Gender discrimination occurs when someone is treated differently because of their sex, regardless of whether they are male or female. Gender discrimination in the workplace has been a problem in the United States for many years, and it unfortunately still occurs today. Although women are most often the victims of sex discrimination, gender discrimination does occur against men as well.
Gender discrimination in the workplace usually involves some negative action that relates to your employment. It could be an assignment to an undesirable or gender-specific role, or it could relate to a promotion or reduced pay. If you have been fired, rejected for employment, or suffered any other negative employment action because of your gender, you may have a valid legal claim for gender discrimination. Contact an employment attorney to discuss your legal options.
Difference Between Sex and Gender Discrimination
The terms “gender” and “sex” are usually used interchangeably in everyday language. However, they have different meanings in the context of discrimination.
Discrimination based on gender is focused on the traits of a specific gender rather than a person’s biological makeup. Gender may depend more on which sex the individual perceives themselves as. Sex discrimination, on the other hand, is focused on the actual anatomy of the individual.
Regardless of whether an employer has discriminated based on sex or gender, this type of discrimination is illegal. Employees and potential employees should be treated equally, regardless of their sex or gender.
Today, gender discrimination also covers discrimination based on sexual orientation. This is a relatively new development for federal law. Because gender discrimination is based on gender identity, workplace discrimination based on an individual’s status as lesbian, bisexual, gay, transgender, etc. is illegal under federal law.
What is Sex Discrimination?
Sex discrimination occurs any time that someone is treated differently because of their sex. In the workplace, the following employment actions are common sources of workplace discrimination claims based on sex.
- Hiring/Firing. Some work environments choose to only hire men or women. This practice is illegal in most circumstances. Your employer also cannot fire you simply because of your sex. This pattern is sometimes evident when there are mass layoffs, and only one gender is present or prominent in those who have lost their positions.
- Pay. Women and men who are equally qualified should make the same amount of money. Unfortunately, unequal pay is staggeringly common among women and men in the workplace. Even today, women only earn, on average, 79 cents for every dollar earned by a man. This means that the gender wage gap averages about 21 percent.
- Promotions. When one sex is routinely promoted over another, this could be a sign of gender discrimination. If you have suffered through an incident where the other sex was promoted instead of you, but the other individual is less qualified, then you may have a claim for gender discrimination in the workplace.
Job classification and benefits can also be a key area for gender discrimination in the workplace.
Federal Laws that Protect Against Sex and Gender Discrimination in the Workplace
The Civil Rights Act of 1964 has a specific section that addresses gender discrimination in the workplace. It is commonly referred to as Title VII. This law explicitly makes it illegal for employers to discriminate against anyone on the basis of sex when making decisions regarding:
- Job opportunities
- Job/location assignments
- Advertising for job openings
- Apprenticeship programs (or on-the-job training opportunities)
- Any other related employment decision
State laws also often offer additional protections for those based on gender, but not always. Some states also offer protections for those who are pregnant, on pregnancy leave, or have a medical condition related to childbirth. Virginia offers these additional protections. These are in addition to the federal protections under the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy in 1978.
Other states also specifically offer protections based on sexual orientation and gender identity. Currently, however, Virginia does not offer such protections under state law. But because of the relatively new expansion of federal law, members of the LGBT community are protected based on sex discrimination under federal law.
The Equal Pay Act
The Equal Pay Act (EPA) also affects gender-based discrimination and specifically addresses the wage gap between men and women. This Act also extends to benefits, profit sharing, etc. as well. It calls for equal pay for men and women who have equal work in the same business or company. The jobs themselves do not have to be precisely identical, but if they are substantially similar, then the pay rates should be the same.
The EPA makes proving wage discrimination based on gender easier than proving it under Title VII. For example, under Title VII, the victim has to show that the employer intended to discriminate based on sex. There is no such requirement under the EPA.
The EPA requires that the job have similar working conditions, and require skill, effort, and responsibility that is relatively the same. Working conditions include both hazards involved in the job and the physical surroundings (e.g., temperature or ventilation).
- Skill. This is measured under the law by evaluating items such as education, training, and experience. The focus is more on the skills required by the job instead of the training or skills of the individual.
- Effort. Effort is measured by the actual mental or physical requirements of the job.
- Responsibility. The focus here is the level of accountability that the job requires. This could include individual responsibilities or oversight of other employees.
Once unequal pay treatment is found, the employer is not permitted to decrease the wages of either employee. Wages must be increased until they are equal.
The EPA also applies to those employees who work before or after another employee in the same role. For example, if the employer was paying a man $10.00 to do the job, and that employee leaves, the employer cannot then hire a woman to fill his place and only pay her $9.00 to do the same job.
Workplace Harassment and Gender Discrimination
Although harassment is addressed in other forms of discrimination, it is often considered a unique issue in the context of gender. Employers are required to address any sexual harassment situations that occur in the workplace that they know about or that they should be aware of. This obligation extends to situations where supervisors or managers are harassing lower-ranking employees because of their gender.
Sexual harassment includes unwanted sexual advances. This could involve physical touching or consistent crude remarks. It could also include requests for sexual favors or any other harassing conduct that is based on sex.
Harassment does not have to be sexual in nature or targeted toward an individual. It can include comments about a gender as a group. However, the law does not protect against simple teasing or singular incidents. Harassment is, by definition, frequent and severe. It becomes illegal when it creates a hostile work environment.
Keep in mind that the victim and the perpetrator can be both either male or female—sexual harassment does not occur only to women.
Related Discrimination that is NOT Protected by Federal Law
Women and men often go through different life events, which can increase the likelihood that they will be treated differently at work. Although the following treatment is not advisable for employers, it is not technically protected as gender discrimination under federal law. Some states may offer these additional protections, however.
- Status as married or unmarried
- Different treatment for those who have children versus those who do not
- Differing treatment for those who have to care for family members
Is Gender Ever a Qualification of a Job?
Gender can be a qualification for a job and fall outside of the prohibition of gender discrimination in the workplace. However, these situations are rare. Gender must be an absolutely essential part of the job, which is commonly referred to as a “bona fide occupational qualification.” The most common example is actors and actresses.
Employers cannot refuse to hire a specific gender because of things like co-worker preferences, traditionally male or female occupations, stereotypical characteristics of the sexes.
Remedies Available for a Gender Discrimination Claim
If you believe that you have suffered gender discrimination in the workplace, then you may have a legal claim. Successful claims can often collect monetary damages that address your losses related to:
- Back and front pay
- Lack of employment or hiring
- Losses associated with failing to obtain a promotion
- Reinstatement to your previous position
- Damages related to mental anguish, pain and suffering, etc.
- Punitive damages (in rare but serious situations)
In some situations, you may also be able to recover attorney fees, costs associated with expert witnesses, and court costs.
A skilled employment discrimination attorney can help you use the right government agencies and the court system to address gender discrimination in your workplace. You do not have to sit back and endure—you have legal options. Contact The Brown Firm PLLC for more information.