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Gender discrimination comes in many forms for today’s working women

About four-in-ten working women (42%) in the United States say they have faced discrimination on the job because of their gender. They report a broad array of personal experiences, ranging from earning less than male counterparts for doing the same job to being passed over for important assignments, according to a new analysis of Pew Research Center survey data.

The survey – conducted in the summer before a recent wave of sexual misconduct allegations against prominent men in politics, the media and other industries – found that, among employed adults, women are about twice as likely as men (42% versus 22%) to say they have experienced at least one of eight specific forms of gender discrimination at work.

One of the biggest gender gaps is in the area of income: One-in-four working women (25%) say they have earned less than a man who was doing the same job; one-in-twenty working men (5%) say they have earned less than a female peer.

Women are roughly four times as likely as men to say they have been treated as if they were not competent because of their gender (23% of employed women versus 6% of men), and they are about three times as likely as men to say they have experienced repeated small slights at work because of their gender (16% versus 5%).

There are significant gaps on other items as well. While 15% of working women say they have received less support from senior leaders than a man who was doing the same job, only 7% of working men report having a similar experience. One-in-ten working women say they have been passed over for the most important assignments because of their gender, compared with 5% of men.

The survey, which was conducted July 11-Aug. 10, 2017, with a nationally representative sample of 4,914 adults (including 4,702 who are employed at least part time), also asked about sexual harassment in a separate question. It found that while similar shares of women and men say sexual harassment is at least a small problem in their workplace (36% versus 35%), women are about three times as likely as men to have experienced it personally while at work (22% versus 7%).

In more recent surveys conducted by other organizations, the share of women reporting personal experiences with sexual harassment has fluctuated, depending in part on how the question was asked. In an ABC News/Washington Post survey conducted Oct. 12-15, for example, 54% of women said they have received unwanted sexual advances from a man that they felt were inappropriate whether or not those advances were work-related; 30% said this had happened to them at work. In an NPR/PBS NewsHour/Marist poll conducted Nov. 13-15, 35% of women said they have personally experienced sexual harassment or abuse from someone in the workplace.

The Center’s survey asked about sexual harassment specific to the workplace. The survey was conducted as part of a broader forthcoming study on women and minorities in science, technology, engineering and math (STEM) fields.

Differences by education

Among employed women, the share saying they have experienced sexual harassment in the workplace is roughly similar across racial and ethnic, educational, generational and partisan lines. But when it comes to specific forms of workplace discrimination tested in the survey, there are significant differences among women that are rooted mainly in their level of education.

Women with a bachelor’s degree or more education report experiencing discrimination across a range of items at significantly higher rates than women with less education. And in some regards, the most highly educated women stand out. While 57% of working women with a postgraduate degree say they have experienced some form of gender discrimination at work, for example, the same is true for 40% of women with a bachelor’s degree and 39% of those who did not complete college.

Roughly three-in-ten working women with a postgraduate degree (29%) say they have experienced repeated small slights at work because of their gender, compared with 18% of those with a bachelor’s degree and 12% with less education. Similarly, working women with a postgraduate degree are much more likely than their less-educated counterparts to say they have received less support from senior leaders than a man doing the same job (27% of postgraduate women, compared with 11% of women with bachelor’s degrees and 13% of women with less education). The pattern is similar when it comes to being passed over for promotions and feeling isolated at work.

When it comes to wages, working women with a bachelor’s degree or more are much more likely than those with less education to say they have earned less than a man who performed the same job. Women with family incomes of $100,000 or higher stand out here as well – 30% of them say they’ve earned less than a man who was doing comparable work compared with roughly one-in-five women with lower incomes (21%). But overall, women with higher family incomes are about equally likely to have experienced at least one of these eight forms of gender-based discrimination at work.

There are differences by race and ethnicity as well. While roughly half of employed black women (53%) say they have experienced at least one type of gender discrimination at work, fewer white and Hispanic women say the same (40% for each group). One area in particular where black women stand apart is in their reporting of having been passed over for the most important assignments because of their gender – 22% of employed black women say this has happened to them, compared with 8% of whites and 9% of Hispanics.

Women’s experiences with discrimination in the workplace also differ along party lines. Roughly half (48%) of working Democratic women and Democratic-leaning independents say they have experienced at least one form of gender discrimination at work, compared with a third of Republican and Republican-leaning women. These party differences hold up even after controlling for race. The partisan gap is in keeping with wide party differences among both men and women in their views of gender equality in the U.S.; a separate 2017 Pew Research Center survey found Democrats largely dissatisfied with the country’s progress toward gender equality.

About the survey: These are some of the findings from a survey conducted among a nationally representative sample of 4,914 adults, ages 18 and older, from July 11-Aug. 10, 2017. The survey, which was conducted online in English and in Spanish through GfK’s Knowledge Panel, included an oversample of employed adults working in science, technology, engineering and math-related fields. The margin of sampling error based on the 4,702 employed adults in the sample is plus or minus 2.0 percentage points. The margin of sampling error based on the 2,344 employed women in the sample is plus or minus 3.0 percentage points. See the  topline  for exact question wording.

• Business & Workplace
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• Gender & Work
• Gender Equality & Discrimination

Kim Parker is director of social trends research at Pew Research Center .

Cary Funk is director of science and society research at Pew Research Center .

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Gender Discrimination Essay

500 words gender discrimination essay.

Gender discrimination is when there are unfair rights between male and female. It differs because of their gender roles which ultimately leads to unequal treatment in life. Gender discrimination has been around for many centuries. However, as we are evolving, it is time to do away with such notions of gender roles. Thus, gender discrimination essay will take us through it in detail.

Causes of Gender Discrimination

There are many causes of gender discrimination. The first one has to be illiteracy . When people do not educate themselves, they continue to live in the old times. Thus, they follow the old-age sexist traditions and norms.

Education can bring about a change in this mindset because educated people will less likely partake in gender discrimination. Further, poverty is also another reason which is interlinked in a way.

It is the root cause in many places because the economic dependence remains on the male counterparts mostly. Thus, women suffer a lot from it because of the same reason. They never get out of this and stay financially dependent on men.

Furthermore, the patriarchal setup in our society plays a big role. In this setup, the male dominates almost every aspect of life. Thus, they consider themselves to be superior to others.

This way, a lot of violence and injustice is meted out against females. Thus, when there is a gender considering themselves to be superior, it becomes difficult for everyone to avail equal opportunities.

Impact of Gender Discrimination

Gender discrimination has a deep impact on society as a whole. It does not just impact a specific section of the society but every part of it. First of all, it impacts children as they fall prey to gender stereotypes from a young age.

Further, it impacts young people because it impacts their behaviour, study choices, ambitions, attitudes and more. Thus, many girls do not participate in many sports and women experience physical violence more than men.

Next up, we have gender discrimination affecting adults because there is a gender pay gap between the working class. Men earn more for doing the same work as women. In addition, older women have more risk of becoming homeless than men.

It also impacts the aboriginal women because they have it a lot worse. It is more likely to happen that they can die from family violence, 11 times more than men. Even for men, it is not beneficial as it sets difficult standards for men to follow.

It draws a line on men being emotional. Thus, they can never showcase their emotions truly without being judged. Similarly, men do not parental leave in many places. Ultimately, all this results in more suicide in men. Thus, it impacts everyone.

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Conclusion of Gender Discrimination Essay

Gender discrimination must be checked at every stage so that no person should be denied a chance to learn and grow. Thus, everyone, no matter male or female, must get a start in life in terms of educations and other opportunities. We must come together as a society to do this.

FAQ on Gender Discrimination Essay

Question 1: Who is affected by gender inequality?

Answer 1: Gender inequality affects everyone, which includes men as well. Stereotypes about how women and men, girls and boys should be, start from their childhood and follow us to adulthood. Thus, it does not affect just one but all.

Question 2: Give an example of gender discrimination.

Answer 2: There are many examples of gender discrimination. For instance, restriction on clothing. If a man wears shorts, no one will bat an eye. However, if a woman wears shorts, she will be seen in a bad light and be called names. Similar is the case for housework.

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What is Gender Discrimination?

Around the world, individuals, businesses, governments, and other systems discriminate against people based on gender. Cis women and girls are the most recognized target, but trans people face significant gender discrimination, as well. Discrimination harms these groups and society as a whole. In this article, we’ll define gender and gender discrimination, provide three examples of gender discrimination in action, and explain its negative effects.

Gender discrimination occurs when a person is treated negatively or unequally based on their gender. It includes restricted access to education, jobs, and healthcare; unequal pay; sexual harassment; and much more.

What is gender?

Before we talk about gender discrimination, we need to know what “gender” is. The World Health Organization has a decent definition: “Gender refers to the characteristics of women, men, girls and boys that are socially constructed.” When society talks about “gender norms,” it’s referring to behaviors and roles associated with men, women, girls, and boys. While not inaccurate, the WHO’s definition is incomplete because it implies a kind of binary. There are more genders beyond men, women, girls, and boys. The Canadian Institutes of Health Research provides a fuller definition: “Gender refers to the socially constructed roles, behaviors, expressions and identities of girls, women, boys, men, and gender diverse people.” In short, gender is a social construct that varies over time and across societies.

How is gender different from sex? The CIHR defines sex as “a set of biological attributes in humans and animals.” These attributes include chromosomes, gene expression, hormone levels and function, and reproductive/sexual anatomy. Sex is typically categorized as “male” or “female,” but even within sex, categories are more complex than a binary. People can identify with the gender typically associated with their sex (cisgender) or identify with a different gender (transgender). If someone doesn’t identify with an exclusively male or female gender, they may call themselves “non-binary.” If someone is flexible about the gender they identify as they may call themselves “gender fluid.” These identities are considered part of the trans community, but because gender is tied to personal identity and self-representation, there are no fixed rules or definitions. Courses like the ones on this list provide further education on topics like sex and gender.

What is gender discrimination and is it a violation of someone’s rights?

Gender discrimination is when someone is treated unequally and unfairly based on their gender identity. Like all discrimination, gender discrimination is a human rights violation, though the distinction between “gender” and “sex” is a more recent development. Take the Universal Declaration of Human Rights as an example. Article 2 reads: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex [emphasis added], language, religion, political or other opinion, national or social origin, property, birth or other status (emphasis added).” Article 2 covers sex discrimination, but it doesn’t mention gender. This is most likely because when the UDHR was written, gender and sex were considered the same. Times have changed. The phrase “other status” has been used to expand the rights given in Article 2. A press release from the UN describes how the organization and regional instruments have based changes on this phrase.

What does gender discrimination look like?

There are countless instances of gender discrimination fueling gender inequality and gender-based violence. Let’s take a closer look at three examples to see how gender discrimination touches every part of societies around the world:

Paying women less for the same work

The gender pay gap is a global issue. According to the International Labor Organization, women make about 20 cents less than men. There are factors like differences in jobs, education, skills, and experience, but gender discrimination is a significant factor, as well. In the United States, Lilly Ledbetter experienced this firsthand. For almost 20 years, Ledbetter worked in managerial positions at a Goodyear tire manufacturing plant. According to a write-up from the National Women’s Law Center, she faced sexual harassment and discrimination from her boss, who believed women shouldn’t work at the plant. Ledbetter also wasn’t allowed to talk about her salary, so it wasn’t until she got an anonymous note that she learned she was paid less than men in the same position. Ledbetter filed a lawsuit.

The court process was a rollercoaster. First, a jury decided in her favor, awarding her back pay and damages. Then, Goodyear tried to vacate the judgment. It eventually went to the Supreme Court where Goodyear prevailed. The majority reasoned that Ledbetter lost her right to sue for pay discrimination because she hadn’t brought her claim within 180 days of getting the first discriminatory check. This ruling ignored the fact that the discrimination was ongoing and, because of the secrecy around salaries, there was no way Ledbetter could have known she was being paid less. While she may have lost the court case, Ledbetter’s lawsuit led to the Lilly Ledbetter Fair Pay Act in 2009. It resets the 180-day filing period each time discrimination happens. When people work to establish laws like this, they help close the gender gap in Economic Participation and Opportunity.

Restricting education access for girls

Gender discrimination in education is one of the root causes of gender inequality worldwide. Without a good education, individuals are severely limited when it comes to job opportunities. The consequences fan out from there, making a person more vulnerable to poverty, violence, human trafficking, poor health, and more. Globally, girls tend to be targets of discrimination. What’s happened recently in Afghanistan is a prime example.

From 1996-2001, the Taliban did not let girls study. In August 2021, the Taliban regained control in the region and began restricting girls from school once again. At first, the militant fundamentalist group said it would let girls attend secondary school, but in 2022 , they broke their promise. Girls had already shown up to their classrooms only to be turned away. The Taliban’s excuse? They were trying to decide on a school uniform. This is significant because back in 1996-2001, the Taliban didn’t technically outlaw education for girls. They kept saying school closures were temporary and that as soon as things were sorted out, girls could come back. That never happened. Now, people fear the same situation is unfolding today. There have also been restrictions at the university level . At Nangarhar University, girls are only allowed to choose from seven of the 13 faculties. They are not allowed to take subjects like engineering, economics, agriculture, veterinary medicine, and journalism. This is blatant gender discrimination.

Discriminating against trans people in healthcare settings

Trans people face significant gender discrimination. Some of the most consequential discrimination occurs in healthcare settings, which is a big reason why trans people are more vulnerable to health problems. In the largest study of transgender and gender non-conforming people in the US, 19% of participants said they were denied care because of their gender identity. 28% reported harassment in medical settings and high levels of delaying care when hurt or sick because of the discrimination. Half of the participants also said they needed to educate their medical providers on transgender care.

Delaying care because of discrimination and trauma – as well as receiving poor medical treatment – worsen health outcomes for transgender people. A 2019 study from the CDC found that trans people were twice as likely as cisgender adults to receive depression diagnoses. They’re also at a higher risk for asthma and heart disease. This shows a clear link between discrimination and poor health. The medical field needs to address transphobia and ignorance if it wants to stop discriminating based on gender. Some of the courses on this list provide further information on gender and health.

How does gender discrimination hurt everyone?

Gender discrimination impacts a person’s health. According to research compiled in a Medical News Today article , women who reported gender discrimination within the year got higher scores on a depression screening tool. Women also experience higher risks for anxiety, PTSD, and eating disorders. While men are more likely to die by suicide, women are 1.5 times more likely to attempt suicide. The exact reason isn’t clear, but experts believe discrimination plays a role. Gender discrimination also intersects with issues involving race, class, religion, and more, which complicates and compounds the discrimination.

Gender inequality negatively affects everyone, not just its targets. In a study from the Global Early Adolescent Study, gender stereotypes hurt both boys and girls. Boys are often taught to deal with their issues using violence. They’re also less equipped to handle difficult emotions, which could explain why men are more likely to die by suicide. When gender stereotypes exist, anyone who doesn’t fit the stereotypes – whether they’re women, men, or non-binary – faces discrimination. Still not sure of how significant gender discrimination is? It leads to gender inequality, which hurts a nation’s economy. According to the Organization for Economic Co-operation and Development, gender discrimination in social institutions leads to a $6 trillion loss for the global economy. When everyone is allowed full economic freedom and opportunities, it makes sense that the whole economy – and not just individuals and families – benefits. For the sake of everyone in society, ending gender discrimination is essential.

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

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10 Tips to Fight Gender Discrimination

Gender discrimination is alive and well. Here are 10 ways to fight it.

Every organization—and that means the men and women who run companies—must do more to ensure that women have an equal opportunity to lead.

Yes, we have come a long way since 1964, when gender discrimination became unlawful, but we still have a long way to go.

Below I offer 10 ways organizations can increase gender equality from the top down.

1. Get Women on Boards

Greater representation of women on boards of directors is critical. Boards with at least one woman are likely to crush the competition, according to a Business Insider article. Diversity matters!

Having women on boards can also call attention to the elephant in the room at many companies—that there is a boys’ club at the top or at least in certain silos. Power makes it easier to speak up, regardless of gender.

In addition, the presence of women on the board sends a powerful message to executive women and customers that the company “gets it.”

Finally,  Title VII of the Civil Rights Act of 1964 and most state laws do not apply to board positions, where there is no employment status. Therefore, employers can do what they generally cannot do for senior leadership positions—that is, take gender into consideration when filling board positions or even reserve a board position for a woman.

2. Educate Senior Leadership

Both the board of directors and the senior leadership team must understand the legal issues associated with gender discrimination (see sidebar).

Training should also emphasize the business benefits of gender equality, including the talent imperative, connection with and access to customers, diversity of ideas, and supplier diversity. Where there is gender diversity among senior leadership, companies outperform their competitors.

3. Hire and Promote

To increase gender (and other) diversity of the applicant pool, work to:

• Ensure that the minimum job requirements are not so high that they exclude women simply because this group has been denied opportunities in leadership until relatively recently. This does not mean lowering standards but rather assessing them more realistically.
• Increase the diversity of the applicant pool through general and targeted recruiting. Word-of-mouth is not enough.
• Distribute applications to hiring managers without names. Consciously protect yourself from your unconscious bias, which brings us to …

4. Fight Biases

The use of diverse hiring teams that have received appropriate training should help to ensure that neither conscious nor unconscious gender bias plays a part in decision-making. Particular attention should be paid to avoiding:

•     “ Like-me” bias , or hiring managers’ preference for candidates who resemble them. Note that hiring based on whether someone would be a “good fit” can mask unlawful “like-me” bias.
•     Double standards. What’s considered commendably assertive in a man should not be considered unacceptably aggressive in a woman.
•     Gender stereotyping . Guard against impermissible assumptions about women who have or are perceived likely to have children.
•     Discrimination against men . Employers can focus on differences in experiences, perspectives, contacts and styles. However, absent a remedial purpose, narrowly defined, employers generally cannot consider gender in hiring decisions, even when the goal is laudably to increase diversity.

5. Evaluate Work Assignments

Critically evaluate your organization’s work assignment systems to ensure that the work is being distributed fairly and equitably and not based on personal relationships.

The importance of the assignment process cannot be overemphasized. It often determines who has the experience and the connections to rise to the top based on merit. Plum assignments:

• Increase necessary experience.
• Grant exposure to the senior leadership team and sometimes the board.
• Help forge customer/client relationships and the personal return on investment that goes with it.

6. Show Them the Money

We have a gender gap when it comes to pay. It is shrinking, but it is still there.

There are fair questions about whether the gap is solely due to gender. Taking time off to raise a family, whether you are male or female, may play a role.

Let’s assume the gap is 10 percent. (I believe it is higher.) How many men would say “no big deal” to a 10 percent reduction in salary? I know I wouldn’t.

Gender gaps in compensation not only can be attacked in litigation but also can result in less engagement by talented women. So assess and correct areas where gaps cannot credibly be explained; consider conducting the analysis initially under privilege so that plaintiffs’ lawyers cannot take advantage of your good efforts.

7. Practice Social Inclusion

Social inclusion is a big part of business inclusion. In fact, I bristle at the term “social inclusion” because I think it diminishes its importance.

Everyone should make a conscious effort to ensure that social inclusion is, well, inclusive.

For example, there are women who drink and men who don’t. But if the focal point of social inclusion is the local bar after work, more women than men may be excluded either because of caregiver responsibilities or because they want to avoid what they fear they may see.

Also remember that social media is a form of social inclusion and, therefore, business inclusion. Think of the message that is sent if a leader invites his male reports, but not his female reports, to connect with him on LinkedIn.

8. Help with Work/Life Management

Helping employees with the management of work and personal responsibilities is particularly important to those who are primary caregivers, whether they are involved in elder care, child care or both. While more men are (thankfully) leaning in at home, women still are more likely to have heavier burdens in this area.

To help employees manage work and personal commitments:

• Consider whether the number of work hours you demand allows for a personal life. Individuals with heavy caregiver responsibilities may not accept “unreasonable” hours.
• Focus primarily on the bottom line, not face time. It should not matter whether someone finishes a report between 5 and 7 p.m. or 10 p.m. and midnight. What matters is that the report is stellar and on time.
• Be more receptive to telecommuting, at least sometimes for some positions. Yes, on that work-at-home day, personal and work responsibilities may rotate as the focus. But that may be necessary given the long hours every other day.
• Consider offering support for child care and elder care.

9. Evaluate the Evaluators

In my experience, the evaluation process often benefits men as a result of unconscious bias. We need to evaluate the evaluators!

Again, look for “like-me” bias: “He does things the way I do things, so his method is better than others.”

Also look for weak praise (“nice” rather than “strong client relations skills”), code words (“lack of commitment” for women who are juggling work and family commitments), and double standards and criticisms that focus on the woman as opposed to her performance.

10. Include Men

Sandberg states that there is not enough male talent to serve an organization’s leadership needs. Conversely, we cannot solve the issue of gender bias by having only women focus on it. Men have valuable input, too, that must be considered.

Further, it is unfair to place the burden on women only. Women in senior management positions who are asked to focus heavily on women’s initiatives may not have the time they need to focus on their customers.

Of course, to get men involved we must do more than enlighten and invite them. We must support them, too.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at  Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_law

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Research: When Employees Identify with Their Company, They’re Less Likely to Recognize Gender Discrimination

• Jamie L. Gloor,
• Tyler Okimoto,
• Brooke Gazdag,
• Michelle Ryan

Beware the “not here” bias.

Identifying as an organizational member — or feeling a strong sense of attachment to the organization — is generally a positive thing for employees and employers. But our research on workplace incivility and mistreatment shows that it can also shape when — and if — employees recognize and respond to subtle forms of discrimination against women at work. Evidence shows that leaders, as well as employees, play a key role in identifying and remedying gender discrimination in all its forms. If the goal is to proactively address gender discrimination in the workplace and encourage leaders and workers to remove their rose-colored glasses, this article offers a few suggestions.

You’re in the elevator of your office building. The doors open and two coworkers — one male and one female — enter the elevator in a heated debate. The female employee is trying to explain an issue on a project she’s leading, but the male employee interrupts her: “ Geez, I’ve heard enough of you and your opinions!” The woman falls silent, clearly upset and shaken by the comment.

• JG Jamie L. Gloor is a Swiss National Science Foundation professor of Leadership & Diversity Science at the University of St.Gallen in Switzerland. Her research, teaching, and speaking focus on diversity and inclusion, leadership, humor, and sustainability to craft more equitable, enjoyable, and productive workplaces with positive impact.
• TO Tyler Okimoto is a professor of management and academic dean within the faculty of Business, Economics, and Law at the University of Queensland. His research aims to understand the factors that bias employee judgments and lead to discrimination at work, and how organizations can work through biased viewpoints to promote consensus and a greater sense of fairness.

Xinxin Li is an associate professor of management at the Antai College of Economics and Management at the Shanghai Jiao Tong University. Her research focuses on DEI, business ethics, and emotions at work.

• BG Brooke Gazdag is an associate professor and academic director of executive education at the Kühne Logistics University in Hamburg, Germany. Through her research and teaching, she seeks to improve employees’ experience at work through leadership, negotiations, and diversity and inclusion.

Michelle Ryan is a professor of social and organizational psychology and the director of the Global Institute for Women’s Leadership at The Australian National University. Her work centers on understanding the psychological processes underlying workplace gender inequality, and designing and implementing innovative and evidence-based interventions to increase gender equality.

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• Workplace Discrimination
• Gender Identity and Sexual Orientation Discrimination

How To Prove Gender Discrimination In The Workplace

Gender discrimination in the workplace comes in different forms, and unfortunately, still happens today. Usually it involves a job applicant or an employee being treated differently or being treated less favorably because of their gender. Sometimes it is called sex-based discrimination because the individuals are treated differently based on sex. This is in violation of federal laws, as it violates the individual’s civil rights.

Sometimes gender discrimination is in the form of discrimination that is based on your gender. They may not think a woman is capable of doing that job, or they may think it is a job that a man may not feel comfortable doing. Instead, they should offer equal opportunities and chances to all applicants and employees. There are other kinds of gender bias, such as unequal pay and interview questions about having children.

Evidence Needed To Prove Gender Discrimination

To have a successful gender discrimination claim, you will need evidence and supporting documentation. There are different forms of gender discrimination and the supporting evidence that you supply depends on the form of gender discrimination that you suffered. As an example, if your employer engaged in gender-based stereotyping, they may have assumed that because you are a woman you aren’t as physically capable as a man and gave the job assignment to a man automatically because you are a woman.

You will need witness statements, copies of work-related memos and documentation, and other proof of the situation and the history of similar situations in the workplace. Odds are there is a pattern with this specific employer doing this kind of thing. Your workplace law attorney will be able to gather supporting evidence and documentation for your claim.

Be sure to keep voicemails, memos, emails, and texts that may be able to help you proof you suffered from gender discrimination in the workplace. As an example, you were interested in a job within your company that does require heavy lifting. Before you had a chance to interview, you received a text and an email that indicate the job was given to a male counterpart and it said although he had not been with the company as long, he knew he was strong and could handle the manly responsibilities.

 What If I Only Have Circumstantial Evidence?

Sometimes hard evidence may be difficult to get. Circumstantial evidence is sometimes used in court. It is evidence that counts on an interference to connect it to the conclusion of a fact. An example would be you weren’t directly told you weren’t hired for the job because you are a woman, but only men were hired by the company. That could be considered circumstantial evidence.

Direct evidence would be like the previously mentioned email in which it was commented he got the job because he was a man and was stronger. You could still have a successful claim even if you only have circumstantial evidence, and with the help of an attorney, your claim can be built with enough evidence and support to show that you were mistreated and discriminated against.

Basically, your claim will be determined by the intent of the decision maker and if that can be proven. Such cases are very fact-intensive, and unless the employer admits to his or her actions, then you must provide enough circumstantial evidence to convince the court that you were the victim of gender discrimination.

Consult With An Employment Law Attorney

If you have been the victim of sexual discrimination in the workplace, you should enlist the help of an employment law attorney. Employment law attorneys are familiar with the laws surrounding workplace discrimination and other forms of harassment and discrimination in the workplace. Your attorney will gather supporting evidence and documentation. Your lawyer will also know what is needed for your claim to succeed.

Many employment law attorneys take cases on a contingency basis. That means those lawyers are only compensated if - and when - you win your gender discrimination claim . At that point, you will recover a judgment and your lawyer will receive a percentage of that. With strong negotiation skills and investigative skills, and attorney will make sure that you are treated fairly throughout the process.

To make sure your gender harassment in the workplace claim is underway in a timely manner and that you have substantial supporting evidence, complete the Free Case Evaluation Form on this page.

Additional Resources

• Wrongfully Terminated Due To Gender Discrimination
• What to Do - Coworker Is Harassing You Because of Your Gender
• What Does A Gender Discrimination Attorney Do?
• Evidence Needed to Prove Discrimination at Work (with pictures)
• Women’s Equality Day

Updated federal workplace guidelines protect employee gender identity

In first change to the guidance in 25 years, federal agency says repeatedly misgendering employees or denying them access to a bathroom consistent with their gender identity amounts to workplace harassment

Employers who repeatedly misgender their employees or deny them access to a bathroom consistent with their gender identity are committing workplace harassment under federal anti-discrimination laws, according to a new guidance released Monday by the Equal Employment Opportunity Commission.

The changes released Monday mark the first update to the guidelines in 25 years by the federal agency. They are based on legal standards protecting employees from harassment under a protected characteristic: race, religion, color, national origin, disability, age, genetic information and sex. That last category includes pregnancy, sexual orientation and gender identity.

The document reflects legal developments in recent years, including the 2020 Supreme Court ruling Bostock v. Clayton County , Ga., which found that Title VII of the 1964 Civil Rights Act — which prohibits discrimination “because of sex” — protects gay and transgender workers.

Per the new guidelines, an employer who repeatedly and intentionally misgenders an individual by using the “name or pronoun inconsistent with the individual’s known gender identity” or by denying an employee access “to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” is committing unlawful workplace harassment. This, the guidance states, is considered sex-based discrimination under Title VII, which the EEOC says “includes harassment based on sexual orientation or gender identity, including how that identity is expressed.”

The guidance document released Monday consolidates and replaces five of the agency’s previous guidance documents issued between 1987 and 1999, which established guidelines on workplace harassment law. The document is the finalized version of a draft released at the end of last year by the EEOC that received “robust” public input, per the agency.

While the document is not legally binding, it serves as a standard for how the EEOC interprets and enforces anti-bias laws. The federal agency was created under the Civil Rights Act and is tasked with enforcing civil rights laws against workplace discrimination, investigating accusations and filing civil discrimination lawsuits on behalf of employees.

“The guidelines themselves don’t have the force of statute,” said Christopher Ho, the director of the National Origin and Immigrants’ Rights Program at Legal Aid at Work. “Unlike a law that Congress drafts and puts into writing, these don’t have the same effect — they are not legally binding. But that said, numerous courts, including the Supreme Court, have said: Because these guidelines are based on the expertise and careful reasoning of the agency that’s charged with enforcing anti-discrimination laws, they’re to be given deference by the courts.”

The guidelines, Ho noted, are “very carefully considered — they’re not out of thin air.” While the EEOC does not make policy, their guidance reflects “existing authority” applied to “the modern-day situation.”

“I think [an employer] would be very wise, taking the guidelines very seriously,” said Ho, who served on a 2016 EEOC task force on harassment.

The guidance also addresses unlawful harassment in situations involving older workers, immigrants and survivors of gender-based violence, as well as situations of harassment in virtual work environments — a result of the remote work era ushered in by the pandemic.

Charlotte A. Burrows, EEOC chair, said in a statement that the guidance “is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.”

“As we commemorate this year’s 60th anniversary of the Civil Rights Act of 1964, the guidance will help raise awareness about the serious problem of harassment in employment and the law’s protections for those who experience it,” Burrows said.

Some Republicans were unhappy with the guidance. Rep. Virginia Foxx (R-N.C.), who chairs the House Education and Workforce Committee, said in a statement that the EEOC “has detached itself from reality.”

“Today’s final guidance is nothing more than a homage to leftist activists who want Americans to conform to their warped political ideology,” Foxx said. “From the mandated use of pronouns to a denial of biological facts, the EEOC seems more interested in appeasing the mob than undertaking commonsense policymaking to protect workers.”

The agency said in a statement that the guidance was approved by a majority vote of the five-member commission and “reflects the EEOC’s commitment to protecting persons who are particularly vulnerable and persons from underserved communities from employment discrimination.”

EEOC Commissioner Andrea Lucas released a statement expressing her disagreement with the new guidance, saying it “effectively eliminates single-sex workplace facilities and impinges on women’s (and indeed, all employees’) rights to freedom of speech and belief.”

Subhashini Bollini, the co-chair of the National Employment Lawyers Association EEOC working group, said the EEOC’s guidance is on par with the precedent set by recent legal cases. Specifically in the case of the guidance including instances of harassment in the form of misgendering or barring a transgender employee from using a bathroom that matches their gender identity, Bollini said the EEOC is applying the precedent set by Bostock.

“What the guidelines provide is, in plain language, really what these categories of harassment mean in real life,” she said.

The guidance document includes several hypothetical scenarios in which an employer’s actions would amount to workplace harassment. In one scenario, a supervisor who mocks her pregnant employee by, among other things, tracking her use of the bathroom, calling her a “heifer” and berating her work as “shoddy” and “slow” is considered to be partaking in workplace harassment. In another scenario, a supervisor who repeatedly questions a transgender employee about her gender identity and expression and also refers to her using “he/him” pronouns is also considered to be harassing their employee.

Bollini said that, while the guidelines that deal with gender identity may draw more scrutiny than others, “transgender people are employees too, they’re in our workplaces and everybody — transgender people, people of different sexual orientations, people of different races and people of different sexes, are all trying to earn a living.”

“These laws enable people to support themselves, support their families and contribute to society,” Bollini added. “So to deny that … is really saying that certain classes of people should not have those fundamental rights.”

Proving gender and race discrimination in employment

A look at the legal tests for discrimination and the “causal connection” requirement.

To prove discrimination, plaintiffs must provide evidence that they: (a) are a member of a protected class, (b) are qualified for the position at issue, (c) suffered an adverse employment action, and (d) the employer treated similarly situated employees outside of the protected class more favorably (or some other circumstance that suggests a discriminatory motive). ( McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

A plaintiff must also provide proof of a “causal connection” between the employee’s protected status and the employer’s action. ( Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306.) Mixon explains:

While a complainant need not prove that racial animus was the sole motivation behind the challenged action, he must prove by a preponderance of the evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision.

( Id. , at p. 1319, emphasis added. Accord, Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 665; Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1290.)

Proof of gender discrimination

Protected class

Both gender and race are protected classes. (Gov. Code, § 12940(a)).

Qualifications

This element serves as both a minimum requirement and a basis for comparison between the plaintiff and the selected candidate. Qualifications come in many forms of education, skill set and past experience. To the extent that the plaintiff’s qualifications exceed those of the selected candidate, it provides objective evidence that the plaintiff is more qualified.

In terms of education, plaintiffs must establish that they meet the minimum stated requirements. Assuming this, it is helpful to point out specialized education, training or unique experiences that demonstrate that the plaintiff is objectively more qualified than any other candidate(s) who were actually selected.

Performance of job duties over an appreciable period provides some indication of being qualified. For example, in a failure-to-promote case, past favorable performance evaluations provide helpful documentation, both to demonstrate qualifications, and as a basis for comparison between the plaintiff and the candidate(s) selected for promotion. “Employee [performance] evaluations serve the important purpose of documenting an employer’s hiring, promotion, discipline, and firing practices.” ( Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 964.) Favorable performance evaluations, awards and accolades are examples of documentation that demonstrate qualifications.

While evidence of satisfactory performance is helpful evidence, it is not a necessary element of a plaintiff’s prima facie case. (See, Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th, footnote 6.)

Sometimes a selected candidate appears more qualified than the plaintiff due to specialized skills. Often, the candidate has benefitted from performing a special assignment or “acting” duties in the role, before being selected to permanently perform the role. When a candidate is selected after having performed acting duties, or after receiving specialized skills, we refer to that favorable treatment as “grooming” or a “shoulder tap.” If the plaintiff proves to be lesser qualified because the selected candidate received favorable advantages, the perceived greater qualifications of the selected candidate can be characterized as evidence of disparate treatment and an indicator of discriminatory motive. Preferential treatment need not just be selection to a position, it can also be providing preferential experiences which make a chosen candidate outside the protected class appear more qualified than a candidate in the protected class.

Adverse action

“The most obvious types of retaliation are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge.” (EEOC Compliance Manual, Section 8, Retaliation .) However, the FEHA protects an employee with respect to not only so-called “ultimate employment actions” such as termination or demotion, but also “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” ( Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1138.) Yanowitz is the leading case discussing adverse employment actions, and states:

• “[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.”
• Not only “so-called ‘ultimate employment actions’ such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career” are addressed.
• Conduct is examined collectively; may consist of “a series of subtle, yet damaging injuries,” rather than “one swift blow.”

Other examples of adverse actions can include:

• Unfair performance reviews
• Exchange of more important assignments with less important ones
• Denying or removing privileges of employment (i.e., overtime)
• Unfair warnings and discipline
• Not providing documents and/or information necessary for an employee to competently do his/her job
• Barring employee from training
• Excluding employee from meetings, conferences, etc.
• Labeling employee as “a troublemaker” to managers and supervisors in employee’s group
• Refusing a transfer and badmouthing to potential managers about employee’s “bad” performance
• Assigning an employee duties that fall outside of employee’s job description
• Stripping employee of supervisory duties
• Disproportionate reduction of workload and pay (i.e., no overtime)
• Embarrassing the employee in front of his subordinates
• Undermining the employee by removing important contracts or territories
• Forcing the employee to train the subordinate and then promoting the subordinate and not the employee who did the training
• Accusing employee of being confrontational
• Disclosing confidential information about employee to co-workers
• Telling the employee to forget about a promotion or a raise

Direct and indirect (circumstantial) evidence

Derogatory statements based on gender serve as direct evidence of discriminatory motive. In Stegal v. Citadel Broadcasting Co. 350 F.3d 1061 (9th Cir. 2003), the court held that gender bias could be demonstrated by statements made that a female plaintiff was “not a team player” ( Id. , at 1070), “a spoiled brat” ( Ibid .), with a “negative attitude” about her job ( Id ., at 1068). In Stegal, a female broadcaster was terminated nine days after she complained of gender discrimination, sexual harassment and a pay differential based on gender. The manager allegedly expressed being “angry at [the plaintiff] for getting what she wanted and had only been able to do so because she was a woman.” ( Id. , 1063).

Mathieu v. Norell (2004) 115 Cal.App.4th 1174, 1187, provides examples of conduct, which taken collectively, are gender-based indicia of motivating factors to discriminate: “[Plaintiff] complained of the following behavior: (1) Fluck glaring at her; (2) Fluck failing to return Mathieu’s emails, which were essential to the completion of her job duties; (3) Fluck shouting at her and hindering the performance of her duties when she inquired about work-related matters; (4) Fluck turning his back on her when he saw her; (5) Fluck sneering at her; (6) Fluck bumping his shoulder into her in the halls or whispering into someone’s ear when she was near; (7) Fluck shouting at her that he was busy, “get away” and “what the hell do I have to sign that for?” when she approached him; (8) Fluck failing to return paperwork that was essential for Mathieu to complete her job duties; (9) Fluck yelling at her “psycho,” “bitch” and “get out”; and (10) Fluck shouting “let’s walk past the stick,” calling her “Ally McBeal” and commenting that he did not understand how he could ever have been attracted to her. To be sure, all but the last one or two items on Mathieu’s list of complaints bear a stronger resemblance to junior high school-style expressions of personal animus than to harassment on the basis of sex.

In Costa v. Desert Palace, Inc. (9th Cir.2002) 299 F.3d 838, 861-862 (en banc), affd. sub nom. Desert Palace v. Costa (2003) 539 U.S. 90, a finding of gender-based discrimination was supported by facts such as these:

The most prominent example of ... differential treatment was Caesars’ decision to terminate Costa for an incident that netted her male co-worker only a five-day suspension. Costa’s claim that she was shoved against an elevator wall and sustained bruises from the altercation is not one to be taken lightly. The excuse that the management could not figure out whom to believe – Costa or Gerber – is questionable given the strong corroboration of Costa’s story and the inconsistencies in Gerber’s account. . . . The jury was entitled . . . to infer that Costa was fired, while Gerber was only suspended, because Costa was a woman. . . . Finally, the jury could easily have believed that Costa’s record was itself largely a result of discrimination because of repeated incidents of unfair discipline that accumulated over time. For example, her supervisor’s decision to backfill the records with prior alleged misconduct supports such a conclusion.

However, discrimination is a state of mind and, therefore, notoriously hard to prove. Sophisticated employers are well aware that discrimination is illegal. Thus, most cases are established through circumstantial evidence. ( Guz, supra , 24 Cal.4th 317, 354 (“direct evidence of intentional discrimination is rare, and such claims must usually be proved circumstantially.”); Riordan v. Kempiners (7th Cir. 1987) 831 F.2d 690, 697-98 (“Defendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it. ... [A] Plaintiff’s ability to prove discrimination indirectly, circumstantially, must not be crippled ... because of crabbed notions of relevance or excessive mistrust of juries.”].)

Circumstantial evidence of pretext generally relates to such factors as plaintiff’s job performance, the timing of events and how the plaintiff was treated in comparison to other workers. ( Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.)

Proof of race (national origin) discrimination

The same elements of proof necessary for gender discrimination are also necessary for proof of race discrimination. This section provides examples of proof that demonstrate race or national original discrimination.

Racial (and national origin) discrimination occurs in a variety of forms, affecting a variety of different races. For example:

• A single racial slur by a supervisor directed to the plaintiff is enough to withstand summary judgment. ( Dee v. Vintage Petroleum (2003) 106 Cal.App.4th 30 [“Here [the supervisor’s] remark that ‘it is your Filipino understanding versus mine’ is an ethnic slur, both abusive and hostile.”].)
• Fragante v. City and County of Honolulu (9th Cir. 1989) 888 F.2d 591; see also 29 cfr 1606.1. [Filipino employee passed over for employment because of her “heavy Filipino accent”].
• See also, Warren v. City of Carlsbad (9th Cir. 1995) 58 F.3d 439, 443 [fire chief’s derogatory comments about Hispanics create inference of discriminatory motive.]
• Cordova v. State Farm Ins. Cos. 124 F.3d 1145, 1150 (9th Cir. 1997) [decision-maker called another Latino employee a “dumb Mexican” and said he was only hired because he was a minority.]

Racial epithets

Harassment and discrimination laws strictly prohibit the use of the word “nigger” at work. ( McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1116 (“It is beyond question that the use of the word ‘nigger’ is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination.”); Swinton v. Potomac Corp . (9th Cir. 2001) 270 F.3d 794, 817 (describing “nigger” as “perhaps the most offensive and inflammatory racial slur in English, ... a word expressive of racial hatred and bigotry.”); Daso v. The Grafton School, Inc. (D. Md. 2002) 181 F.Supp.2d 485, 493 (“The word ‘nigger’  is more than [a] ‘mere offensive utterance’ ....No word in the English language is as odious or loaded with as terrible a history.”); Rodgers v. Western Southern Life Ins. Co. (7th Cir. 1993) 12 F.3d 668, 675 (“Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’  by a supervisor in the presence of his subordinates.”).

Occasionally, an individual will reference discriminatory treatment of one race, as an indication of a discriminatory atmosphere that tolerates discriminatory practices generally, and the race of the complainer specifically. Where racial slurs have been directed at a minority race of which plaintiff is a member, similar slurs directed at other minorities may contribute to the overall hostility of the working environment. ( Cruz v. Coach Stores, Inc. (2nd Cir. 2000) 202 F3d 560, 570 [A Hispanic employee could complain of hostile environment based on personnel manager’s frequent references to “niggers” in her presence and slurs regarding Hispanics behind her back].) “If racial hostility pervades a workplace, a plaintiff may establish a violation of Title VII, even if such hostility was not directly targeted at the plaintiff.” ( McGinest v. GTE Service Corp . (9th Cir.2004) 360 F3d 1103, 1117.)

Consistent with this, the Ninth Circuit allows the introduction of evidence of discrimination against groups other than the plaintiff’s own. (See e.g. Lam v. University of Hawaii . (9th Cir. 1998) 164 F.3d 1186, 1188 (allowing into evidence a professor’ s racist comments against a black person in a discrimination case based on race, national origin and gender, even though plaintiff was Vietnamese. Also see, e.g., Schwapp v. Town of Avon (2d Cir. 1997) 118 F.3d 106, 112 (holding that it was error to exclude two incidents of discrimination which “reflect[ed] bigotry . . . toward other minority groups” in hostile work environment case); Abramson v. American Univ. (D.D.C. 1988) 1988 U.S. Dist. LEXIS 15818 *4, 54 Fair Empl. Prac. Cas. (BNA) 740 (holding that “evidence that [defendant] discriminated against other minority groups is surely relevant towards the issue of having discriminatory intent in general.”).)

Perceived race

If the plaintiff is perceived as a specific race and faces discrimination based upon that perception, the Ninth Circuit has held that a false perception is sufficient to proceed with a discrimination claim. In Estate of Amos v. City of Page, Arizona , 257 F.3d 1086, 1094 (9th Cir. 2001), a plaintiff alleged discriminatory conduct based upon the perception that the victim was Native American, even though the victim was white. The Ninth Circuit held, “The City’s alleged discrimination is no less malevolent because it was based upon an erroneous assumption.”

The U.S. Supreme Court has recognized that national origin is not limited to the person’ s country of birth; it is a term that refers as well to “the country from which his or her ancestors came.” ( Espinoza v. Farah Manufacturing Co. , 414 U.S. 86, 88 & n.2 (1973).) In addition, the EEOC has a broad view of what gives an individual the characteristic of being of a particular “national origin.” It defines national origin as a characteristic of an individual’s, or his or her ancestor’s, place of origin or the individual’s demonstration of the physical, cultural, or linguistic characteristics of a national origin group. (29 C.F.R. § 1606.1.)

In EEOC v. WC&M Enterprises, Inc ., 496 F.3d 393 (5th Cir. 2007), the Fifth Circuit reversed a district court’s grant of summary judgment to the employer, rejecting an argument that the plaintiff could not state a claim for national origin discrimination because he could not link the discrimination to a particular country of origin. The Fifth Circuit noted that nothing in the EEOC guidelines requires that the discrimination be based on the victim’s actual national origin:

In order to have a claim of national origin discrimination under Title VII, it is not necessary to show that the alleged discriminator knew the particular national origin group to which the complainant belonged .... [I]t is enough to show that the complainant was treated differently because of his or her foreign accent, appearance, or physical characteristics.

( Id. at 401-02 (citing Guidelines on Discrimination Because of National Origin, 45 Fed.Reg. 85,632, 85,633 (Dec. 29, 1980).)

Differential treatment of similarly situated employees, or other circumstances that suggest discriminatory motive

It is well-established that one way to prove pretext and discriminatory animus is to show that others, similarly situated to the plaintiff, were not similarly disciplined or were terminated for similar misconduct or performance issues. ( McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 804 (“Especially relevant to [a showing of pretext] would be evidence that white employees involved in acts against [the employer] of comparable seriousness ... were nevertheless retained or rehired.”); Costa v. Desert Palace, Inc . (9th Cir. 2002) 299 F.3d 838, 854 (en banc) [evidence that female employee was disciplined far more harshly than male coworkers for the same infractions, was denied overtime and medical leave granted to male coworkers, and was supervised more closely than they were, created an inference that sex was a “motivating factor” in her termination supporting a jury verdict in her favor]; Damon v. Fleming Supermarkets of Florida, Inc . (11th Cir. 1999) 196 F.3d 1354, 1363 [plaintiff can prove pretext by showing either that she did not violate the cited work rule or that other employees outside the protected class who engaged in similar acts were not similarly treated]; Spulak v. K Mart Corp . (10th Cir. 1990) 894 F.2d 1150, 1156 (“As a general rule, the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer’s discriminatory intent.”); see also, Kientzy v. McDonnell Douglas Corp . (8th Cir. 1993) 990 F.2d 1051, 1060 [affirming jury verdict for female plaintiff who was fired for going home to lunch based, in part, on evidence that similarly situated male employees were merely reprimanded or suspended]; McAlester v. United Air Lines, Inc. (10th Cir. 1988) 851 F.2d 1249, 1269 [directed verdict in favor of employer, reversed based on evidence that minority employee was terminated for offense that non-minorities were only suspended].)

Evidence of employer’s discriminatory treatment of other employees in the same protected class may create an inference of discriminatory intent towards the plaintiff as a member of the class.

( Becker v. ARCO Chem. Co. (3d Cir. 2000) 207 F.3d 176, 194 n.8.)

Discrimination is based on individual treatment

Employers sometimes attempt to introduce evidence about the favorable treatment of other individuals in the same class. However, the FEHA protects the right of every individual to be judged on his or her own merits, not as a member of a group.

For example, in Connecticut v. Teal (1982) 457 U.S. 440, the high court rejected an employer’s defense that it could not be liable for acts of racial discrimination in promotions if the “bottom-line” result of the promotional process was an appropriate racial balance. Rejecting this argument, the Supreme Court stated:

It is clear that Congress never intended to give an employer license to discrimination against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.

( Id. , at p. 455. See also, Furnco Construction Corp. v. Waters (1978) 438 U.S.567, 579 [“a racially balanced work force cannot immunize an employer from liability for specific acts of discrimination”]; Los Angles Dept. of Water & Power v. Manhart (1978) 435 U.S. 702 [fairness to a class of women employees as a whole could not justify discrimination in pension rates to individual female employees because the “statute’s focus on the individual is unambiguous.”].)

Aggregation of claims

Sometimes, the facts of a case give rise to multiple forms of discrimination. Discriminatory practices often overlap so that the motive for the discriminatory conduct cannot be clearly identified as solely race or gender-based. The law recognizes that race and sex cannot be artificially severed in a sexual-harassment claim. [Civil Rights Act of 1964 §§ 701, 703(a)(1), as amended 42 U.S.C.A. §§ 2000(e), 2000(e)-(2)(a)(1); Stingley v. Arizona , 796 F.Supp. 424 (U.S.D.C. Az 1992); Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)].

In Hicks v. Gates Rubber Co. , the court permitted a black woman to “aggregate evidence of racial hostility with evidence of sexual hostility,” after her racial harassment claim had been dismissed, in order to bolster her hostile environment sexual harassment claim. (Id. at 1416; See also, Nichols v. Frank 42 F.3d 503, 511 (9th Cir, 1994).)

Further, courts recognize causes of action for discrimination based on combinations of protected characteristics.  “[W]here two bases for discrimination exist, they cannot be neatly reduced to distinct components . . . . [W]hen a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors . . . .” ( Lam v. University of Hawaii , 40 F.3d 1551, 1562 (9th Cir. 1994) (emphasis in original); see also, Jefferies v. Harris County Community Action Association , 615 F.2d 1025, 1032-33 (5th Cir. 1980) (“[D]iscrimination against black females can exist even in the absence of discrimination against black men or white women.”).

Legitimate, non-discriminatory reasons

Employers will often attempt to demonstrate that any adverse action(s) taken were based on a legitimate, non-discriminatory reason. For example:

No requisite knowledge of pregnancy condition; failure to meet performance standards. Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133 [summary judgment granted based on plaintiff’s inability to establish employer’s prior knowledge of pregnancy at the time of termination, and unsatisfactory performance.] In Trop , the court found that the following was not direct evidence of pregnancy discrimination: (1) After Trop was fired, Thomas said, “I need somebody here who wants to be here and doesn’t have a life”; (2) When Trop told Thomas she was pregnant after being fired, Thomas said: “What were you thinking? How could you possibly be my assistant and be pregnant? How did you think that ever was going to work?” “Do you want to be pregnant? I had thought maybe [Trop] hadn’t considered all her options, that she had made a mistake somehow.... You know, there are things you can do. You could.... How was she going to take care of him?” “I couldn’t understand how she was going to live her life”; (3) When Trop told Thomas, “Women get pregnant every day,” Thomas allegedly replied, “Well, that was never going to happen here. It would never happen here”; and (4) At the December 2002 Christmas party Trop said, “It looks like I get to have one of my own,” to which Thomas replied, “Not while you are working for me.” ( Id. , 1146-1147.)

Employee’s inadequate technical computer skills. Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794 [job restricting required plaintiff to acquire computer skills].

Comparator’s superior education, training and experience. Schuler v. Chronicle Broad, Co. , 793 F.2d 1010 (9th Cir. 1986) [summary judgment granted against black female employed by television station as a part-time temporary technician for three months, who sued her employer for racial discrimination in giving a permanent job to a white male]; Steckl v. Motorola, Inc., 703 F.2d 392 (9th Cir. 1983).

Loss of confidence in the employee. Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327 [an armored transportation employee first reported experiencing pain and numbness in his arms, fingers, shoulders, and feet (for a year or two), while under internal investigation into missing cash, and under threat of termination pending the investigation outcome].)

Downsizing due to financial difficulty. Martin v. Lockheed Missiles & Space Co., (1994) 29 Cal.App.4th 1718; Cochrane v. Norton, No. C-01-2208 SC 2003 WL 21768006 (N.D. Cal. July 28, 2003); DeMinico v. Monarch Wine Co., Inc., Civ A. No. CV850238PAR, 1986 WL 27578 (C.D. Cal. Mar. 12, 1986)

When developing the narrative that will be used to prepare the complaint, opposing a motion for summary judgment, or presenting evidence at trial, it is important to (a) be mindful of how you will prove the employer’s motivation, and (b) anticipate the employer’s potential defenses. 

Discrimination claims are often difficult to prove, particularly where evidence of discrimination is subtle. Seldom do we have the benefit of direct evidence (e.g., racial epithets, written statements or records). Seldom are there willing eyewitnesses to confirm the discriminatory statement that was said, or the actions taken. By default, proof of disparity in treatment is the predominant method of proving that discrimination has occurred. Hopefully, this paper has provided several helpful examples and authorities for proving discrimination based on gender and race.

Bernard Alexander

Bernard Alexander prosecutes civil rights claims focusing on plaintiff employment discrimination and practices as a civil litigator in both State and Federal Court, where he has tried over 40 cases to verdict. He is the past Chair of the California Employment Lawyers Association (CELA). He created and has managed the CELA Annual Trial College since 2014. He has received recognition as: Joe Posner Award Recipient (CELA) 2016, Top 75 California Labor and Employment Lawyers, by Los Angeles and San Francisco Daily Journal, 2012-2017, American Board of Trial Advocates (ABOTA) Associate member, Fellow - Litigation Counsel of America. California Employment Lawyers Association, (President 2014, 2015); National Employment Lawyers Association (NELA) Executive Board member, Langston Bar Association - Lifetime Member.

Sandra Farzam

Sandra Farzam, a law clerk with AKG, assisted with the preparation of this article.

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Gender Discrimination

Gender discrimination is prejudice or discrimination based on a person’s sexual intercourse or gender. Sexism affects males and females, but especially women of all ages. Gender discrimination implies, treating a man or women adversely solely on the basis of her sex. The following, the term ‘her’ is needed because, women are generally facing this kind of difference in many elements of the world, especially in Australia. There are numerous types of differences shown based on gender and sexual intercourse. The types can cover anything from gravity from office to even chaotic crime.

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Gender Reassignment Discrimination

Anne morris.

• 7 September 2020

IN THIS SECTION

As an employer, it is illegal to treat someone unfairly at work because they intend to undergo, are undergoing or have undergone gender reassignment. It is also unlawful to fail to take timely and appropriate action when others at work discriminate against, or bully or harass someone else, because they are transsexual.

Below we look at what the law says about gender reassignment discrimination in the workplace, including what happens when employers get this wrong and the steps that you can put in place to help prevent this type of discrimination .

This is a developing area of law, with a recent tribunal decision finding that protection of non-binary and gender-fluid individuals falls within the scope of gender reassignment under the Equality Act.

What is gender reassignment discrimination?

Gender reassignment discrimination is where someone is treated unfairly because they are ‘transsexual’, ie; someone whose gender identity is different from the gender assigned to them when they were born. Other more commonly used terminology could include transgender, trans male/female, or simply trans.

The unfair treatment could be a one-off action or series of actions, or even as a result of a workplace rule or policy that is applied equally to everyone but puts a transsexual or trans person at a particular disadvantage.

To be protected from gender reassignment discrimination, a person does not need to have undergone any specific treatment or surgery to change from their birth sex to their preferred gender. This is because changing their physiological or other gender attributes is a personal process rather than a medical one.

What is the law on gender reassignment discrimination?

The law relating to gender reassignment discrimination is set out under the Equality Act 2010. The Act makes it unlawful for a person to be discriminated against, or harassed or victimised , because of one or more of the nine protected characteristics , where gender reassignment is one of these.

All transsexual or trans people share the common characteristic of gender reassignment. This could be where someone who was born male has made the decision to spend the rest of her life as a woman, or vice versa.

To be afforded the protection from discrimination, harassment and victimisation, the person can be at any stage in the transition process, from planning to reassign their gender, to undergoing or having completed this process. This includes anyone who has started the process but then decided not to continue.

Protection is also afforded to anyone dressing in a certain way to express their chosen gender, although those who only choose to temporarily adopt the appearance of the opposite gender, such as transvestites, are not protected under the legislation. This is because their cross-dressing is not part of the process of transitioning to live as their non-birth gender.

What employment protections do transsexual employees have?

Under the Equality Act, all transsexual employees are afforded protection from four main types of discriminatory behaviour in the workplace:

• Direct discrimination: where you treat an employee less favourably than you treat or would treat others because they are proposing to undergo, is undergoing or has undergone all or part of a process for the purpose of reassigning their sex by changing physiological or other gender attributes.
• Indirect discrimination : where a workplace provision, criterion or practice that applies equally to everyone puts a transsexual employee at a disproportionate disadvantage when compared with others.
• Harassment: where a transsexual employee is subjected to unwanted conduct at work because of their gender reassignment, and this has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
• Victimisation: where someone suffers from detrimental treatment at work because they have made or supported a complaint about harassment or gender reassignment discrimination at work, or it is believed they have or may make or support such a complaint.

The Act applies to all employees, as well as job applicants, trainees, contract workers and office holders, such as company directors and partners. The Act also covers all areas of employment including recruitment, training and promotion, terms and conditions of employment, redundancy and dismissal.

Examples of gender reassignment discrimination

Direct gender reassignment discrimination.

Direct gender reassignment discrimination is where you treat someone at work worse than another person in a similar situation because they are trans. For example, having found out that an employee intends to spend the rest of their life living as a different gender, you decide to transfer them into another position, against their wishes, so they no longer have a customer-facing role.

Direct discrimination also covers the following scenarios:

• Discrimination by perception: where you discriminate against a person because you believe they are trans, even if that perception is incorrect, for example, where they occasionally cross-dress or is gender variant.
• Discrimination by association : where you discriminate against a person for being connected with someone who is, or is wrongly thought to be, transsexual. This could include a co-worker, family member or friend.

Indirect gender reassignment discrimination

Indirect gender reassignment discrimination refers to the application of a rule or policy at work that, on the face of it, applies equally to persons who are not transsexual but which particularly disadvantages transsexual or trans people.

An example of indirect discrimination might be where you have a company policy for an employee’s ID tag to always feature their photograph as it appeared on the day they joined the company. However, because they have changed their gender since then, this might cause them significant embarrassment.

Harassment because of gender reassignment

The definition of harassment under the Act is wide enough to include all types of unwanted conduct because of gender reassignment. This could include nicknames, insults, abusive language, threats, jokes, banter, gossip, asking intrusive or inappropriate questions, excluding or ignoring someone, or even excessive monitoring or excessive criticism of someone’s work.

It does not matter if the harassment is intentional or unintentional, and doesn’t necessarily need to be aimed at the person witnessing it. Examples of this might include the telling or tolerating of trans-phobic jokes and the use of derogatory trans-phobic terms as part of an accepted workplace culture.

As an employer, you are potentially liable for the discriminatory acts of your employees where those employees are acting in the course of their employment. This is known as vicarious liability. You are also liable for the harassment of your staff by third parties, such as clients, customers or suppliers.

This means that if you are aware that a trans person is being harassed at work, either by a member of staff or a third party, and you fail to take reasonable steps to prevent this from happening again, you may be breaking the law.

Victimisation because of gender reassignment

This is where someone at work is subjected to a detriment because they have made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of discrimination on the grounds of gender reassignment.

A detriment could include, for example, an employee being denied a pay rise or promotion because they have made allegations of gender reassignment discrimination, or where they have given evidence in support of a complaint made by a transsexual person, even though they themselves are not transsexual.

What are the special protections relating to absences from work?

Under the Equality Act 2010, there are special protections relating to absences from work because of gender reassignment.

This means that if someone is absent from work because of gender reassignment you cannot treat that person less favourably than you would treat any other person off work due to sickness or injury, or due to some other reason and it is not reasonable to treat the transsexual person less favourably.

For example, if you refuse, without good reason, to let someone have time off work to undergo treatment for gender reassignment, or you permit them to take time off but pay that person less than they would have received if they were off sick, this is likely to amount to direct discrimination under the Act.

This protection extends to any medical appointment associated with the gender reassignment process, including taking time off for counselling.

Can gender reassignment discrimination ever be justified?

Direct gender reassignment discrimination, harassment and victimisation can never be justified. However, there are certain circumstances in which indirect discrimination can be objectively justified , as long as you can show that the treatment is a proportionate means of achieving a legitimate aim.

The process of determining whether discrimination is justified involves weighing up the legitimate needs of your business against the discriminatory effect on the group of employees who are trans. Where the same aim could have been achieved in a less discriminatory way, the discrimination cannot be justified.

In rare cases, there may also be strict occupational requirements that preclude a transsexual person from applying, although you would need to show that ‘not being trans’ is crucial to the role. This could be, for example, roles in organised religion, where being trans would not comply with the doctrines of that religion.

Equally, there may be cases where a person is required to be transsexual, for example, a gender identity support leader, although again, ‘being trans’ in this instance, must be crucial and not just one of many important factors.

It is also important to note that you can take positive steps to support transgender people who are under-represented in your workforce or otherwise disadvantaged. This could be by way of encouraging applications from trans people or providing special training. This is known as taking positive action .

What are the consequences of gender reassignment discrimination?

If you get the law wrong in relation to gender reassignment discrimination, even if you are trying to take positive steps to assist transsexual people, or you unintentionally discriminate against a trans person, you may find yourself facing a claim for unlawful discrimination before an employment tribunal.

The importance of understanding and preventing all forms of discrimination at work should never be underestimated. The cost to your business in terms of reputational damage and legal proceedings can be significant.

The Equality Act does not require any minimum length of employment, or any employment at all in the case of a job applicant, for an unlawful discrimination claim to be made. The tribunal also has the power to award one or more of the following three remedies if it finds there has been discrimination:

• A declaration setting out the rights of the parties
• An uncapped award of damages, including an award for injury to feelings and to compensate the individual for any financial loss suffered
• A recommendation that you should take certain steps to remove or reduce the discrimination in your workplace

How can employers prevent gender reassignment discrimination?

Employers should take steps to help prevent gender reassignment discrimination and minimise the possibility of workplace issues, grievances or tribunal claims.

These steps could include a programme of equality and diversity training for all your staff on how different forms of gender reassignment discrimination can arise; putting in place appropriate procedures to deal with grievances, both informally and formally; and reviewing your workplace policies on equal opportunities, dignity at work, and bullying and harassment.

In this way you will help to create a positive workplace culture in which gender reassignment discrimination is not tolerated, and victims or witnesses of discrimination feel able to report any complaints without fear of reprisal.

Need assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR , we can advise on steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts .

Gender reassignment discrimination FAQs

Gender reassignment discrimination takes place when someone is treated unfairly on the basis of their actual or proposed gender reassignment. The unfair treatment could be a one-off action or a blanket workplace rule or policy that puts a transsexual or trans person at a particular disadvantage.

What are the different types of gender reassignment discrimination?

There are four main types of gender reassignment discrimination set out under the Equality Act 2010. These include direct discrimination, indirect discrimination, harassment and victimisation. The Act also affords trans people special protection from being treated less favourably in cases of absences from work because of gender reassignment.

What discrimination rights do trans employees have?

Trans employees have the right not to be treated less favourably at work, put at a disadvantage, or harassed or victimised, because they are transsexual, or perceived to be or connected with someone who is trans.

Last updated: 7 September 2020

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Gender reassignment discrimination and the NHS

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NHS bodies, in their roles as both employer and service provider, increasingly find themselves subject to complaints of discrimination on the grounds of gender reassignment, due to a growing awareness and understanding within the trans community of their rights as employees and patients.

It is therefore important that NHS bodies ensure that they have adequate training and policies in place for the prevention of discrimination against transgender employees or service users.

The two key pieces of legislation that protect transsexual people are the Equality Act 2010 (EqA 2010) and the Gender Recognition Act 2004 (GRA 2004).

The Equality Act 2010

Discrimination under the eqa 2010.

The EqA 2010 provides legal protection from discrimination and harassment. Gender reassignment is one of the nine protected characteristics covered by the Act. A person has the protected characteristic of gender reassignment if that person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex.

Under the Act, a reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person. Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment.

A key point to note about the definition of gender reassignment under the EqA 2010, is that a person who ‘is proposing to undergo’ the process of changing their sex is protected i.e. they need not have undertaken any actual steps towards the process of transitioning. Further, a person living in the opposite gender without having undergone any medical procedures will be protected. Unlike earlier legislation, there is no requirement to be under medical supervision to qualify for protection under the EqA 2010.

There are five types of prohibited discrimination in respect of gender reassignment:

• Direct discrimination – when a transsexual person is treated less favourably than others because of gender reassignment
• Indirect discrimination – where a transsexual person is particularly disadvantaged by a provision, criterion or practice which applies to everyone
• Harassment – when unwanted conduct related to gender reassignment causes an intimidating, hostile, humiliating or offensive environment for that person
• Victimisation – when a person is subjected to a detriment because they have made or supported a complaint about gender reassignment discrimination
• Absences from work – where an employee is treated less favourably in relation to absences from work because of gender reassignment. This is the only type of prohibited discrimination specific to transsexual people

Case example

One issue that employers are likely to face in relation to transsexual employees is use of single-sex facilities. For example, it is likely, and understandably so, that person will want to use the toilet facilities of the gender to which they are transitioning. In the leading authority on this issue Croft -v- Royal Mail Group plc [2003], the Court of Appeal upheld a decision of an employment tribunal that it was not discrimination to require a pre-operative male to female transsexual employee to use the disabled toilet as opposed to the female toilet facilities during the transition process.

However, the approach in this case should not be regarded as best practice. The recruitment and retention of transgender staff guidance issued by the Government Equalities Office (GEO) Guide states that a trans person should be free to select the facilities appropriate to the gender in which they present and that when a trans person starts to live in their acquired gender role on a full-time basis they should have the right to use the facilities for that gender. Further, the Department of Health Guidance for NHS Trusts sets out that it is not good practice to require a transsexual person to use the disabled facilities and it is not acceptable to require a transsexual person to use the facilities of their assigned gender.

Exceptions: when gender reassignment discrimination may be lawful

Gender reassignment discrimination may be permitted in certain limited circumstances. The EqA 2010 provides for an ‘occupational requirement’ exception that employers can rely on in discrimination claims. This enables employers, in limited circumstances, to require that, having regard to the nature or context of the work, only people who are not transsexuals can do the job. The explanatory notes in the EqA 2010 give the following example of an occupational requirement; ‘a counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing victims further distress.’ This may also apply to NHS staff employed to help victims of rape or other sexual assault.

Application to the NHS

In addition to NHS employees, patients must not be subjected to discrimination by NHS Trusts. The EqA 2010 prohibits discrimination by a service provider (concerned with the provision of a service to the public) against a person requiring the service. Therefore, NHS trusts must not discriminate against transsexual patients because they have the protected characteristic of gender reassignment.

However, there is an exception in the Act for single-sex only services (for example, a group counselling session provided only for female victims of sexual assault) but NHS trusts must be certain that the provision of separate services is a proportionate means of achieving a legitimate aim.

NHS bodies must also have regard to the Public Sector Equality Duty set out in Section 149 EqA 2010, which sets out that they must have due regard to eliminating discrimination prohibited by the EqA 2010 and advancing equality of opportunity and fostering good relations between those who share a protected characteristic and people who do not share it.

Gender Recognition Act 2004

The Gender Recognition Act 2004 (the Act) allows transsexual people to gain legal recognition of their acquired gender by registering for a Gender Recognition Certificate (GRC). The application is made to the Gender Recognition Panel who will determine whether a GRC should be issued on the basis that the applicant has lived in their acquired gender for two years and intends to live the acquired gender until death. An applicant does not have to have had gender reassignment surgery, but have been diagnosed as gender dysphoric. Where a full GRC has been issued to a person, their gender becomes for all purposes the acquired gender.

Prohibition on disclosure of information

The Act has important implications for NHS trusts, particularly in relation to the provisions on prohibition of disclosure of information relating to a person’s application for a GRC or, if a GRC is issued, their previous gender. Under section 22 of the Act, it is a criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity to disclose that information to any other person. This clearly affects NHS bodies as employers and in the supply of services to the public, as they are likely to acquire such information in relation to their employees or patients.

An example provided by the workplace and gender reassignment: Guide for staff and managers (a:gender Guide) is of someone working in HR with access to an employee’s personal file, disclosing the fact that the employee was born a different gender, without the employee’s prior consent.

Potential defences

There are a number of defences to this prohibition set out in section 22(4) of the Act. These include where the information does not enable that person to be identified and where the person has agreed to the disclosure of the information.

In addition, there is a further defence which will have particular importance to NHS bodies as service providers. The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No2) Order 2005 provides a defence in relation to disclosure for medical purposes. It will not be an offence under section 22 of the Act to disclosure protected information if the disclosure is made to a health professional, for medical purposes, and the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.

Practical considerations for NHS bodies

The a:gender Guide states that ‘it is the antithesis of the intentions of the privacy provision included in the GRA 2004 to ask or expect an individual to evidence they have gender recognition. Given the wider privacy protection applicable to all, it is best practice to assume any transsexual person has gender recognition and treat them accordingly’.

Care should be taken to use appropriate names and terminology in HR and patient records in relation to transsexual people. Where a person is transgender, it is important not to refer to this fact in patient or HR records unless the person has consented to it. In respect of employees, this may involve issuing them with a new set of HR records.

In relation to transgender patients, NHS/Department of Health guidance is that they should be issued with a new set of medical records to reflect their new gender status. NHS trusts may find themselves in a difficult position when there are medical reasons why a transgender patient’s previous gender needs to be referred to. In these circumstances, the medical professionals should seek consent from the patient for their gender history being recorded in their notes and steps should be taken to ensure that access to those notes is limited to those who need to be aware of the patient’s gender history for clinical reasons.

Department of Health guidance recommends that all staff are trained on these issues in relation to transgender patients and employees. Our specialist employment team can provide training on the legislation in this area and its implications for NHS bodies.

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