Gender Discrimination Lawyer

Gender discrimination in the workplace occurs when an employer discriminates – either directly through treatment or indirectly through policies and practices – a person based on his or her gender. In other words, the employer discriminates against the person because they do not conform to society’s structured roles and notions of gender.

When a person is discriminated against based on gender, it can lead to things like:

• decreased productivity
• fear and frustration
• isolation
• insecurities
• tension.

Gender discrimination is serious and occurs far too often – even after all the protections that have been put in place over the years. According to data from the U.S. Equal Employment Opportunity Commission (EEOC), in 1997, there were 24,728 discrimination cases nationwide based on gender/sex, making up 30.7% of all discrimination cases that year. Fast forward to 2019, there were fewer cases at 23,532, but its share of all discrimination cases nationwide increased to 32.4%. So, though these cases have decreased, the decrease in numbers isn’t significant. In fact, gender discrimination still makes up the bulk of discrimination cases. Not only is this true nationwide, but in California specifically.

In California, the Department of Fair Employment and Housing (DFEH) reported that sex and gender discrimination was the reason for 11% (at 1,018 cases) of all employee complaints. Further, sex and gender was the reason for 9% (at 4,792 cases) for right-to-sue letters and retaliation cases. When the list of protected classes is much longer in California (as compared to federally protected classes), the 9% share is significant.

In California, these numbers fluctuate slightly year to year but remain comparable.

When a person is discriminated against at work based on gender, that is a violation of state and federal law. In California, two specific laws protect employees against gender discrimination in the workplace:

1. California Fair Pay Act; and
2. California Fair Employment and Housing Act (FEHA).

Under these laws, gender discrimination – including discrimination based on sex, gender, gender identity, or gender expression – is illegal in the workplace.

Under FEHA specifically, unlawful gender discrimination includes:

• the refusal to hire someone of or representing a certain gender;
• termination or discharge of an employee due to his, her, or their gender affiliation;
• refusal to train a person due to his, her, or their gender, sex,

In terms of gender discrimination – or any other type of discrimination for that matter – employers cannot:

• disparately treat persons based on their gender, gender identity, sexual orientation;
• enforce policies or practices that disparately impact persons based on their gender, gender identity, sexual orientation;
• retaliate against persons who complain about the disparate treatment or disparate impact of things like company policies or practices.

Employers are prohibited from discriminating against a person based on gender in the following:

• Hiring
• Promoting
• Firing
• Compensation
• Transfers, promotions, layoffs, or recalls
• Advertising for a job (i.e., accepting only male, heterosexual applicants)
• Recruiting
• Testing (i.e., providing different tests based on gender or gender identity)
• Fringe benefits
• Pay, disability leave, retirement plan offerings
• Training and apprenticeship programs
• Any other terms and conditions of employment that discriminates against the person’s gender

Gender discrimination is often confused with sex discrimination because the two are very closely related. Gender typically refers to what role a person conforms while sex is the biological sex with which a person is born.

It gets more confusing when you add gender identity and sexual orientation and discrimination based on these things to the conversation. All these types of discrimination are unlawful in California. California’s Gender Recognition Act, designed to create equality in the workplace and throughout society, provides insight into what these terms mean. The Act states that

every person deserves full legal recognition and equal treatment under the law and to ensure that intersex, transgender, and nonbinary people have state-issued identification documents that provide full legal recognition of their accurate gender identity.
The Act defines gender identification as female, male, and nonbinary. It goes on to state that

“Intersex” is an umbrella term used to describe natural bodily variations, which can include external genitalia, internal sex organs, chromosomes, or hormonal differences that transcend typical ideas of male and female.
…
The binary gender designations of females and males fail to adequately represent the diversity of human experience. Nonbinary is an umbrella term for people with gender identities that fall somewhere outside of the traditional conceptions of strictly either female or male. People with nonbinary gender identities may or may not identify as transgender, may or may not have been born with intersex traits, may or may not use gender-neutral pronouns, and may or may not use more specific terms to describe their genders, such as agender, genderqueer, gender fluid, Two-Spirit, bigender, pangender, gender nonconforming, or gender variant. Nonbinary gender identities have been recognized by cultures throughout history and around the world, as well as by legal systems in the United States and other countries, medical authorities, and researchers. Studies show that nonbinary people face frequent discrimination, harassment, and violence in areas of life including education, employment, health care, and law enforcement.
…
Transgender is an umbrella term used to describe people whose gender identity or gender expression does not match the gender they were assigned at birth. Some transgender people have medically transitioned, undergoing gender-affirming surgeries and hormonal treatments, while other transgender people do not choose any form of medical transition. There is no uniform set of procedures that are sought by transgender people that pursue medical transition. Transgender people may identify as female, male, or nonbinary, may or may not have been born with intersex traits, may or may not use gender-neutral pronouns, and may or may not use more specific terms to describe their genders, such as agender, genderqueer, gender fluid, Two-Spirit, bigender, pangender, gender nonconforming, or gender variant. Studies show that transgender people disproportionately face discrimination, harassment, and violence in areas of life including housing, education, employment, health care, and law enforcement.

Exceptions are limited and only allowed when an employer can demonstrate that sex or gender is a bona fide occupational qualification under the California Code of Regulations. Often this is a defense used by employers, but to successfully raise it as a defense, the employer must prove that the practice is justified due to safety and health risks.

Gender discrimination can occur at any stage in the employment lifecycle, including a job interview. These examples serve to illustrate the forms which gender discrimination may take:

Hiring Process. The interviewer asks questions that have subtle biases. Do you have a partner? Do you plan to have a family? What do you do on the weekends? All of these types of questions have nothing to do with the work for which you are applying but can influence the interviewer’s impression of you.

Equal Pay. A person identifying as female who previously identified as male may get paid less than male counterparts who have the same qualifications and perform the same work. This would be disparate treatment based on the employee’s gender.

Conversations. It could be in the form of jokes or direct bias, like “We’ll let the real men handle this,” when there are heavy boxes to be lifted. A person may find themselves left out of certain work responsibilities.

Denied Opportunities. Not getting promoted while other less-qualified or less-deserving employees who are not of a particular gender or are not transsexual, transgender, homosexual, lesbian get the promotions.

Dress Code. When you are made to wear dresses but do not identify with the female sex and prefer pants, this is discrimination, especially if the same policy does not apply to all employees of the female sex. In California, it is illegal for an employer to prevent an employee from wearing pants because of sex.

Gender discrimination is a problem, but it’s hard sometimes to know for sure if you have a gender discrimination case or not. It can be clear to you when you are working that you are being discriminated against, but it may not be clear to the courts. These can be difficult cases, and only a skilled attorney may be able to identify and build a strong case for you.

If you have been treated differently or if a policy or practice affects you differently based on your gender, then you likely have a case. Proving it, however, can be a different matter.

Remedies are meant to place the victim of gender discrimination in the same or similar situation he or she was before the discrimination occurred. There are a number of ways to remedy gender discrimination, but each may not be available to each victim – much of it depends on the facts and circumstances.

Remedies of gender discrimination include:

• Back pay for all unpaid and owed wages
• Hiring when applicable and feasible
• Promotion when applicable and feasible
• Reinstatement into same or similar position when applicable and feasible
• Front pay for when reinstatement is not feasible and for income and benefits you would have earned
• Compensatory damages for things like the emotional pain and suffering you endure
• Punitive damages to punish the employer
• other actions intended to make you “whole” again, i.e., to put you in the condition you would have been in but for the discrimination.

In many cases, remedies will include things like:

• court costs
• attorneys’ fees
• expert witness fees.

You as the victim shouldn’t be made to pay those things. Also, the employer may have to take measures to correct any policies or practices in place that make discrimination easy or allowable. Notices may have to be put up, too, informing employees of their right to be free from discrimination, harassment, and retaliation.

If you believe you have or are being discriminated against by your employer based on your gender, you need to take action. The mere emotional and mental weight of the discrimination can harm you. Here are some things you should do right now.

1. Gather and Keep Evidence. Make sure you take notes – keeping track of names and dates – of when you experienced discrimination. Not all events may qualify as discrimination but it can create a pattern.
2. Report the Discrimination. If you trust your Human Resources office, you can report the discrimination. Many times, though, people are scared to do this because they are afraid of retaliation. Retaliation, like wrongful termination, is unlawful, but it still worries people who want to keep their jobs.
3. Report the Discrimination to State & Federal Agencies. You can file a discrimination claim either with the state administrative agency (the California Department of Fair Employment and Housing) or the federal administrative agency (the Equal Employment Opportunity Commission). When you file with either, you can request to cross-file – filing at both is unnecessary so long as you indicate in the claim you want to cross-file. Keep in mind, too, that in California, you can file a claim if your employer employs between 5 and 14 employees (or more), but you cannot file a federal claim unless your employer employs 15 or more employees.
4. Retain an Experienced Gender Discrimination Attorney in Los Angeles. Reporting and filing claims of discrimination can be a scary process. Not only are you worried about your employer finding out, but you may not understand all the forms or know how best to relay the information so that your claim is accepted and thoroughly investigated so that the outcome is in your favor. An attorney can help you. Of course, going this route, you may be worried about attorney fees, but remember this too: you can request reasonable attorney fees in your lawsuit against the employer. This is a fairly common practice that is typically granted by the courts.