Gender Discrimination

One of the most commonly contested terms is “gender.” Many employers do not recognize that gender and sex are two different concepts. Sex is a biological definition that is often strictly limited to male or female, while gender is the expression that an individual can choose to elicit. Individuals may express different genders from their sexes, which can cause employers to be discriminatory.

Federal law considers gender discrimination to be prejudiced action or unfair treatment based on an individual’s gender. That is, if you are a woman, you can be targeted at menstruating, wearing skirts, wearing makeup and nail polish, and more. Title VII of the Civil Rights Act of 1964 dictates that discrimination against individuals because of gender (as well as sex) is illegal.

The Equal Employment Opportunity Commission (EEOC) enforces these laws and carries out investigations at a Federal level.

California laws are known for being much more inclusive and protective of certain classes of individuals, especially with regards to sex and gender. In California, it is illegal to be discriminated against on the basis of sex, gender, gender identity, gender expression, sexual orientation, and more.

The law specifically states (Cal. Gov’t Code § 12940, title 2. Government of the State of California, Division 3. Executive Department, Part 2.8. Department of Fair Employment and Housing, Chapter 6. Discrimination Prohibited, Article 1. Unlawful Practices):

(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.

These laws are enforced by the Department of Fair Employment and Housing (DFEH). They are essentially covered under the Fair Employment and Housing Act (FEHA).

It can be difficult to determine if you were discriminated against at work due to your gender. It is extremely uncommon for an employer or coworker to outright state that you are being treated a certain way because of your gender; that would be a fairly straightforward way of determining you have been discriminated against.

In lieu of that, you must be more attentive. In order to identify the cause, you must be able to read between the lines of certain actions, understand subtext and underlying meanings, observe other employees and how they are treated, and compare and contrast your situation with that of another person who shares your qualities.

Some examples of gender discrimination include:

• Preventing breast feeding
• Disallowing you from wearing clothing that does not conform to your employer's idea off your gender (for example, wearing dresses or high heels if you identify as a woman)
• Being forced t use the opposite gender's restrooms

These are more specific situations that can arise, but the more overt examples include sexual harassment, unequal pay, wrongful termination, denial of maternity or paternity leave, restriction of work abilities, decreased hours, reduced wages, denial of promotions or benefits, and more.

At a workplace, your employer is liable for gender discrimination, especially if a superior at your job or a coworker acted out against you. Your employer may not be able to be held liable if a customer discriminates against you because of your gender.

Therefore, if a manager, supervisor, fellow worker, an employee from another branch, or other person employed at your company discriminates against you because of your gender, your employer can be held liable for the ensuing damages or losses.

If you have been discriminated against at your job, your first order of business should be to go to Human Resources and talk to one of the representatives there. You can file a complaint or alert the department to the discrimination. In some cases, this results in a conversation or meeting with the responsible party or the individual who is carrying out the discrimination, and a request to stop is made. You may not even be present at this meeting, if it occurs.

However, you should bear in mind that the HR Department is not in place to protect employees; it is rather established so that the company can be protected from any backlash from the employees because of the way they were treated. Therefore, many HR representatives will do all they can to sweep matters under the rug or prove you wrong with your claims. After making a complaint, be sure to ask for a confirmation, whether as an email or a printout, to add to your evidence pile.

You should document the discrimination as best you can. You may need to add notes to a journal that specifically outline and summarize the treatment, take pictures or videos of any harassment, record audio of hateful speech or derogatory remark about your gender, and more. If possible, you should try to get security footage or surveillance videos of the discrimination, but this may be extremely difficult.

It will also benefit your claim to have testimonies and statements from people who witnessed the discrimination happen. You may need to interview coworkers or customers, or reach out to former employees. These former employees can also provide their own stories and experiences, which could establish a pattern of behavior if the company has discriminated on numerous occasions.

After you have gotten as much evidence as you could compile, you should then organize everything and send it to either the EEOC or the DFEH. Because there is a state governing body (DFEH) that handles employment claims, you would send it to the DFEH first. If the DFEH finds that you have ample evidence against your employer, it will issue you a right-to-sue letter. This letter can then be presented to your employer and you can move forward with a claim.

Bear in mind that you do not have an unlimited time to sue. You only have 300 days from the date of the discrimination to file a claim according to the State, unless you were filing a claim against a government entity – in which case you only have 90 days. It is not uncommon for many employment claims to be lost or voided because the plaintiff does not acknowledge the statute of limitations or realize that there is a time limit in which to sue.

It is also highly recommended that you seek out the services of a skilled employment law attorney who can answer your questions, give you legal advice, oversee your case, and potentially represent you in a court of law. Our attorneys at Employment Attorney Group are fully experienced in such litigation tactics and can provide you with any of the help that you need.

If you have suffered gender discrimination by your employer, you can receive numerous types of compensation from the lawsuit. You could reasonably win back pay and future wages from the time you could not go to work if you had to take leave or if you were terminated. You may also be entitled to missed benefits, promotions, and other forms of income. Pain and suffering causes may also be awarded, which are emotional damages like PTSD, anxiety, fear, and more. These are usually the result of a traumatic event.

Additionally, you may be able to secure punitive damages from your claim. These are additional forms of monetary compensation that are awarded to plaintiffs who were victims of gross negligence or an intent to be harmed, but in the case of employment, it’s essentially when a life has been ruined or when the employer has deliberately acted with prejudice or hateful discrimination. These damages are very hard to win, though, and are often viewed as unnecessary or harsh by judges and juries.