How to Prove a Workplace Gender Discrimination Claim

Perhaps you’re sick of being mocked at work for being gay or trans. Or maybe you’ve had enough of the boss always favoring female employees. You’re likely wondering if these kinds of things add up to discrimination or harassment. And even if they do, what can you do about it? After all, you need your job.

If you suspect you may be facing some type of gender-based discrimination at work, several rights and remedies may be available to you. It’s highly advisable to touch base with an employment attorney licensed in your state to help you understand your options at this difficult time.

In this article, we’ll explore how federal law treats these discrimination cases. But it's essential to note that state anti-discrimination laws often provide additional protections for victims of gender-based employment discrimination.

Federal Workplace Discrimination Laws

Federal law primarily governs workplace discrimination claims. Two key federal laws, enforced by the U.S. Equal Employment Opportunity Commission (EEOC), are Title VII of the Civil Rights Act and the Equal Pay Act of 1963.

Title VII

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on several protected classes. These include:

• Race
• Color
• Religion
• Sex
• National origin

"Sex" generally refers to the biological sex one is assigned at birth. However, the Supreme Court has interpreted Title VII’s ban on sex discrimination to include discrimination based on pregnancy, gender, gender identity, and sexual orientation.

Gender refers to the social and cultural roles, behaviors, and attributes that society associates with men, women, and non-binary individuals. Non-binary is a gender identity that doesn’t fit within the traditional categories of male or female.

Gender identity is a person's internal sense of their own gender. This may be male, female, a blend of both, neither, or something else entirely. A person’s gender identity may be different from their sex.

Sexual orientation refers to the gender or sex to which someone is attracted.

The Equal Pay Act

The Equal Pay Act of 1963 specifically addresses pay discrimination based on sex. It mandates that female and male employees receive equal pay for equal work,

So, now that we understand that workplace gender discrimination is illegal, let’s examine what it is.

Workplace Gender Discrimination

Workplace “gender discrimination” and workplace “sex discrimination” are often used interchangeably. They refer to the unfair treatment of an employee or job applicant because of their sex, pregnancy, gender, gender identity, or sexual orientation.

As such, workplace gender discrimination can take many forms. It might include:

• Paying employees differently for the same work based on their gender
• Favoring one gender identity over another for advancement opportunities
• Preferring one job applicant over another during the hiring process because of potential pregnancy
• Giving better performance evaluations or privileges of employment to certain employees because of their sex
• Assigning job duties or projects based on gender stereotypes
• Co-workers harassing an employee because of their sexual orientation

Sexual harassment is also a type of workplace gender discrimination.

Sexual Harassment

Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. It can range from the use of sexist slurs to making sexual acts a condition of employment. This type of gender-based harassment can create an intimidating or hostile work environment.

What Can You Do?

Now that we have a better idea of what discriminatory employment practices might look like, let’s look at some measures you might take. If you suspect you might be facing gender discrimination at work or as a job applicant:

• Review the employee handbook and any internal anti-discrimination policies and procedures
• Document incidents, including dates, times, locations, and any witnesses
• Gather evidence like emails or text messages

It’s highly likely that unlawful discriminatory practices also violate the employer’s policies. As such, you’ll often have access to procedures for internal resolution.

However, you may want to touch base with an employment or gender discrimination lawyer first. They may advise you to file a charge with the EEOC before attempting to resolve the issue internally. This could be for several reasons, including:

• Time sensitivity: You generally have 180 (in some cases 300) days after the alleged violation to file with the EEOC.
• Severe discrimination: In cases of severe or ongoing discrimination, immediate external action may be needed to prevent further harm.
• Retaliation concerns: If you fear retaliation from the employer for reporting the discrimination internally, filing directly with the EEOC can provide protection.
• Lack of trust: If you believe the internal complaint process is biased or ineffective, going directly to the EEOC might be a better option.

Properly filing an EEOC charge also preserves your right to sue, if necessary.

Filing an EEOC Charge

For most workplace discrimination claims, you’ll need to file a charge with the EEOC before you can bring a federal discrimination lawsuit against the employer. You don’t have to prove your case with the EEOC. But you will need to provide a signed statement asserting that the employer engaged in discriminatory practices.

If you file a charge after the deadline, you may lose your right to sue.

If you file on time, the EEOC will likely investigate your claims. It may try to resolve the matter between you and the employer through mediation or conciliation. In some cases, the EEOC may sue the employer on your behalf. Alternatively, it may issue a letter giving you the right to sue.

Elements of a Workplace Gender Discrimination Claim

Whether you’re making your case internally, in court, or through alternative resolution methods, you’ll want to understand the elements of a workplace discrimination claim. These are the essential components an employee/job applicant must prove to establish a valid case. They include:

• Membership in a protected class: In this case, sex, gender, gender identity, pregnancy, or sexual orientation
• Adverse employment decision/action: Such as termination, rejection, and unequal pay
• Qualification: You were qualified for the item in question, like a position or promotion
• Circumstances suggesting discrimination: May be shown through various means, such as discriminatory remarks or more favorable treatment of qualified individuals outside the protected class

In a lawsuit, the plaintiff needs to establish these elements with evidence. Direct evidence of discrimination is rare, so plaintiffs often use circumstantial evidence, such as patterns of behavior or statistical evidence.

If you’re able to establish these elements, the burden of proof then shifts to the employer. This means the employer must provide a legitimate, non-discriminatory reason for the adverse action. If it does, you must then prove that the employer's reason is a pretext for discrimination. A pretext is a false or misleading reason given to cover up the true motive behind an action.

Elements of a Sexual Harassment Claim

While sexual harassment is a form of gender discrimination, it has different elements. This is because it involves specific behaviors/impacts that require distinct legal considerations.

Remember, sexual harassment can be the quid pro quo type, where job benefits are conditioned on sexual favors. It can also take the form of a hostile work environment, where the conduct is severe or pervasive enough to create an intimidating, hostile, or offensive work environment.

Plaintiffs in sexual harassment cases must show:

• Membership in a protected class: Based on sex, gender, gender identity, pregnancy, or sexual orientation
• Unwelcome harassment: Undesirable or offensive conduct that wasn’t invited or solicited
• Based on sex: Conduct based on the plaintiff's protected class
• Employer liability: Employer knew/should have known about the harassment and failed to take appropriate action

As with other gender discrimination claims, the burden shifts to the employer after you’ve established these elements. It should come as no surprise that skilled legal representation can greatly improve your chances of success. 

State Law

Pursuing the remedies available to you at both the federal and state levels can be advantageous. In many cases, state law offers broader protections than federal law.

For example, California’s Fair Employment and Housing Act (FEHA) and New York’s Human Rights Law apply to small employers who are exempt from Title VII. So, you’ll want to speak with a lawyer who’s experienced and familiar with your state’s laws and protections.

Legal Guidance

If you’ve faced gender discrimination as an employee or job applicant, you have rights. But navigating this legal landscape can be challenging. It’s highly advisable to enlist the help of a discrimination or employment attorney licensed in your state. You can share your specific situation with them confidentially. They can help you understand your options so that you can determine the best way to proceed.

Fortunately, identifying qualified attorneys in your area is easy. Findlaw’s dedicated directory of discrimination attorneys, as well as its directory of employment attorneys, provides you with plenty of options. Just click on your state and narrow your search results by city. You’ll instantly be connected with ratings and contact information for local experts. If you've experienced gender discrimination, consider reaching out to an attorney right away. A trusted advocate may be your most important ally at this consequential time.