Gender Discrimination in the Workplace

The law is very clear; women are equal to men. It is absolutely unlawful for company to fire, pay less, or demote a female simply because of her gender. Unfortunately, glass ceilings and male bias still dominate California workplaces. This webpage will provide you with strategies and information to help you fight against gender discrimination at work.

Here are shortcuts to specific topics below:

If you would rather watch this video on YouTube, click here. If you actually want to learn about discrimination in general, click here. If your situation involves more harassment (as opposed to discrimination), we highly recommend you review our hostile work environment page here.

California’s gender discrimination says that it is unlawful for an employer to terminate or discriminate against an employee in salary, conditions, or privileges of employment because of her gender.1

Very simply, this means that a company cannot do anything bad to you simply because you are female. Similarly, a company cannot do anything bad to you because you are male. The law is gender neutral and applies to everyone, not just women. 

It might seem silly, but we should define “gender” to make ensure this page is true to the letter of the law. Traditionally, when people hear the word gender they think male or female. That is correct but not the end. The law says that “gender” means sex, but also includes a person’s gender identity and gender expression. The term “sex” is found throughout this body of law and also includes a person’s gender.2 But sex also includes pregnancy, medical conditions related to pregnancy, childbirth, medical conditions related to childbirth, breastfeeding, and medical conditions related to breastfeeding.3

Therefore, “gender” includes the following individuals:

  • Women,
  • Pregnant women,
  • Women who have gone through childbirth or are about to go through childbirth,
  • Women who are breastfeeding,
  • Disabled women (as a result of pregnancy, childbirth, or breastfeeding)
  • Transgender and transsexual individuals, and
  • Men (female supervisors and hiring managers can’t discriminate against a man simply because he is a man – remember, the law is gender neutral and applies to everyone).

Major Laws that Address Gender Issues in the Workplace

There are several laws in California that address gender fairness at work. The main law that applies in California is the Fair Employment & Housing Act (“FEHA”). FEHA prohibits employers who have five or more employees from discriminating or harassing an individual on the basis of gender. If an individual cannot find a private lawyer like Mr. Robertson to take their case, gender discrimination claims may be pursued by the Department of Fair Employment & Housing (“DFEH”).

Next, is Title VII. This law applies to everyone in America (not just Californians). It is similar to FEHA, but not as good. It applies to employers that have 15 or more employees. If an individual cannot find a private lawyer like Mr. Robertson to take their case, gender discrimination claims may be pursued by the Equal Employment Opportunity Commission(“EEOC”).

Finally, the Equal Pay Act of 1963. This is a part of the Fair Labor Standards Act (“FLSA”) which prohibits wage discrimination. These laws make it unlawful for a company to pay females less than men for substantially equal work.

Common Examples of Gender Discrimination & the Glass Ceiling

In order to have a case, your lawyer will need to prove that the discrimination against you was done based on your gender. The glass ceiling still exists and is a major impediment to women in many workplaces. Good attorneys will focus on how you are being treated differently that the men and figure out how to prove it in court. 

Here are some common examples of the glass ceiling:

  • A female sales representative is excluded from golf, dinners, and meetings with important prospects because she isn’t male. 
  • Hiring, firing, demoting, promoting, or reprimanding someone because they are female, but not doing the same to males at the company.
  • Not firing, reprimanding, or demoting someone because of their sex. This usually occurs when a female complains about a male harasser, and he is left alone because he is “one of the guys.”
  • A female manager finds out that a male manager in the same position with the same duties is getting paid more money than she is despite her having equal experience and education.
  • The executive team has never had a female member, and the board of directors won’t even consider female candidates.
  • A new mother gets a pay cut because she can’t put in as much overtime after just having had a baby, while a male employee cuts back on overtime for “stress” with no changes to his pay.
  • Refusing to hire individuals because they identify as transsexual or firing someone because they are transitioning to a different gender.
  • Not allowing a female to go to training or conferences, but letting men go regularly.

Examples of Actions that Are Not Gender Discrimination (But May Seem Like It)

  • Reprimanding the only female employee in your division because she made a legitimate mistake at work. However, this could be discriminatory if male employees made the same mistake but they were not reprimanded.
  • Laying off several female employees at the same time. This would not be discriminatory if there were legitimate reasons for selecting those job positions for layoffs. However, if motivating reason for the layoffs is to get rid of female employees, it would be unlawful.
  • Paying a new female employee less than a new male employee for a similar position (but with less responsibility) because she has five years less work experience. However, this can become discriminatory down the road if she assumes equal responsibility, performs substantially similar work, and the company doesn’t equalize her pay.

Obviously, if you were fired, it is extremely unlikely that your employer will admit that they fired you because you are female. They will offer a dishonest and non-discriminatory reason for your termination. This lie is called “pretext,” and your lawyer will have to prove that the company is lying. Mr. Robertson made a YouTube video on pretext and we recommend that you watch it.

The Real-World Effects of Discrimination

When someone is the victim of discrimination at work, there are several emotional and psychological implications:

  • Isolation from supervisors and co-workers
  • Lack of communication between the victim and supervisor (which leads to less productivity)
  • Decreased access to management, ownership, and other key figures in the company
  • Lower self-esteem 
  • Decreased enthusiasm for the job
  • Dramatic increase in tension between the victim and perpetrator
  • Humiliation for being excluded, mocked, and targeted 
  • Physical pain often is a manifestation of extreme stress and anxiety

What Should You Do if You’re a Victim?

The answer to this depends on if you are still employed, if you quit, or if you were terminated. Discrimination attorneys like Mr. Robertson usually change their advice depending on what situation applies to you. Please note! The below information is not legal advice. Every case needs to be independently evaluated by a lawyer before you take any action.

If You Were Terminated

If you were terminated after experiencing discrimination, what should you do? Generally, we recommend that people call an attorney right after they are fired. That is the best time to contact a lawyer. If you feel like we have earned that phone call, please call or contact us here.

Generally, we don’t recommend that people threaten legal action. We’ve seen too many people ruin their case by threatening legal action or inadvertently getting sued for extortion. You should find and rely on the advice of an experienced attorney.

However, due to the sheer number of people looking for a lawyer, not everyone can find a good lawyer to take their case. If you cannot find a lawyer, we recommend that victims consider filing a claim with the DFEH. The DFEH will investigate your claim for you, and in some cases, pursue the claim on your behalf. The DFEH is similar to the EEOC (which is the Federal equivalent). 

If You Are Still Employed 

If you are still employed we recommend that you submit a respectful complaint in writing to the appropriate authority at the company. 

To be effective, this complaint must be written carefully and submitted correctly. It must be respectful, helpful, concise, and, more importantly, identify that you believe that your boss or co-worker is doing this to you because of your gender. Mr. Robertson has made an entire video on how to properly complain at work. Watch it here.

If you would rather watch this video on YouTube, click here.

If You Quit Your Job 

If you quit your job because you are the victim of gender discrimination, what are your options? Unfortunately, you have fewer legal options. That is why, unless extraordinary circumstances apply, good discrimination attorneys generally don’t recommend that people quit.

As you’ll see below, if you quit your job, you are not entitled to recover your lost wages. This is a significant blow to the financial prospects of your case. Usually, lost wages are a significant part of the recovery in a gender discrimination case.

Are there exceptions to this? Yes, if your resignation can be classified as a “constructive termination” you can still recover your lost wages. According to California law, a constructive termination is when, due to the employee’s gender, the company makes the working conditions so intolerable that a reasonable person in the employee’s position would have had no reasonable alternative except to resign. 

Be warned, it is very hard to have your resignation qualify as a constructive termination. In general, it’s very hard to win constructive termination cases. But Mr. Robertson has successfully pursued several constructive termination cases in the past. So, if extraordinary circumstances apply to you, call our office for a free consultation.

How Much are Gender Discrimination Cases Worth?

How much money do gender discrimination lawsuits settle for? That depends. Some cases settle for millions of dollars; but most settle for substantially less than that. The value of your case depends on hundreds of factors, most of which you have no control over. 

If you would rather watch this video on YouTube, click here.

Generally, discrimination victims can recover four types of damages:

  1. Your lost wages, bonuses, and benefits. You can only get these if you were fired or if you resignation qualifies as a constructive termination.
  2. Damages to compensate you for the emotional pain and suffering you experienced as a result of the unlawful conduct.
  3. Punitive damages if the company acted with malice, oppression, or fraud.
  4. Attorney’s fees if you go all the way to trial and win. This is very helpful because it gives the company a big incentive to settle.

If you want to know more about the money aspect of these kind of lawsuits, watch the above video that Mr. Robertson made about the monetary value of discrimination cases.

The Deadline to File Your Case 

In all areas of law, there are deadlines to file your case. These deadlines are called “statutes of limitations.” No matter what, we recommend that you contact a lawyer as soon as possible. Don’t wait.

Under California law, the statute of limitations for discrimination is one year. You generally have one year from the date of the discriminatory act to get a right-to-sue letter from the DFEH. If you are working with a lawyer, he or she will obtain this letter for you. When you receive the right-to sue letter, you’ll have one year from this date to begin your case in court or arbitration.

However, if you work for a public entity, we highly recommend that you speak with an employment lawyer as soon as possible. The statute of limitations is different for employees of public companies – and can sometimes be as short as six months.

If you are outside of California, we absolutely recommend that you look up your state’s law regarding the statute of limitations. Generally, you have 180 days to file a charge with the EEOC.

Footnotes:

  1. CA Government Code § 12940
  2. CA Government Code § 12926(r)(2)
  3. CA Government Code § 12926(r)(1)