Employment Discrimination Attorneys

Sex Or Gender Discrimination In Employment

Sex or gender discrimination is the act of treating individuals differently in their employment because an individual is a woman or a man.

Title VII of the Civil Rights Act of 1964 protects individuals from discrimination based upon sex, and makes it illegal for an employer to factor in sex and gender in workplace decisions that affect hiring, firing, and other conditions of employment, such as promotions, raises, and other job opportunities.

When sex and/or gender-based assumptions factor into workplace and employment decision making, sex discrimination may be taking place. Examples may include:

• Being rejected from a promotion involving overnight travel for assumptions based on gender stereotypes; i.e.: an equally qualified female being passed over for such a promotion while a male co-worker of equal or lesser qualifications receives the position based on the theory that a husband might be jealous or the female (but not the male) worker would not want to be away from her children.
• Being asked about family and/or child-rearing responsibilities during a job interview.
• Being denied a promotion or pay raise based on evaluations that factor in gender stereotyping, such as a female employee dressing too much “like a man” or not acting “feminine enough.”
• Being paid less than a co-worker of equal capabilities, performance, and experience due to sex or gender.

Can an Employer Argue a Specific Sex is Essential to a Particular Job?

Theoretically yes but probably not. There may be a situation legally known as “bona fide occupational qualification,” or BFOQ, as noted in Title VII of the Civil Rights Act of 1964; this provides for a very limited number of situations in which an employer can argue sex is an essential part of a particular job. A legitimate example might be hiring a female actor to play a wet nurse.

However, considering jobs as “men’s jobs” or “women’s jobs” tends to deny job opportunities to one sex over the other, and as such constitutes sex discrimination. This may include:

• Hiring more men versus women on the assumption that there is more turnover with women due to child-rearing responsibilities.
• Being denied a position, raise, or interview opportunity based on gender stereotypes, such as the belief that males may not be as nurturing with children as females in employment involving children, or women may not as assertive as men and therefore less capable of salesmanship.

Sexual Harassment

Sexual Harassment is also a form of illegal sex discrimination. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are examples of sexual harassment. Sexual harassment may include:

• Innuendoes, jokes or gestures of a sexual nature
• Displaying of sexually-suggestive objects, photos or drawings
• Flirting
• Touching or other bodily contact
• Blocking or impeding physical movement

These may are be all types of sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile or offensive work environment.

When considering a sex discrimination case, the courts will also look at factors such as:

• Do you belong to a protected class? In the case of sex discrimination, this would mean any time sex and/or gender is factored into employment decision making.
• Have you been subjected to adverse employment actions? This would likely include things such as a demotion, suspension, exclusion from training, failure to promote, or termination.
• Job qualification. You must be able to demonstrate that you are as qualified as other employees of the opposite gender.
• Have you suffered adverse affects? You should be able to demonstrate that you have suffered injury due to sex discrimination, such as lost wages, lost promotional opportunity, or emotional distress.

Contact our Employment Discrimination Attorneys

If you feel you have been subjected to sex discrimination or harassment in the workplace, you may benefit from a consultation with the employment lawyers at Zipin, Amster & Greenberg.