Legal Guide to Gender Discrimination in the Workplace in 2019
What is gender discrimination?
Gender discrimination in the workplace refers to negative or unfair treatment in the workplace because of a person’s gender. While men and women are all victims of gender discrimination in US workplaces today, women tend to suffer more than men (42% vs. 22%).
Types of gender discrimination in workplaces
Gender discrimination in the workplace can take many forms. The main forms include:
- Discrimination in recruitment, remuneration, and layoff
- Unequal pay for equal work
Gender stereotypes can take several forms in the workplace. For instance, you shouldn’t be expected to take on specific tasks or responsibilities just because you are a woman or a man. Using gender stereotypes or outdated views about different genders to assign as well as deny tasks/responsibilities is a form of gender discrimination.
Being harassed or treated indifferently at work because of your gender also amounts to gender discrimination. For instance, being harassed or frustrated so that you can quit after disclosing that you are pregnant is a form of gender discrimination. The rights of expectant employees to equal opportunities, due leave and getting back to work, among other protections are provided for under US federal and state laws.
Although sex and gender tend to be used interchangeably, the terms are notably different. While gender discrimination focuses on cultural or societal traits associated with male/female identity, sex is an anatomical identity. However, gender discrimination can occur if an employee is harassed based on sexual orientation i.e., for identifying as transgender or gay.
Sexual harassment can qualify as gender discrimination. It can take several forms from hostile workplace harassment to quid pro quo harassment. If you are “required” to cope with sexual harassment or act on sexual demands to get hired or promoted, you are a victim of gender discrimination. This also applies to sexual harassment extended to members of the LGBTQ community.
3. Discrimination in recruitment, remuneration, and layoff
Being discriminated because of your gender during, hiring, promotions, when being given benefits, job classification, or when being fired is prohibited under local, state, and federal laws in the US. Gender discrimination can also occur if a qualified employee is denied a job, promotion, fired or denied benefits because of their gender, sexual orientation, or gender identity. Job advertisements that are exclusively for one gender can qualify as gender discrimination if there are no justifiable grounds for excluding applicants by gender. The same applies to testing. Recruitment tests or tests issued in workplaces should be the same for both genders unless there is a justifiable reason for providing different tests.
4. Unequal pay for equal work
Women tend to be paid less in workplaces. Although pay gaps between genders can be justified by factors such as occupation chosen, hours worked, education as well as job experience, if you are a woman and do the same work as a man, you are entitled to equal pay. The same also applies to men who do the same work as women. Discriminating someone based on gender mainly because they are working in an industry or field dominated by the opposite gender is prohibited by labor rights laws specifically, the (Equal Pay Act or EPA of 1963).
Being fired, frustrated, or rendered redundant for pointing out unequal gender treatment in your workplace is a form of gender discrimination.
Important: Gender discrimination can take many other direct and indirect forms in workplaces today. The importance of legal advice from a gender discrimination lawyer can’t, therefore, be overemphasized.
Gender discrimination statistics in workplaces in the US
According to Pew Research Center Survey report, 42% of women in workplaces in the US claim to have been subject to gender-based discrimination against 22% for their male counterparts. According to the recent report, the discrimination spans from unequal pay for the same work done by male counterparts to sexual harassment and being denied promotions and important assignments.
Gender discrimination by income (pay gap)
25% of women in US workplaces earn less than their male counterparts doing the same job while only 5% of male employees are affected by the pay gap.
Gender discrimination by perception (competency and promotions)
Women are four times more likely to raise gender discrimination issues in workplaces (23% vs. 6%) with most feeling they aren’t treated like they are competent. 15% of women employees feel they receive less support than their male counterparts doing the same job against 7% of men who feel the same way. 10% of women against 5% of men believe they have been denied a promotion because of gender-related issues.
Sexual harassment statistics
According to the 2017 survey conducted nationally, although both genders are subject to sexual harassment in workplaces, women tend to be victims more than men (22% vs. 7%). Majority of women are subject to unwanted/inappropriate sexual advances at work. 35% admit to experiencing sexual abuse or harassment in their workplace.
Gender discrimination by education
Women who have a bachelor’s degree or higher educational qualifications report being discriminated more than women who are less educated. Discrimination includes receiving less support from their seniors to being isolated and denied promotions compared to similarly educated male counterparts. What’s more, discrimination increases with qualification given 57% of women employees with postgraduate degrees feel all forms of gender discrimination against 40% of women who have a bachelor’s degree.
Gender discrimination by race/ethnicity
53% of black women employed in the US have experienced one or more forms of gender discrimination in their workplaces against 40% of white and Hispanic women.
Gender discrimination laws in workplaces
Equal Pay Act (EPA of 1963)
On 10th June 1963, the then US president, John F. Kennedy signed the EPA into law. The law was an amendment to an existing law (the FLSA or Fair Labor Standards Act) to prohibit employment discrimination on gender in regards to pay. This law is enforced by the EEOC. It is expanded on the Civil Rights Act Title VII.
Title VII, Civil Rights Act 1964
The Equal Pay Act offers protections on gender-based wage discrimination in the workplace only. Title VII covers all forms of employment discrimination, including gender and sex discrimination. The law doesn’t expressly protect individuals of other sexual orientations or gender identities. However, the EEOC has protections for such individuals, and the EEOC’s interpretation of the 1964 Title VII has been supported by many court decisions. Federal law also prohibits gender-related discrimination like pregnancy discrimination.
Title VII applies only to employers with 15 or more workers/employees. The law applies on a local, state, and federal level. It is also applicable to private & public colleges/universities, labor organizations, and employment agencies. Employers are prohibited from gender-based discrimination when; hiring/firing, compensating, promoting/transferring/recalling, recruiting, testing employees, offering fringe benefits, training, and any other conditions/terms of employment that discriminate an employee or potential employee based on their age.
California’s FEHA (Fair Employment & Housing Act)
States like California have their own state laws applicable to public and private employers, employment agencies, and labor organizations. The FEHA prohibits employers who employ 5 or more people from discriminating against job applicants, employees, contractors, interns, and volunteers. This law is more stringent than any anti-discrimination law applicable to California workplaces.
How to stop gender discrimination in the workplace
I. Collect/document evidence
The best way to stop gender discrimination in the workplace is to take legal action against the parties involved. Before you do this, you must collect evidence. Write down detailed accounts of the gender discrimination cases, including the dates, people involved (including witnesses), places, and time. Keep the information safely.
II. Report the incident/s to your employer
Although there are risks, such as retaliation when you report gender discrimination cases at work, taking this route can be important. If your employer doesn’t address the problem, you have proof of inaction on their part if the case reaches trial. When reporting, make a formal report and/or record engagements with management on the matter. It is important to familiarize yourself with the personnel manual or any written policies on discrimination or conduct.
III. Forward your complaint to the relevant agency
You can report gender discrimination to the EEOC. However, state agencies, if present offer more protections. If you live in California, the (DFEH) department of Fair Employment & Housing will offer more protections. You can choose to file a lawsuit directly by getting a Right-to-Sue notice. You’ll need a workplace discrimination attorney in such a case. It’s also important to use an attorney from the onset to navigate the complex processes of filling workplace-related gender discrimination complaints and claims. What’s more; the DFEH investigates violations of the law only, and in most workplace discrimination cases, the DFEH doesn’t accept cases for investigation.
Your chances of winning and getting a good settlement are also higher when you work with a workplace discrimination lawyer who understands discrimination law to the letter. Discrimination lawyers are also the best-placed professionals to help you navigate statutes of limitations when filing administrative charges and collecting evidence as well as when arguing the case out and negotiating for a settlement.
Gender discrimination in the workplace cases
The US has seen many high profile gender discrimination cases in workplaces. Here’s a quick summary of some companies sued for gender-based discrimination in the US.
Women discrimination in the workplace cases
1. Microsoft vs. Katherine Moussouris
Between 2010 and 2016, female employees working at Microsoft filed 108 sexual harassment complaints, 119 gender discrimination cases, 8 retaliation and 3 pregnancy discrimination cases with Microsoft’s HR department. The 238 complaints were revealed in court documents filed by a female employee, Katherine Moussouris, in a gender discrimination lawsuit in 2015 against Microsoft.
Moussouris worked for Microsoft from 2007 to 2014. She claimed she was denied promotions that were given to less qualified male colleagues. Moussouris was joined in the suit by two other Microsoft employees, Dana Piermarini, and Holly Muenchow. However, the preceding judge James Robart failed to give the case class-action status. The three will have to sue Microsoft individually. The case is before the United States Court of Appeals.
2. Quest Diagnostics & AmeriPath
QuestDiagnostics & AmeriPath have been sued in the past for widespread workplace discrimination against women. In 2012, the two labs agreed to settle and pay $152 million to over 5000 current and former women employees. The labs also agreed to spend an additional $22.5 million to enforce new HR policies and procedure.
Male discrimination in the workplace cases
US companies have also been sued for male discrimination in workplaces. Some notable cases include;
1. Ventura corporation vs. Erick Zayas
Beauty products wholesaler, Ventura Corporation has been at the center of a male discrimination case. The wholesaler was sued by the EEOC for refusing to hire male sales reps and subjecting complainants to unfair dismissal. According to the suit, the EEOC found Ventura Corporation guilty of discriminatory practices for promoting an employee, Erick Zayas to a Zone Manager role after raising concerns about the company’s discriminatory policy only for him to be “set up” for failure and terminated in what appeared to be a retaliation. Ventura Corporation settled the suit in 2014 by paying $354,250 including a $150,000 payment to Zayas.
2. Yahoo vs. Gregory Anderson
In 2014, Gregory Anderson, an employee working in the Yahoo media division, was dismissed. He filed a workplace discriminatory case against Yahoo claiming the tech giant’s performance management system used as a basis for firing him was unfair. According to the suit, Yahoo utilized a number ranking system when evaluating employee performance and fired employees who attained the lowest scores. The suit also alluded to the fact that women were favored over men when firing based on low scores. The case was ruled against Anderson based on the fact that he didn’t provide concrete evidence besides his feelings showing his dismissal was as a result of his gender.
3. Lawry’s: Gender discrimination case
This case has to be the most famous male discrimination in the workplace class-action suit. Lawry’s – a California based corporation which operates restaurants all over the US had a “habit” of hiring female waitresses only. Their only reason was – it was “tradition”. In 2016, a class action suit against the corporation which reached settlement with the EEOC saw the corporation settle for $1,025,000.