In terms of employment, gender and sex discrimination refer to situations in which an employee or a group of employees is harassed or treated differently by an employer, due to their sex or gender identity. This discriminatory behavior may come from various different people involved in the workplace. Some examples may include, but not be limited to:
- Supervisors;
- Managers;
- Human resources personnel; and
- Other co-workers.
These types of discrimination are generally covered by the umbrella term employment discrimination. Employment discrimination is what happens when an employee or potential employee is treated less favorably than other similar employees, solely because of certain characteristics. These characteristics or backgrounds are ones that are protected by law, and may include their:
- Age;
- Sex;
- Gender identity;
- Religion;
- Disability; and/or
- Other categories.
It is important to note that employment discrimination can also occur when one group of employees are treated better than another group, based again on protected classes or categories. An example of this would be when one group of workers clearly receives benefits that are denied to others on the basis of their sex.
Some of the most common examples of gender and sex discrimination include, but are not limited to:
- Not hiring someone based solely on their gender identity or sex;
- Paying one employee less than other employees who perform the same type of work, because of their sex or gender identity;
- Denying an employee a raise, access to benefits, or a promotion because they are or identify with a particular gender;
- Harassing an individual worker, or a group of workers, because of their gender identity or sex; and
- Firing or terminating an employee based solely on their sex or gender identity, and not on their performance.
There is a federal law, known as the Civil Rights Act of 1964 (“Title VII”), which protects against such acts of discrimination. However, states may have varying definitions and requirements for claims involving employment discrimination under their own statutes.
What Is the Equal Employment Opportunity Commission (“EEOC”)?
The United States Equal Employment Opportunity Commission, or the EEOC, is a federal agency responsible for enforcing federal laws against workplace discrimination as previously defined. The EEOC was created to help resolve issues regarding workplace discrimination, such as gender identity and sex discrimination.
The EEOC was created by the Civil Rights Act. Since Congress gave the EEOC the authority to sue employers in 1972, they have aggressively investigated and pursued employers accused of engaging in discriminatory practices. The EEOC has been successful in taking some discrimiation cases all the way to the Supreme Court.
Some examples of what the EEOC most commonly handles include:
Settling Workplace Complaints: This is mostly accomplished through mediation, which is a low cost alternative to the court system. Mediation provides the employer and employee with a chance to resolve their differences more amicably, and potentially preserve their relationship;
Filing Lawsuits: If there cannot be a settlement between the parties, the EEOC may file a lawsuit on the employee’s behalf; and
Conduct Investigations: The EEOC will investigate individual employment discrimination claims in order to gather evidence of any workplace discrimination. They also investigate and work to resolve systematic patterns of workplace discrimination.
EEOC discrimination cases begin by writing a complaint to the EEOC. They will then investigate the complaint and either bring the claim itself, or grant the claimant a “right to sue” letter.This letter allows the party that suffered discrimination to sue their employer in federal court. The EEOC does have the power to directly sue an employer of they believe they are in violation of discrimination laws.
How Do I Prove EEOC Gender Discrimination Cases in Court?
Generally speaking, the burden of proof falls on one party involved in a court case. However, in gender discrimination cases, the burden can shift throughout the process. What this means is that both the employer and the employee will be burdened with providing adequate proof to support their claims.
One type of evidence that should be provided is direct evidence. An example of direct evidence would be recorded from statements exposing your employer’s discriminatory behavior. Another type of evidence would be circumstantial, or indirect evidence. This is a broad category of evidence, and can include literally anything other than a direct statement from your employer so long as it allows for the assumption of discrimination.
An employee must show the following:
- They belong to a protected class;
- The party responsible for the discriminatory act(s) knew of the employee’s protected class;
- Some act of harm occurred, such as suspension or termination; and
- There are others that are similar in terms of employment position and duties, that are treated more favorably or did not face the same adverse treatment.
Is It Hard to Sue for EEOC Gender Discrimination Charges?
It can be difficult to file a gender discrimination complaint. The EEOC has strict deadlines and regulations that you must follow, such as:
Retaliation: Generally speaking, an employer cannot levy adverse or negative employment actions against an employee when they filed a gender or sex discrimination claim against them. An employer cannot retaliate when an employee openly opposes a discriminatory policy. This is sometimes referred to as “whistleblowing.” An example of this would be how an employer cannot legally terminate an employee who has filed a discrimination claim against them, even if that claim turns out to be false or untrue under state laws; and
Employment Advertisements: An employer may not legally limit a job opportunity or posting to only one sex, without a legitimate business purpose. An example of this would be a female-only strip club, or conversely, a male-only strip club.
If you wish to file a workplace discrimination lawsuit before the EEOC completes their investigation, which is a process that may take longer than 180 days, you may request a notice of your right to sue from the EEOC. It may also be obtained if more than 180 days have passed from the day you filed your charge of discrimination with the EEOC, and you ask for the notice to be granted. In such cases, the EEOC must provide you with the notice upon demand. Once received, you must file your lawsuit within ninety days.
It is important to note that if you receive a notice of right to sue before the EEOC finishes their investigation, the investigation will cease and the EEOC will close the case. Because of this, if you wish to allow the EEOC to initiate a lawsuit on your behalf, you should wait for them to complete their investigation.
Should the EEOC find that there is reasonable cause to believe that discrimination has occurred, they may initiate a lawsuit on your behalf. They may also cover the costs of their legal actions.
Do I Need an Employment Lawyer for Help with My Gender Discrimination Case?
There are many benefits to hiring a gender discrimination lawyer. An experienced and local discimination lawyer can help you gather sufficient evidence to support your claim, and can help guide you through the EEOC process.
If you feel you are facing employment gender identity discrimination, it is important that you consult with a local discrimination lawyer. An attorney in your area will best understand your state’s laws regarding gender discrimination, and how those laws may affect your legal options. Finally, your attorney will also be able to represent you in court, as needed.
Jose Rivera, J.D.
Managing Editor
Editor
Last Updated: May 10, 2021
