Sex and Gender Discrimination, As Seen Through California Employment Law

Employers who discriminate against employees based on their gender or sex are breaking the law. Employers who pay workers of the same sex separate salaries for similar jobs are still breaking the rule. Employees who are discriminated against because of their gender will sue their employer for monetary damages. A Labor Law Attorney might be able to help you with employment discrimination claims.

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Is discrimination based on gender illegal in California?

Gender discrimination in the workplace is illegal in both California and the United States. Employer discrimination is illegal in California under the California Fair Pay Act, the California Equal Pay Act of 1949, and the California Fair Employment and Housing Act (FEHA).

Employers who discriminate against an individual because of his or her sex, ethnicity, gender orientation, or gender expression are breaking the law under the FEHA. This contains the following:

• Refusing to employ
• Getting rid of or dismissing an employee
• Refusing to choose a participant in a training program
• Discriminating against an individual in terms of wages or working conditions

Discrimination based on "sex" covers more than just how employers handle men and women, according to the FEHA. It also contains the following:

• Pregnancy or pregnancy-related medical problems
• Childbirth or childbirth-related medical problems.
• Breastfeeding or breastfeeding-related medical problems

Discrimination based on a person's gender is often included in sex discrimination. Gender identity and expression are included in this category. Gender identity refers to a person's gender-related appearance and conduct, which isn't always determined by the sex assigned at birth.

• Unions and labor unions are also forbidden from excluding, expelling, or limiting a person's membership based on their gender. Apprenticeship training programs and job providers are also subject to gender discrimination prohibitions.
• Employers and others may have preconceived notions and gender expectations regarding women's and men's skills, job results, physical abilities, working habits, and productivity. Gender discrimination in the workplace is illegal, and laws banning it are designed to protect all employees by allowing them to work based on their skills rather than their gender.

There are a few exceptions to this rule, such as when an employer handles a group of workers differently. The "bona fide occupational qualification" (BFOQ) defense is used in this situation. The employer must show that the procedure is justified because "all or substantially all of the excluded persons are unable to safely and efficiently conduct the job in question and that the company operation's essence will otherwise be jeopardized."

These BFOQ exceptions are very specific, such as assigning same-sex childcare specialists or health care staff. Hiring a female TSA agent to conduct pat-downs on female passengers may be another exception.

Is it discriminatory to pay male workers more than female employees?

Employers must compensate workers who do "substantially equivalent jobs when considered as a combination of talent, commitment, and obligation and done under similar working conditions," according to the California Equal Pay Act.

The California Fair Pay Act and the California Equal Pay Act are designed to close the pay gap between men and women who hold similar occupations. Employers are prohibited from paying men and women different wages for equivalent jobs unless they can show that the salary disparity is due to one or more of the following factors:

• A meritocracy
• A structure of seniority
• A method for calculating earnings based on the quantity or quality of production.
• Other than sex, a genuine factor (such as education, training, or experience)

If an employer is accused of breaking equal pay rules, the employer must show that the legitimate factor is:

• Not dependent on or derived from a pay gap between men and women;
• Job-related in the context of the job in question;
• In line with a business requirement.
• "An underlying valid business intent so that the factor relies upon efficiently fulfills the business purpose it is meant to serve" is what a "business necessity" is.

And suppose the employer may prove that a legitimate factor other than sex was used to differentiate wages. In that case, the defense is nullified if the employee can show that an appropriate market method exists that would accomplish the same goal without the pay disparity.

Employers who breach the Equal Pay Act are responsible for unpaid salaries and interest to their workers. Additionally, the employee could be entitled to liquidated damages of the same sum.

How do I know if I was treated unfairly because of my gender?

Any of the following is illegal for an employer to do based on your sex or gender:

• Refuse to hire you
• Refuse to accept your application for a training program
• You should be demoted
• Fail to promote you
• You've been fired
• You will be paid less
• Reduce your salary
• Fair pay is denied
• Refuse a promotion
• Refusal of reinstatement
• compel you to give up
• You're being harassed.
• Refuse to take maternity leave.
• Refuse to accept your benefits
• In any way, discriminate against you.

Some workers are subjected to overt or covert gender discrimination. Sex discrimination, on the other hand, often occurs in silence or behind closed doors. Employers are also aware that discrimination based on gender is illegal, and they are careful not to say or write something discriminatory in front of witnesses or in writing.

There are some indicators that an employee is being treated unfairly because of his or her gender. Here are some examples:

• One sex is excluded from important meetings.
• Although one sex is often advertised, the other is not.
• Managers advising a female employee to dress provocatively for a male client
• Working in a hostile atmosphere
• distributing obscene comics or memes
• Sexual abuse on the basis of a trade-off
• Having men and women perform various tasks.
• Unprecedented changes in work performance evaluations
• Retaliating against a worker for disclosing gender discrimination is a form of retaliation.
• Employees who are pregnant are being forced to leave their employment.
• Allowing sexual harassment in the workplace is not a good idea.
• Discrimination allegations are not taken seriously by supervisors.
• Getting rid of a worker who expresses a change in gender identity

Unrelated to Sex Factors

Even if they are not explicitly focused on sex, certain working conditions, hiring practices, and company policies can be unequal to men and women. Discriminatory hiring policies, on the other hand, are those that have a disparate effect on men and women.

An employee must demonstrate that a practice is racially biased. To prevent a finding of discrimination, the employer must prove that the requirement is clearly related to the work. The procedure or regulation, on the other hand, cannot be used as a justification for discrimination.

Job Applicants' Gender

Suppose an employer asks an employee questions like whether he or she is male or female or their height and weight; it is not usually a sign of gender discrimination. On the other hand, these questions should be asked of all work candidates, and the details should only be used for valid record-keeping or screening purposes, not to discriminate.

May I file a complaint with the Equal Employment Opportunity Commission (EEOC) for gender discrimination?

• Gender discrimination is illegal in both California and the United States. The Equal Employment Opportunity Commission (EEOC) is the federal agency in charge of enforcing anti-discrimination laws. At the state level, the California Department of Fair Employment and Housing (DFEH) is in charge of sex discrimination complaints.
• While both state and federal laws protect workers from discrimination based on gender, California law typically provides more protections than federal law, including more time to file a complaint.
• In most cases of gender discrimination, the victim must first exhaust disciplinary options before bringing a complaint against the employer. This can imply that the employee must first file a complaint with the DFEH. On the other hand, your solicitor will file a complaint with the DFEH and receive an automatic right to sue notice without having to go through the administrative process.
• A report of gender inequality may be filed directly with the DFEH. In general, within three years of the last instance of discrimination, abuse, or retaliation, you must file a pre-complaint investigation. The complaint can be made online, over the phone, or using the DFEH's online form. The pre-complaint review will lead to an intake interview with the DFEH, which will help decide if a complaint should be considered for investigation.
• Within 60 days, an Employment Law Attorney will contact the person who filed the complaint to clarify the specifics of the investigation. If a DFEH delegate decides that a complaint cannot be considered, the case will be dismissed, and the employee will have the right to sue their employer in court immediately. If the representative acknowledges your pre-complaint inquiry, a complaint will be prepared and sent to the employer for your signature. The case may also be lodged with the Equal Employment Opportunity Commission (EEOC).
• The DFEH will check the response after the employer responds to the complaint. In certain cases, the DFEH will provide dispute resolution services and enable the employee and employer to solve the problem. The DFEH will launch an investigation if the case cannot be resolved by negotiation.
• Whether there was a breach of California law, a gender discrimination investigation would be conducted. The case will be sent to the DFEH Legal Division if the investigation reveals a breach. The case will be dismissed if there is no infringement. After the case is dismissed, the employee has the right to go to court right away.
• The parties are usually required to go through mediation by the DFEH Legal Division. Mediation is a form of alternative conflict settlement in which a neutral mediator assists the parties in reaching an amicable agreement. Mediation has the advantage of allowing the boss and employee to come up with their own solution to the conflict rather than leaving it up to a judge to determine.
• If the parties are unable to resolve their differences through mediation, the DFEH can file a lawsuit on the employee's behalf against the employer. If the DFEH does not prosecute the allegation, the case will be closed, and the employee will have the right to file a complaint against the employer immediately.

Sexual Harassment as a Form of Discrimination Against Women

Both men and women have the right to work in a secure workplace free of sexual harassment and bullying. When sexual harassment or a hostile work atmosphere is ongoing, it puts a strain on victims that can affect their job performance, cause depression, or even contribute to retaliation. An Employment Law Attorney with the right facts will put an end to this sexism.

Discrimination based on gender can take many forms in the workplace, including:

• Pay disparities
• Employ conditions that are unequal
• Reduced chances of advancement or promotion
• Discrimination against pregnant women (e.g., Family and Medical Leave Act retaliation)
• Harassment of women

Men may be subjected to gender discrimination in certain cases. If you believe you have been subjected to workplace sexism, you can consult with an Employment Law Attorney who will examine the facts of your case and recommend possible solutions.

When a Workplace Begins to Be Abusive

If an employee's work atmosphere is rendered offensive or intimidating as a result of widespread harassment based on a protected attribute, such as race or sex, a hostile work environment occurs. A hostile work environment may be contributed to or created by managers, subordinates, customers, clients, and colleagues. To have an argument, you do not need to be threatened with being fired or demoted.

Instead, if you want to keep an employer accountable under the FEHA for hostile work environment abuse, you must prove that:

• You worked for the defendant's company;
• Because of your protected status (such as being a woman, being of a certain race, being 40 or older, having a disability, being of a certain national origin, being of a certain color, or belonging to a certain religion), you were subjected to unnecessary harassment.
• The harassment was widespread or severe;
• In your case, a rational person would have considered the work environment to be abusive or hostile;
• You considered the work environment to be abusive or aggressive on your own;
• Either a supervisor was involved in the harassing conduct, or the defendant was aware of the abuse and refused to take sufficient disciplinary action.
• You've been harmed;
• The harassing conduct played a significant role in the damage you experienced.

By demonstrating the same elements and arguing that the actual defendants engaged in, aided in, or facilitated the abuse, an Employment Law Attorney will be able to hold individual people accountable for harassment, such as bullying colleagues.

Sexual harassment is a prevalent type of harassment in a hostile work environment. Sexual harassment can take many forms, including sexual innuendos, inappropriate jokes or pranks, abuse, threats, explicit photographs, unwanted sexual advances, groping, and touching. To be called harassment, however, the offending conduct does not have to be blatantly sexual. Even if you have not been groped or propositioned, if you are regularly bullied with general comments about women and the women in your department are frequently pranked in an offensive manner, this may be a hostile work atmosphere. The sexual attraction is not needed to drive the acts. An Employment Law Attorney will help you determine if your conduct is likely to escalate into a hostile work environment.

It's important that the conduct is unwelcome and serious, or widespread. A single comment or a minor and isolated incident would not be considered actionable hostile workplace abuse. The entirety of the circumstances, including how abusive the bullying behavior was, how frequently it occurred, the number of days you were harassed, and the context of the abuse, would be considered by the court.

Do you have to deal with a bully at work?

Do you believe you work for someone who is a bully? Do you find yourself being threatened by and dreading working with a certain coworker on a daily basis? Are you being screamed at, mocked, and put down on a regular basis at work? Is there any reason this conduct isn't acceptable? Is a coworker talking over you in meetings, criticizing your job, or taking credit for it?

If you answered yes to all of these questions, you're probably one of the 54 million people in the United States who have been bullied at work.

• How do you know if you need to confront a bully?

• In addition to the behaviors mentioned above, you'll know you're dealing with a bully if the bully continually points out your mistakes. Worse, the bully spreads rumors about you, lies to coworkers, and even undermines and sabotages your efforts.
• The issue isn't because you're shy or retiring; it's that you feel intimidated to attend those meetings, you stop heading into the lunchroom based on who's eating there, or you take a break before attending company events for employees. Examine your interactions with a specific coworker. You may discover that he or she is harassing you.
• You can have a bully coworker or supervisor if you hate going to work.
• If your boss refuses to assist you, as according to the study cited below, they always do, even if it's simply because they don't know what to do themselves, these are the steps to take to fight the bully.

• You're Not Alone: Bullies can be found in a variety of workplaces.

• Workplace bullying was described as "repeated mistreatment of an employee by one or more employees; abusive behavior that is: threatening, humiliating, or intimidating, work sabotage, or verbal violence," according to their 2017 National Survey. According to the Workplace Bullying and Trauma Institute (WBTI),
• 50% of Americans have never been harassed or observed bullying, but 19% have been bullied, and another 19% have witnessed bullying at work.
• Abuse in the workplace is something that 61 percent of Americans are aware of.
• Workplace bullying affects 60 million Americans.
• Bullies make up 61 percent of the population.

• Hispanics are the group that bullies most often harass.
• Bullying is more common among men (70 percent), and women are the most common targets of bullies (60 percent ). Female bullies also harass other females (80 percent ).
• Employees who are bullied account for 29% of those who remain quiet about their experiences.
• 71 percent of employer responses are detrimental to bully targets in the workplace.
• Sixty-five percent of targets lose their jobs as a result of workplace bullying.
• 40% of bullied people suffer from stress-related health issues, such as crippling anxiety, panic attacks, and psychiatric depression.

Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.

• Set boundaries for how much you'll tolerate from a bully.

• Most importantly, once you've mentally established a cap, exercise your right to tell the bully to stop. You may want to practice these measures with a friend so you'll be more confident when the bully strikes.
• Describe the bully's behavior—don't give any thoughts or editorialize. Just describe what you see. Don't accuse me of being cruel and unkind. Addressing the bully When you're talking to a tyrant, this is pointless commentary.
• Tell the bully precisely how his actions are affecting your job. Since so much of my work is confidential, these acts make me feel compelled to hide what I'm working on or adjust computer screens, which wastes my time.
• Tell the bully that you would not tolerate his or her actions in the future. You are not to join my cubicle unless I invite you to do so in the future. Your acts are not welcome in my private workspace.
• Continue to make your point, and if the bully infringes on your personal space, escalate to a confrontation. You can't let the bully get away with it one more time, or all the hard work you've put in will be for naught.

• Keep a record of the bully's behavior.

• Keep track of the date, time, and specifics of any incidents in which you feel bullied or are the victim of bullying behavior. If another employee observed the incident, make a note of it. Documentation, especially documentation of the bully's effect on business performance and progress, gives HR the details they need to work on your behalf if you ultimately seek support from Human Resources. The bully isn't just hurting your feelings; he's also sabotaging the success of the business.
• Maintaining a hard copy of the trail of emails and texts and file them in a folder on your computer if the bullying happens by email, texts, or correspondence. You'll need witnesses and dated documents if you plan to press charges in the future.

In California, may I sue my employer for sex discrimination?

Workers who are discriminated against because of their sex or gender will file a discrimination lawsuit against their employers. Before filing a case in civil court, an employee must usually file a complaint with the DFEH or the EEOC.

Before your case can be brought to court, you must first receive a "right to sue" notice. Without having to go through a full DFEH or EEOC investigation, you will request an automatic right to sue notice. If you receive a Right-to-Sue notice, however, DFEH will not investigate your complaint. Alternatively, you should go to court after the DFEH dismisses the complaint or finds no infringement.

Going to court without first having the DFEH investigate is only recommended if you have an Employment Law Attorney, according to the DFEH. Your Employment Law Attorney will receive a right to sue notice and file your complaint in Superior Court in California, in the county where the discrimination occurred, or in another relevant county.

Your boss, as well as everyone else included in the case, will be served with the complaint. The defendants will file a formal response to the charges in response to the complaint, and the case could go to trial. The employer and the complainant or employee will reach a settlement and settle the case out of court at any time before the conclusion of the trial.

In a California job discrimination case, what are the payable damages?

The amount of compensation available in an employment discrimination case is determined by the form of discrimination and the severity of the damage. Financial damages, punitive damages, and equitable remedies are all possibilities.

Losses as a result of job discrimination can include:

• Reimbursement
• Front pay
• Increased earnings as a result of a promotion
• Higher-income from a raise
• Benefits
• Benefits from pensions
• Payments of bonuses
• Pain and suffering
• Emotional anguish
• Employees who have been discriminated against may also be entitled to attorney's fees and expenses.

Punitive damages may also be available to an employee. Punitive damages are intended to punish the wrongdoer's actions and to prevent the employer or other employers from repeating the same wrongdoing in the future.

In cases of job discrimination, reinstatement is another option. If an employee was fired because of their gender, a court would order the employer to rehire them. However, the employee does not always choose to return to the discriminatory workplace as a result of this solution.

Is it possible for my employer to fire me for disclosing discrimination?

Staff in California cannot face retaliation for speaking out against workplace discrimination.

Employees who are subjected to retaliation under the FEHA are protected from retaliation for:

• Taking a stand against sexual discrimination
• Defending other workers from gender discrimination
• Making a complaint of sexual harassment or discrimination
• Assisting with proceedings by the DFEH or official inquiries
• Making a claim for harassment or discrimination

An employer cannot retaliate against an employee for reporting discrimination or harassment or filing a sex discrimination complaint, including firing them. Wrongful firing occurs when an employee is fired for making a harassment or discrimination lawsuit.

Suppose an employer retaliates against an employee for reporting FEHA violations. The employee may be entitled to file a complaint with the DFEH or sue the employer for unfair termination or retaliation.

Exceptions to the "at-will" work contract

In California, the majority of employment relationships are "at-will employees," which ensures that an employee can be fired at any time and for any reason. However, there are a few exceptions to the general rule of at-will jobs under California labor law. There are some of them:

• There's an "implied arrangement" that says you can't fire anyone unless there's a legitimate reason.
• A violation of an implicit covenant of good faith and fair dealing by the employer
• Wrongful termination in contravention of public policy (for example, firing an employee for refusing to assist an employer is breaking the law or performing a lawful duty)

Misrepresentation/Fraud

The implicit contract and public policy theories of unfair dismissal are the most helpful of these exceptions to at-will jobs for most fired workers.

An "implied contract" is an arrangement that both parties understand even though they haven't signed a written document to prove it.

By releasing an employee handbook outlining clear reasons why workers might be fired, and/or by telling an employee in person that his or her job is secure as long as s/he doesn't do those things, an employer may establish an implicit contract not to fire an employee without cause.

If an employee is fired for refusing to cooperate with an employer in performing illegal or socially unacceptable actions, this is known as wrongful termination in breach of public policy. For example, if an employee is fired for refusing to assist an employer in violating federal fraud laws, the employee will have a legitimate argument for unfair termination based on public policy.

Defense for whistleblowers

So-called "whistleblower" retaliation is a common type of wrongful termination in violation of public policy. When an employer fires an employee for reporting a possible legal breach by the employer to the government or a law enforcement agency, this is known as whistleblower termination.

Labor Code 1102.5 LC is California's current whistleblower protection statute. This statute states that employers should not discriminate against employees who report an alleged breach of law by the employer against a government or law enforcement agency or to a supervisor or other employee with authority to investigate or correct the violation (including by wrongfully firing them).

Other statutes offer more precise safeguards for whistleblowers.

Employees of publicly traded firms, for example, may sue for wrongful termination under the Sarbanes-Oxley Act of 2002 (a statutory law intended to protect investors from false accounting by public companies), which gives them the right to report alleged securities fraud to the federal government or a supervisor.

The California False Claims Act's "qui tam" clause is another relevant whistleblower statute. An employee can sue their employer on behalf of the state government under California's qui tam rule. This is so whether the contractor defrauded the government or embezzled government funds.

If an employer fires or retaliates against an employee for filing a qui tam lawsuit, the employee has the right to sue for unfair termination or qui tam retaliation.

Under the Fair Employment and Housing Act, wrongful dismissal is prohibited.

The Fair Jobs and Housing Act, California's key state law banning workplace harassment and discrimination, makes it illegal for employers to discriminate against workers who report harassment or discrimination.

• Defend yourself from abuse and prejudice.
• Make a harassment or discrimination report.
• Testify or help with any harassment or discrimination investigation or litigation.

Wrongful Termination

Employees will sue their employers for wrongful termination under California's "wrongful constructive termination" / "constructive dismissal" rules, even if they are not fired from their employment. When an employer finds working conditions so unbearable for an employee that he or she has no choice but to resign, this is known as a constructive termination.

• When an employee is wrongfully terminated, he or she will be entitled to sue for constructive wrongful termination.
• His or her employer deliberately developed or allowed working conditions that were so unbearable that a relatively reasonable employer would expect a reasonable employee to resign as a result;
• It would not have been legal for the employer to fire the employee outright (because of an informally implied oral contract or because termination would have been against public policy).

Moreover, some California workplace retaliation laws ban employers from retaliating against workers in ways other than termination or constructive termination, such as whistleblower retaliation and FEHA retaliation.

Activities in politics

Employees in California will be able to sue their employers for unfair firing if they are fired for engaging in protected political actions or speech.

The United States Constitution's First Amendment does not refer to private-sector terminations.

• However, under California labor law, employers are not allowed to regulate or guide their employees' political activities or voice. As a result, an employee who is fired for political activism will sue for unfair termination.
• If a California employee is fired for joining a trade union or engaging in union activity, they will be able to file a wrongful termination case.

WARN Act

• An employer's failure to comply with California's Worker Retraining and Notification (WARN) Act is another form of wrongful termination.
• Before mass layoffs of fifty (50) or more workers or closing or relocating a plant, California's WARN Act allows employers to give employees sixty (60) days notice. It is applicable to all employers with at least 75 workers.
• Employees can sue for compensation and benefits for the period the notice falls short of 60 days if the employer fails to provide a 60-day notice.

Find An Los Angeles Employment Lawyer for Discrimination Claims

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