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Sex and Gender Discrimination in the California Workplace

Many believe sex and gender discrimination in the workplace are the same as sexual harassment in the workplace. However, the two are very different. Sex or gender discrimination consists of treating an individual differently in the workplace specifically because of their gender or sex rather than harassing them or basing a raise or promotion on whether a person will engage in sexual relations with a supervisor.

It is also important to note the distinction between the terms “gender” and “sex.” The term “sex” is generally used to refer to the anatomy of males and females. “Gender,” is generally used for the characteristics associated with traditional male or female attributes. While gender identity generally matches anatomical sex, this is not always true.

Just How Far Have Women Really Come in the Employment World?

Although women have come a long way from the discrimination struggles faced in the previous century, there is still plenty of inequality when it comes to a woman’s role in the working world. Some statistics to support this statement include:

  • Nearly half of the current U.S. workforce are women (46 percent), with 75 percent of American women participating in the labor market;
  • For every dollar men earn in the workforce, women make 77.5 cents;
  • The higher education a woman has, the greater disparity in wages between the woman and her male counterparts;
  • In 99 percent of all occupations, women earned less;
  • No matter the field of work, women will earn less over their lifetime than their male counterparts—over a period of 47 years of full time work, this gap amounts to $700,000 in lost wages for high-school grads all the way to $1.2 million for college graduates;
  • Women must work significantly longer to receive a promotion and higher pay, and
  • Four out of ten businesses in the U.S. have no women in senior management positions, yet there are about 9.1 million women-owned businesses in the U.S., comprising about 40 percent of the total number of businesses.

Examples of Sex and Gender Discrimination Faced by Women

There are plenty of examples of discrimination due to sex and gender, which are routinely experienced by women in the workforce. Some of those include:

  • Giving women in sales less desirable territories or client bases;
  • Refusal of management to allow women to wear pants in the workplace;
  • Discrimination against a woman because she does not “act like a woman;”
  • Discrimination against an employee or applicant due to sexual preference or orientation;
  • Paying women with equal levels of experience and skills than a man in the same position;
  • Hiring men over women because the company feels their clients are more comfortable dealing with men;
  • Letting women with more seniority go before men with less seniority when making cutbacks or layouffs;
  • Promoting a less qualified man, despite the excellent qualifications of a woman in the company;
  • Passing over a woman with young children for a promotion which would require frequent overtime, assuming she would not want to be away from her children that often.
  • Paying women returning from maternity leave less pay, or changing her job classification, and
  • Refusing to offer health insurance benefits to a woman’s husband, under the assumption he receives health insurance through his job, while the wives of male co-workers are fully covered.

How are California Workers Protected from Sex or Gender Discrimination?

Title VII of the Civil Rights Act of 1964 and the Equal Pay Act protect individuals from discrimination based on sex, making it illegal for employers to discriminate against an individual due to their sex or gender when making hiring, firing, promotion and salary decisions as well as other employment decisions. California Government Code 12940-12951 also addresses the issue of sex and gender discrimination in the workplace.

In the state of California, a business must have a minimum of five employees in order for an employee to be able to file a sex and gender workplace discrimination case. The EPA requires men and women be paid equally for equal work within the same establishment. Title VII requires proof of intent to discriminate on the basis of sex or gender, while the Equal Pay Act requires no such proof of discriminatory intent.

Can Sex or Gender Ever Be a Qualification for a Specific Job?

In very limited situations, Title VII makes an exception to prohibitions against sex and gender discrimination. These situations occur when sex is an essential part of a job (known as a bona fide occupational qualification or BFOQ). Bona fide occupational qualifications do not include jobs which have historically been considered men’s or women’s jobs. In other words, refusing to hire a well-qualified woman for a position as an industrial plumber is sex discrimination. A television show which needs an actor to play the mother of three small children is a bona fide occupational qualification.

What Can Victims of Sex and Gender Discrimination Expect in Compensation?

If you are the victim of sex or gender discrimination in the state of California, you may be entitled to several forms of compensation in the event your lawsuit has a positive outcome. You could be entitled to:

  • Back pay;
  • Front pay;
  • Hiring (if you were refused a job because of your sex or gender);
  • A promotion;
  • Reinstatement to your old job if you were fired due to sex or gender;
  • Compensatory damages including emotional pain and suffering;
  • Punitive damages if your employer willfully or maliciously discriminated against you in the workplace;
  • Attorney fees;
  • Expert witness fees, and
  • Court costs.

Which Law Should You File Under?

For employment discrimination litigation, workers can either bring a complaint under the California Fair Employment and Housing Act or Title VII of the Civil Rights Act of 1964.

Most workers will choose to bring Action under the California Fair Employment and Housing Act because there is a slightly longer statute of limitations, a jury verdict is not required to be unanimous and there are potentially unlimited punitive damages. The process begins by filing a complaint with the appropriate department, after which the employee has the immediate right to sue, or to undergo the administrative process of the department.

As with any discrimination in the workplace case, sex and gender discrimination cases can be complex. It is definitely to your advantage to speak to a California employment attorney who is well-acquainted with the laws and statutes of limitations which apply to your particular case.

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