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Gender (Sex) Discrimination Basics

Despite recent progress made regarding gender equality, sex-based discrimination continues to plague work places across the country. This type of discrimination occurs when an employee is treated differently than others because of their gender. Gender discrimination can affect everything from hiring decisions and promotions to wage increases.

Sex discrimination does more than simply set up an unfair structure. If one person is expected to complete a heavy workload at a fraction of the wage, this can lead to financial struggles, increased stress at the workplace, and poor performance. It can also lead to feelings of inadequacy and depression. In other cases, individuals may feel angry and upset, which can quickly translate to a very toxic working situation.

Those who believe they may have suffered from this type of discrimination in the workplace may be confused about their next steps. Some people do not know that this type of action by your employer is illegal. Others may not know how to pursue a court action for this type of behavior. Spending some time learning about the basics of gender-based discrimination in California is the perfect place to start.

What is the Equal Pay Act?

The Equal Pay Act was a piece of federal legislation enacted in 1963, guaranteeing that men and women who perform equal work within the same work place must receive equal pay and benefits. Specifically, it states that employers cannot pay their staff differing wages except where it is based on the following:

  • A seniority system
  • A commission system, where earnings are solely based on quantity or quality of your work
  • A merit-based system
  • Any other factor aside from sex, such as experience, training, or level of education

The onus is on the employer to prove that the pay structure is fair. In some cases, they may have to go so far as to provide evidence that wages paid are:

  • Related to the job, considering the duties and responsibilities of the person in that position
  • Not arrived at as a result of any sex-based comparison
  • In keeping with norms for the industry
  • In keeping with norms for companies of your size

Despite the fact that it has been in place for over 50 years, many employers still regularly engage in this type of practice at work. More often than not, this results in women receiving far lower wages for the same work and being turned down for promotions and raises at higher rates. Though, there are rare cases where the opposite is true.

To get around this legislation, some unscrupulous employers make a lot of their hiring decisions in secret. They may also choose to hide the salary from public postings, preferring to discuss details in person. This gives them the chance to offer one gender or group a higher starting wage than they would offer to other applicants. Since the job market is so competitive, many employees feel they have to accept the salary offered without making sure it is fair according to their workload and in comparison to others in similar positions.

What is Sex Discrimination?

Generally speaking, sex discrimination occurs when an employee is treated unfairly solely because of their sex or gender. It is important to note that this treatment must not only be different, it must also be unequal and unfair. For example, asking your male and female employees to use different changing rooms is not discrimination. Providing only male employees with a changing room and asking female staff members to change in common areas or the washroom is discrimination. Employers cannot offer different working conditions, bonuses, salaries, or job offers to women and men based on sex alone.

It is important to note that sex discrimination can happen to men and women, as well as those who identify as non-binary or trans. It does overwhelmingly happen to women, trans, and non-binary folks, but men should remember that they too can become victims. Regardless of gender, if you believe you have experienced sex discrimination as described above, you should consider legal action.

There are numerous signs that you may have been the victim of sex-based discrimination. These include:

  • Consistently being excluded from important meetings and business-related discussions
  • Dress codes that require one gender to wear revealing clothing when dealing with the opposite one
  • Assigning dramatically different tasks to men and women
  • Engaging in any retaliation against employees for making sexual harassment or sex discrimination claims
  • Forcing pregnant women to quit
  • Failure to take complaints of sexual harassment and discrimination seriously

Receiving a poor performance review, losing a job to someone with more seniority than you, or not getting a job because you are unqualified do not count as sex discrimination. While it can be hard to figure out if you have experienced sex discrimination, it is pretty easy to know if you have not. For example, if you lost a job to a man, make sure that you each have similar skill sets and years of experience before considering if a sex discrimination claim applies. Filing a false claim before completing an investigation can cause the courts to look unfavorably upon future, legitimate ones.

Harassment and Sexual Discrimination

Sexual harassment is a form of sex discrimination, as it removes the victim’s right to have a safe workplace. Everyone has the right to work free from unreasonable, illegal, or unwanted demands for romantic or sexual relationships. Employers have an obligation to address and correct any sexual harassment situations that have been brought to their attention. Failure to do so can result in lawsuits and steep fines. The response to these claims should be immediate, regardless of the position of the person making the claim or the position of their alleged aggressor.

Employers are also prohibited from basing hiring decisions on the sexual conduct (or lack thereof) on the part of the application, to make sex acts a condition of employment, or to create an environment that is hostile, offensive, or intimidating to employees involved. Prohibited behaviors include things like unwanted touching, showing off sexual items or images, talking extensively about lewd sex acts, and making lewd comments.

Contacting the Equal Employment Opportunity Commission

People who have suffered through sex discrimination at work should first file a document that is known as a charge with the Equal Employment Opportunity Commission (EEOC). You should take this step before you file a lawsuit. You do not need to have a lawyer for this phase, but it is a good idea to arrange for a consultation to review your matte before filing the charge.

You must file this document within 180 days of the initiating incident at an EEOC office in your jurisdiction. If you fail to file this charge, you are not precluded from filing a discrimination claim, but a judge may not look as favorably on your case. There are no extensions granted.

Within 10 days of receiving your charge, the EEOC sends a notice to your employer, letting them know that a charge has been filed. They then begin their investigation, determining if you have sufficient evidence supporting your allegation. After the investigation concludes, they may make a finding of cause or no cause.

You can appeal a no cause finding, as long as you file the appropriate paperwork requesting a formal review. At this review, the EEOC can still decide that the no cause finding was the right one. They then issue you a right to sue letter, letting you know you still have other legal options available.

If the EEOC decides that there is cause for your claim, they begin the conciliation process. This is a legal procedure that is somewhat similar to mediation. During conciliation, you and your employer meet with a third party to try to find a way to resolve the issue without going through a lengthy and costly court battle. In many cases, a settlement agreement can be reached using this system.

In some cases, conciliation fails. This can be due to numerous causes. In some cases, the discrimination was so carefully done that it is almost impossible to prove. In others, it may be that there was some different treatment, but that it was not fundamentally unfair. When this process fails, the EEOC provides you with the right to sue letter. In cases where there was obvious discrimination, but the conciliation process fails regardless, the EOCC may even step in and assist with the filing of a lawsuit.

Available Damages

If you do decide to sue your employer for sex discrimination, there are a few different types of damages available to you, including monetary damages, remedies for lost income, and punitive damages, punishing the company for engaging in that behavior in the first place. Upon the successful completion of your lawsuit, you may realize damages from:

  • Back pay
  • Bonus payments
  • Pension payments
  • Benefits
  • Higher income

In some cases, employees choose to quit their position while the case is ongoing, to minimize their exposure to further incidents of harassment or sex discrimination. In these cases, instead of receiving higher income, the individual may receive a lump sum settlement accounting for the differences in wages.

Reporting Discrimination

Under California law, you cannot face any punishment or retaliation from your employer or others in your work place for reporting discrimination. This means that you cannot be terminated, have your salary or duties affected, or be faced with continuing workplace bullying or harassment as the matter proceeds through the system. If you are experiencing any of this, you may be able to quit your job and file a claim for constructive dismissal or wrongful termination.

Employees in large organizations who have filed complaints against direct supervisors can ask to be reassigned or to have someone else be directly involved in their work as the case proceeds. If your workplace decides against granting this request, you should follow up with the EEOC or your lawyer.

Should You Hire a Lawyer?

It is always a good idea to consult with a lawyer, even briefly, if you think you experienced sex discrimination. They can review the facts of your case and give you a legally sound opinion about your chances of success. Lawyers can also obtain certain information about working conditions that the average employee may not have access to. This includes information behind hiring decisions, as well as salary information for other employees of comparable experience and skill.

While you can file and pursue a claim for sex discrimination on your own, it is not recommended. The legal process can be incredibly complex to navigate on your own, especially if this is your first encounter with the justice system. Additionally, attorneys for your employer may make some statements that you find to be hurtful or unfair in the course of defending their client. Having your own lawyer in your corner can help soften these questions and requests for information, making the process much less traumatic and stressful for victims.

If you believe that you have been the victim of gender or sex-based discrimination at work, you should contact a skilled attorney immediately. You need someone on your side who is tough in court but compassionate with clients, especially given the sensitive nature of these types of claims.

It may not always be clear that you have been faced with this type of discrimination. For example, if you were passed over for a promotion and someone who is less qualified got the position, you might not be able to say for sure that it was discrimination that motivated the hiring decision. A skilled attorney with many years of experience in the area can help by examining the details of your specific case, letting you know its likelihood of success.

People who think they may have been a victim of gender-based discrimination at work can contact California Sexual Harassment Attorney to find out more. We have a team of skilled yet compassionate lawyers, ready to help you with your matter. Contact us today by calling 800-905-1856 and arranging a consultation or to find out more about your rights at work.

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