Sexual discrimination involves treating an employee less favorably than other employees, due to the employee's sex.
Sex-based discrimination may occur at any stage of employment, from the initial hiring decision, through promotions, awards of compensation, benefits, training opportunities and job assignments, through layoffs and termination of employment. Discrimination may be manifested through sexually inappropriate comments or through sex-based harassment at work.
If you believe you have been subjected to sex- or gender-based 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 1964,1 a law that applies to employers with fifteen or more employees. Employees of smaller employers are usually protected by similar state anti-sex discrimination laws. Some states offer broader protections for gender-based discrimination than is available through federal law.
A sex-based discrimination claim may be based upon:
Disparate Treatment - The employee is subject to discrimination based on sex or gender, including unequal pay, sexual harassment, and pregnancy discrimination.
Disparate Impact - Although the employer may not intend to discriminate, the employer's policies adversely affect employees on the basis of the employee's sex.
One of the most common gender-related problems in the workplace is sexual harassment, a category of actions that may include unwanted sexual advances, requests for sexual favors, physical or verbal harassment, or a combination thereof.
It is not necessary for discriminatory conduct to be sexual in nature for it to be prohibited as sexual discrimination. It is enough that the different treatment would not have occurred but for the gender of the victim. For example:
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.
Certain employer conduct may raise questions about the employer's 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.
If 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.
In a typical lawsuit alleging sexual discrimination, 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 differential treatment, discipline or termination of employment;
Either that the plaintiff was not hired or was not promoted, and that somebody outside of the protected class was instead hired or promoted, or that the plaintiff was fired and replaced by somebody outside of the protected class;
The circumstances of the employer's hiring, promotion, or termination decision gives rise to a reasonable inference of sex discrimination;
The employer's nondiscriminatory explanation for its actions is a mere pretext for sex discrimination - that is, that the explanation is a false, and is offered to make an unlawful discriminatory action appear to be legitimate.
Title VII and typical state anti-discrimination laws also protect employees who file sexual discrimination charges, who participate in an investigation or litigation associated with a complaint of gender discrimination, or who testify in related proceedings. It is possible for an employee to lose a gender discrimination claim, but still win a judgment against an employer on the basis of retaliation due to the employer's response to the employee's report or the subsequent investigation.
Before you may file a lawsuit based upon an allegation of gender discrimination, you must ordinarily 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. If the state does not have an equal employment agency, the report will normally be made to the EEOC.
Sometimes the agency will accept your case, and prosecute your discrimination claim on your behalf. If the agency does not act within a specific timeframe, or declines to act on your behalf, it will issue a "right to sue" letter that authorizes you to file a private lawsuit.
If you believe that you are experiencing sex discrimination or sexual harassment at work, it makes sense to consult an employment lawyer who represents employees in their claims against employers. The lawyer will review your case and may advise you about how to respond to problems at work, as well as how to document your case and preserve evidence of improper conduct. The lawyer can assist with an EEOC complaint, and also with any litigation that might follow the issuance of a right to sue letter.
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 absence, or assignment of work.