliation.

Certain employer conduct raises questions about their intentions, and may be suggestive of discriminatory motives. For example, if an employer makes pre-employment inquiries about an employee's gender, it raises the concern that the information will be used in the hiring decision. If an employer makes improper pre-employment inquiries to a job candidate, such as "are you married" or "do you intend to have children", it suggests that the employer may be considering that irrelevant information as part of a hiring decision. Where an employer makes such improper inquiries, and an analysis of their hiring patterns shows that they only hired married applicants or that they never hire women who indicate an intention to have children, the pattern may stand as evidence of discriminatory hiring practices.

Ordinarily before you can file a suit based upon gender discrimination, you must first file a complaint about the conduct with an administrative agency. For a federal complaint, the complaint would first be filed with the Equal Employment Opportunity Commission (EEOC). There are also state and local agencies, to which complaints may be made under state law. Sometimes the agency will take your case, and prosecute your discrimiantion on your behalf. If the agency does not act within a specific timeframe, or declines to act on your behalf, you may file a private lawsuit.

Footnotes

  1. Under Title VII, employers may not intentionally use race, skin color, age, gender, religious beliefs, or national origin as the basis for decisions relating to almost any aspect of the employment relationship, including hiring, promotions, dismissals, raises, employee benefits, leaves of absense, or assignment of work.