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Gender Discrimination

Gender discrimination is a reality in many industries, even in a world where women have proven their mettle. Gender discrimination in the workplace can take many forms, including refusal to hire or promote, unequal pay, unfair treatment in socio-business relationships, and using reductions in force to reduce the number of female employees who become pregnant or prefer to work part time in order to balance work and family obligations. Since gender discrimination at work is often very subtle, it may be hard to prove. As such, it tends to require significant circumstantial and indirect evidence to convince the jury. If you feel that your employer has discriminated against you based on your gender, a lawyer who specializes in gender discrimination in the workplace can help you navigate the process.

What is Gender Discrimination?

Gender discrimination is illegal when you are treated differently or less favorably because of your gender than other people within the organization who are associated with the opposite gender. It can also involve being treated differently due to gender stereotypes, or when a person does not conform to traditional notions of masculinity or femininity. Furthermore, sex discrimination includes physical and verbal harassment of a sexual nature, such as requests for sexual favors and other unwelcome sexual advances.

Gender discrimination becomes illegal when it involves treatment that contravenes the terms and conditions of employment.

The California Fair Employment and Housing Act prohibits employers from discriminating against employees because of:

  • gender (gender expression, gender identification, sexual orientation);
  • marital status;
  • race, ancestry, color, national identity;
  • physical or mental health (disability, genetic information);
  • military or veteran status.

It is illegal to discriminate against people who are predisposed to hereditary  genetic disease and to test employees for such genetic characteristics. While sex discrimination and gender discrimination are used interchangeably, you should understand the notable difference:

  • Sex refers to an individual's biological identity, which is female or male.
  • Gender refers to the socially constructed feminine or masculine characteristics attributes and behaviors society associates with the individual and that with which he or she identifies.

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal law in companies with fifteen or more employees. Individuals can file claims via the organization's Digital Charge System on the EEOC website. An individual who has filed discrimination charges may check on the status online.

Examples of Gender Discrimination

It's not always easy to see examples of gender discrimination in the workplace, but common practices could include:

  • hiring, promoting or laying off someone because of his or her gender;
  • not hiring, promoting or laying off someone because of his or her gender;
  • withholding work opportunities from homosexual or transsexual individuals;
  • a female employee who works at the company for years, just to find out a newly hired male in the same position and with the same qualifications and duties earns more than her;
  • a female employee who receives reduction in pay after having a baby and is therefore unable to put in the same amount of overtime, yet, however, there are no penalties for a male employee who cuts back on overtime for personal reasons;
  • female employees may not add their husbands to their health insurance from the company, because the company assumes that he has his own benefits, but male workers are allowed to add their wives.

In addition to the above scenarios, there are specific examples that illustration gender discrimination against women. These are examples of the glass ceiling:

  • Refusal to promote a fully qualified worker just because she is a woman;
  • Paying a male employee more than a female employee with the exact qualifications, responsibilities, and skills;
  • Unfair treatment in terms of socio-business relations, for example, allowing men to go golfing or taking clients to lunch;
  • Firing female employees who plan on starting families or who take maternity leave.

It can be difficult to prove gender discrimination in court, as hard evidence is rarely found. Most often, cases are won when the employee's circumstantial evidence is stronger than the employer's denials.

Dealing With Gender Discrimination in the Workplace

An employee can take several legal steps to address gender discrimination at work with the aim of ending the discrimination and receiving compensation for the suffering endured. The law also prohibits employers from retaliating against employees who report gender discrimination in the workplace, for opposing the employer's discrimination, and for participating in legal actions and investigations related to discrimination.

The following steps are advised:

  • Make notes of what occurred, including dates, names, places, times, and make a copy that you keep separately in a safe place.Keep a paper trail throughout the process.
  • Submit a polite written complaint to your employer's management or HR department. If nothing is done to resolve the issue, lodge a claim of gender discrimination with one of the government agencies.
  • Consider involving your union, if you belong to one.
  • Request access to your personnel file. Employees in California have a right to a copy of all employment-related documents that have been signed by them.
  • If the company demoted or laid you off, you can consult with a private employment law firm about your options.
  • After speaking to a lawyer, you may file an administrative charge with the Department of Fair Employment and Housing or with the Equal Employment Opportunity Commission (EEOC) in a process known as administrative exhaustion. The DFEH and EEOC have a work-sharing agreement. That means that you need not file separate claims with both, but you must indicate that you want to cross-file your claim. Your lawyer will usually acquire a right-to-sue letter on your behalf from the DFEH.
  • Your lawyer will file a lawsuit in state or federal court if the charge is not resolved in due time.

It is crucial to find an employment lawyer who is a specialist in sex or gender discrimination laws.

Strict time limits apply to the filing of employment discrimination charges with the EEOC or DFEH. Be sure to cross-file with whichever agency you choose to preserve your right to file charges under both laws. The statute of limitations for employment discrimination with the Department of Fair Employment and Housing is one year from the date on which the discrimination took place, or 300 days for filing with the Equal Employment Opportunity Commission (EEOC).

In many cases, workers have additional legal claims and shorter deadlines may apply to those. It's important to speak to an experienced employment lawyer with experience in workplace gender discrimination as soon as possible to find out whether your case has merit and about your chances of success.

When you file charges with the EEOC, they will provide you with a copy of the charge containing a charge number. They will send a notice in addition to a copy of the charges to your employer and offer one various options, including:

    1. mediation for the employer and employee;

    2. request a written response to the charge from the employer, along with answers to claim-specific questions;

    3. if the charge is not filed timeously or in the event that the EEOC has no jurisdiction, the claim will be dismissed.

In the case of the second option, an investigator will be assigned to your charges. The investigator will investigate your case, and possibly gather documents and interview witnesses. There is no specific time frame for this investigation, as all evidence must be gathered before it can be analyzed. A typical investigation can take approximately six months, whereas mediation can easily be settled in three months. On conclusion of the investigation, they will inform you and your employer of the outcome of the investigation. If they find that no discrimination occurred, they may send you a 'Notice of Right to Sue' or 'Dismissal and Notice of Rights'. You need this document to file a charge based on federal law, as it has to be filed with the courts within ninety days of receipt of the document.

You can also request a dismissal or right-to-sue notice from the DFEH in order to proceed to court. You have to file a state discrimination claim within one year of your DFEH dismissal. Speak to an attorney without delay once you have received the letter from one of these agencies so as to avoid the expiry of the statute of limitations.

You may then file a lawsuit or engage in voluntary settlement proceedings, or pursue a settlement in open court with the help of your lawyer.

Gender Discrimination Laws

Employment laws in California aim for employers to treat men and women as equals, but male bias and glass ceilings still predominate in many workplaces. However, it is illegal to demote or dismiss a person because of her gender.

When someone becomes a victim of gender discrimination in the workplace, it will probably affect her self-esteem and call fear and frustration, which will decrease her productivity. It will probably result in tensions between the employee and the employer, which could result in her being isolated from the rest of the team.

The state of California Fair Employment and Housing Act applies to employment agencies, labor organizations and public and private employers alike who apply five or more individuals. These organizations are prohibited from discriminating against job applicants and employees. This state law protects job applicants, volunteers, unpaid interns, contractors and employees. California Government Code Section 12940 contains the full statute of the state's most powerful discrimination law.

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers with fifteen or more employees from discrimination against a variety of protected classes, "It shall be an unlawful employment practice for an employer... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." This law applies to government organizations (local, state and federal), as well as labor organizations, employment agencies, and public and private educational institutions and forbids them from exercising gender discrimination in regard with:

  • hiring and laying off
  • advertising jobs
  • compensation and fringe benefits
  • apprenticeship and training programs
  • recalls, promotions and transfers
  • unfair testing of male and female workers
  • discriminating employment terms and conditions.

The Equal Pay Act of 1963 is a federal law aimed at wage discrimination and expands on Title VII of the Civil Rights Act.

Pursuing a Gender Discrimination Claim in California Court

If the EEOC or DFEH successfully resolves your case, you may not need to file a lawsuit. They may also require that you sign an agreement to release your legal claims. However, if they fail to resolve your case, it may be necessary to pursue the claim in court.

Federal employment discrimination cases must first go to the EEOC, who will have to dismiss it before it can to court. This process is known as exhaustion of administrative remedy. You can also only proceed with a lawsuit if your state discrimination case has been dismissed by the DFEH.

Damages in a Gender Discrimination Case in California

There is no cap or limit on compensatory or punitive damages in California law, but limits do apply to federal law. Compensatory damages include compensation for emotional pain and suffering, as well as punitive damages are aimed at punishing the employer. Employment attorneys in California usually file gender discrimination in the workplace cases in state court and under state law because California state law tends to be much more favorable in terms of:

  • special employer defenses
  • burden of proof
  • attorney fees
  • and recoverable damages.

However it is possible to bring charges under federal or state court and under either law.

Help With Gender Discrimination

Do you feel that you have been a victim of gender discrimination in the workplace? It is important to obtain the professional guidance of an experienced employment attorney. Call 800-905-1856 right now to schedule an initial case assessment consultation with one of our professional employment attorneys. You deserve the right to fair treatment in the workplace and equal income whether you are male or female. Let us help you fight for your rights.

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