Gender discrimination in the workplace occurs when an employee or job applicant receives less favorable treatment because of their gender, sexual orientation, gender identity, or gender expression.
The Fair Employment and housing Act (the “FEHA”) protects California employees from discrimination on the basis of sex. The FEHA generally applies to companies of five or more employees.
Federal laws including the Civil Rights Act of 1964 and the Equal Pay Act of 1963 also prohibit workplace discrimination based on gender.
Damages for Gender Discrimination and Harassment
If you have been the victim of gender discrimination or harassment, you may be entitled to recover damages in an amount that will compensate you for the detriment caused by the wrongful conduct. This includes backpay, front pay, reinstatement, emotional distress, punitive damages, attorney’s fees and costs. Contact us today to learn more about possible damages related to your situation.
Types of Gender Discrimination
In general, there are two ways that an employee can establish gender discrimination under the FEHA
Disparate treatment gender discrimination
Disparate treatment gender discrimination occurs where an employer who is covered by applicable anti-discrimination laws takes a negative employment action against a worker because of their gender. Negative employment actions include refusal to hire, refusal to promote, or termination of an employee because of their gender. In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.
Examples of disparate treatment gender discrimination include: paying lower wages to women as compared to men with the same job title, education and similar qualifications; subjecting women to a more burdensome appearance standard, and discrimination based on pregnancy, childbirth, or breastfeeding related issues.
Disparate impact gender discrimination
Disparate impact gender discrimination occurs when employers adopt policies that are neutral on their face but it has a disproportionate adverse impact on employees of a certain gender, sexual orientation, gender identity, or gender expression. Regardless of the employer’s lack of discriminatory motive, if a neutral employment policy results in harsher impact on workers in protected groups, an employer may be held liable for disparate impact discrimination.
There are a number of ways that an employee may be discriminated against because of his or her gender, such as:
- Consistently promoting one gender over another
- Excluding one gender from important meetings or work functions
- Distributing offensive memes or emails
- Not taking reports of gender discrimination seriously
- Firing an employee for changes in their gender identity
- Requiring women and men to perform different job duties
- Demanding sex in exchange for job related benefits
- Allowing an atmosphere of severe or pervasive sexual comments or behavior that alters the work environment for employees
Does Your Employer Have to Prevent Discrimination?
When an employee is subject to discrimination by supervisors or co-workers is unlawful for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
If you were subject to discrimination that your employer was aware of and your employer failed to prevent the discrimination from happening which resulted in harm to you, the law entitles you to damages for that harm.
Disparate treatment discrimination
Disparate treatment racial discrimination occurs where an employer who is covered by applicable anti-discrimination laws takes a negative employment action against a worker because of their race. Negative employment actions include refusal to hire, refusal to promote, or termination of an employee because of their race. In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.
Is your Employer Liable for Harassment?
California law also prohibits employers, supervisors, and co-workers from harassing any employee because of gender, sexual orientation, gender identity, or gender expression.
If you have been the victim of constant harassment such as name-calling, offensive jokes, derogatory comments, or unwanted touching, you may be entitled to damages even if you did not suffer any harm.
If you are subject to frequent and severe hostile, offensive, oppressive, or intimidating behavior as a result of a protected aspect of your identity, you may be the victim of actionable harassment. This type of behavior deprives you of your right to a workplace free of discrimination.
Harassment may involve physical, oral, or written conduct that is offensive or derogatory—so long as it is motivated by the employee’s protected characteristic.
Your Employer Cannot Retaliate Against You for Filing a Gender Discrimination or Harassment Claim
Current employees are often concerned that they will lose their job as a result of filing a claim against their employer. However, law protects employees from retaliation in the form of termination or any other adverse employment action simply because an employee asserts their legal rights. An employer who retaliates against an employee for fighting back against gender discrimination is subject to additional damages as a result of unlawful retaliation.
Fernandez & Lauby Can Help You with Your Gender Discrimination and Harassment
Our employment law attorneys have the experience, skill and resources to navigate your legal options and help you achieve the best possible outcome for you case. We offer our services on a contingency fee basis which means that you will pay nothing out-of-pocket, and we collect our fees only if we win. Contact our team for a free evaluation of your case.