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Gender Discrimination

Congress enacted employment discrimination laws, including Title VII and the Equal Pay Act, to combat the issue of sex discrimination. Despite these protections, gender discrimination in the workplace continues to be a problem in this country.

Employment practices that constitute sexual or gender-based discrimination occur when a person is treated differently because of their sex. This includes disparate treatment due to the following:

  • Sexual orientation
  • Gender identity
  • Gender expression
  • Pregnancy
  • Pregnancy-related conditions including lactation
  • Sex stereotype

Sex-based discrimination may affect anything from hiring decisions to promotions. Sexual harassment is another form of gender discrimination similarly prohibited by federal law. FindLaw's Sexual Harassment and Sex/Gender Discrimination sections cover the subjects in detail. Below is information on gender discrimination in the workplace.

Sex and Gender Discrimination at Work

Women have proven themselves capable of extraordinary accomplishments in business, athletics, academics, politics, and various other fields. However, female employees continue to be victims of gender discrimination.

Discrimination against women remains a troublesome aspect of our society. Despite legislative and social efforts to achieve equality, women continue to earn lower salaries and have fewer opportunities than male employees. Sexual discrimination takes many different forms. It always amounts to unequal treatment on the basis of sex.

Common forms of sexual discrimination include:

  • Pay disparity
  • Discriminatory job standards
  • Failure to promote
  • Differences in working conditions

One unique aspect of sexual discrimination is sexual harassment.

What Conduct Is Considered Sexual Harassment?

Both men and women have a right to be secure and perform their jobs free of:

  • Unwanted demands of a sexual nature
  • Requests for sexual favors
  • Requests for romantic or sexual relationships
  • Unwanted communication, including emails, text messages, or social media contact
  • Unwelcome sexual advances
  • Sexual behaviors that interfere with their ability to work, including lewd comments, unwanted touching, or displays of sexual depictions

Conduct may be physical. It can include massages, hugs, sexual assault, and rape. It can also consist of verbal conduct, like vulgar jokes or discussions about sex.

Who Can Be Charged With Sexual Harassment?

Sexual harassment includes the harassment of lower-tier employees by a manager or executive of a lower position. Sexual harassment can also occur among coworkers. Further, third parties can also be a harasser. Third-parties include:

  • Customers
  • Vendors
  • Independent contractors
  • Consultants

It is illegal for employers to:

  • Make sexual conduct a term or condition of employment
  • Base employment decisions on such conduct
  • Permit sexual conduct that unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment

Does Sexual Harassment Have To Be Sexual?

No. An individual can have a claim for sexual harassment even if the harassment is not motivated by sexual desire or sexual in nature. Sexual harassment can include:

  • An environment hostile toward members of the disadvantaged sex
  • Statements that belittle an individual based on their sex
  • A policy disadvantaging a group based on sex
  • Hostility towards an individual because of sexual orientation, gender identity, or not conforming to stereotypes about how someone of a particular sex should look or act

Harassment can be based on other sex-based traits such as pregnancy or breastfeeding. Behavior can be illegal regardless of whether the perpetrator and victim are of the same sex or different sexes.

What Distinguishes Obnoxious Behavior From Illegal Conduct?

It can be tricky to determine exactly what behavior constitutes illegal harassment. Simple teasing and offhand comments can be common in the workplace. Isolated incidents that are not serious will probably not be considered unlawful.

Harassment becomes illegal when it is:

  • Widespread
  • Frequent
  • Severe
  • Unreasonably interfere with work performance
  • Creates an intimidating, hostile, or objectively offensive work environment

Where submission or rejection of harassment is a condition of employment or advancement, it's illegal. If an employee is fired or faces other negative consequences, it likely violates the law. This includes facing a negative action or opposing the harassment.

What Steps Should You Take?

If you believe your rights have been violated in the workplace, you should take the following steps:

  • Try to tell the harasser that the conduct is unwelcome and ask for it to stop
  • Keep a detailed record of the harassment or other negative treatment, but do not use an employer's computer to make these records
  • If the harassment does not stop, review your employer's policies that apply to discrimination and harassment
  • Know your employer's policies, including complaint protections, and follow them
  • If your employer does not have an established complaint procedure, report the unwelcome behavior to your human resources department
  • Contact the EEOC or the state or local agency with similar authority

The EEOC provides guidance on its charge processing procedures and what to do when filing an EEOC complaint.

What to Expect: An EEOC Cause of Action Chronology

When an employer is responsible for discrimination, one possible action is to file a charge with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency that administers and enforces civil rights laws against workplace discrimination.

The EEOC is responsible for enforcing federal anti-discrimination laws that seek to create fair employment in this country's workplaces. In particular, the EEOC is responsible for enforcing federal laws that prohibit discrimination in aspects of employment for job applicants and employees based on a person's:

  • Race
  • Ethnicity
  • National origin
  • Religion
  • Sex (including pregnancy discrimination and related conditions, gender identity, and sexual orientation)
  • Age (40 or older)
  • Disability
  • Genetic information

The laws apply to all types of work situations, including:

  • Hiring
  • Firing
  • Promotions
  • Harassment
  • Training
  • Wages
  • Benefits
  • Creating hostile work environments

The EEOC investigates discrimination claims, mediates disputes, and settles complaints. The organization can file civil discrimination legal actions against employers on behalf of their employees. The EEOC can also rule on claims of discrimination brought against federal agencies.

How Does an EEOC Action Proceed?

typical EEOC action proceeds along a set path. If your employer discriminates against you in the terms or conditions of your employment for an unlawful reason, you can file a charge at the nearest EEOC office. You must file the charge within 180 days of the discriminatory incident.

The EEOC must notify your employer or the human resources department for your employer of the charge within 10 days of filing. The EEOC begins an investigation to determine whether there is cause to support your allegation of discrimination.

If the EEOC finds no cause, you can request a review of the determination within 14 days of the decision. If the EEOC affirms the no-cause finding, they will issue a right to sue letter. If it determines there is cause, they will start conciliation.

Conciliation is intended to resolve the dispute between you and your employer without going to court. You and your employer settle. If conciliation fails, the EEOC will issue a right to sue letter or file a lawsuit on your behalf. If they issue a letter, you must file your lawsuit within 90 days of receipt of the letter.

Gender Discrimination Laws

Laws seeking gender equality and protecting the rights of all people are key reasons for gender discrimination laws. A few such laws are outlined below.

Title VII of the Civil Rights Act of 1964

Concerning employment, Title VII of the Civil Rights Act of 1964 protects employees, job applicants, and union members from sex discrimination in the workplace.

Federal courts have recognized that existing sex discrimination bans also prohibit discrimination based on sexual orientation and gender identity.

Title VII applies to companies with 15 or more employees. Some state laws provide such protection to workers at companies with fewer employees. For example, New York laws do not allow sex discrimination by employers with four or more employees and forbid discrimination against transgender people.

The Equal Pay Act of 1963

The Equal Pay Act of 1963 protects men and women who perform substantially equal work in the same establishment from gender-based wage and benefit discrimination.

The Lilly Ledbetter Fair Pay Act

The Lilly Ledbetter Fair Pay Act allows women to challenge unequal pay in court by effectively extending the statute of limitations on filing a claim. Congress enacted this statute to overcome a defeat at the U.S. Supreme Court in her landmark discrimination case Ledbetter v. Goodyear Tire and Rubber Co. Lilly Ledbetter fought for a decade to close the gap between women's and men's wages and any employer's policy that allows for unequal pay based on a person's sex.

Get Help From an Employment Lawyer

If you believe you have been a victim of sexual discrimination in the workplace, including sexual harassment, an attorney may help. Meeting with a lawyer can help you understand your options and how to protect your rights.

An employment lawyer can provide legal advice regarding a variety of employment laws that may apply to your situation. Visit our employment lawyer directory to find a lawyer near you who can help.

Learn About Gender Discrimination

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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